Documenting Work Authorization on I-9 with Machine Readable Immigrant Visa

In conducting an I-9 audit this week, the following question arose: If a former employee is rehired, does the employer need to fill out a new Form I-9? Does the employer need to E-verify him again? Does it matter if the employee’s identity document is still valid?

This is the situation:

Employee was hired in 2014. Employer properly completed an I-9 and created an E-verify case when employee was hired. Employee quit in 2015. Employer stored the original I-9 in a binder for terminated employees. Employee is now rehired in 2016. The identity document he used in 2014 is still valid.

Questions:

Does the employer have to complete a new Form I-9? Does the employer have to E-verify this employee again? Does it matter if the identity document the employee presented for the original I-9 is now expired?

Answer:

According to USCIS, “if you rehire a former employee within three years of his previous hire date, you may rely on the information on his previous Form I-9.“

So, no the employer would NOT have to complete a new I-9 for an employee rehired within 3 years of his first date of hire. The employer would only have to complete the “rehire” portion of Section 3 of the original Form I-9 that the employee completed when he was first hired. However, IF the employer chooses to complete a new Form I-9 on this rehired employee, then the employer would also have to run a new E-verify case on this employee as well.

Answer regarding expired vs. non-expired identity document used in original I-9:

USCIS provides specific guidance on when to create a new E-verify case for a rehired employee whose identity document used on the original I-9 is now expired. USCIS does not provide guidance on when an employer has to create a new E-verify case for an employee whose identity document is still valid.

If the identity document the employee used in the original I-9 when first hired is now expired, USCIS specifically gives employers the option to run or not run a new E-verify case. If the employer chooses to complete a new I-9 on the rehired employee, the employer must also create a new E-verify case. If the employer chooses to update Section 3 of the original I-9, the employer does not have to create a new E-verify case.

Based on USCIS’s guidance that employers do NOT have to run e-verify on rehires with expired identity documents, we can infer that employers also do NOT have to run E-verify on rehires with still valid identity documents.

The specific language from USCIS guidance (with my emphasis added) is below:

“If you rehire an employee for whom you created an E-verify case and the employee’s previous Form I-9 lists an expired identity document (List B), then you may either:

1. Complete Section 3 of the employee’s previous Form I-9 and NOT create a new case for the employee in E-verify, OR 2. Complete a new Form I-9 for the employee AND create a new case in E-verify.”

Sources: uscis.gov/e-verify/questions. Handbook for Employers: Guidance for Completing Form I-9 (M-274)

Leyla Galmarini McMullen, Business Immigration Attorney MDIVANI CORPORATE IMMIGRATION LAW FIRM 7007 College Blvd., # 460, Overland Park, KS 66211 USA Phone :: 913.317.6200 Email :: LMcMullen@uslegalimmigration.com

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 NOTICE 
Corporate Immigration Compliance Institute does not provide legal advice or engage in the practice of law. The information provided during training and included in the training materials is general information on the topics covered; it not intended to be a fully comprehensive analysis of the subjects addressed. If you have questions about specific applicability of laws, rules and regulations to your specific situation, or other questions of a legal nature, those questions should be directed to your legal counsel.

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