Form I-9: Rehired employees and reverification

When an employee is rehired within three years of the date that the previous Form I-9 was completed, an employer always has the option of completing a new Form I-9. An employer can also use Supplement B when an employee is rehired.

To use Supplement B when an employee is rehired:

• Complete the last name, first name, and middle initial fields at the top of the page.
• Review the original Form I-9 and confirm that it relates to the employee.
• Determine whether the employee is still authorized to work. Check to see whether the employment documentation in Section 2 or a previous reverification has expired, or has been auto-extended.
• If the employee is still authorized to work, enter the date of rehire in the space provided on Supplement B.
• Sign and date Supplement B

Employers do not need to reverify a rehired employee’s identity (List B) document that has expired, as long as it was unexpired when the employee first presented it.

When an employee's reverify a rehired employee:

• Enter the employee’s name at the top of the supplement page in the spaces indicated. The name entered in the top row is the same name that is in Section 1 of the Form I-9.
• Record the date of rehire;
• Enter the employee’s new name, if applicable.
• Record the title, number, and expiration date (if any) of the document(s) the employee presents; and
• Sign and date Supplement

After Supplement B has been completed, it is attached to the employee’s previously completed Form I-9. Additional supplement pages are used when necessary.

An employer may choose to complete a new Form I-9 for rehired employees. If the employer chooses to complete a new Form I-9, it must be attached to the old/original form and both must be kept for the applicable retention period.

An employer must complete a new Form I-9 when a hire takes place, unless the employer is rehiring an employee within three years of the initial hire date. However, in certain situations, a hire is not considered to have taken place despite an interruption in employment. In case of an interruption in employment, the employer should determine whether the employee is continuing in his or her employment and has a reasonable expectation of employment at all times.

The following situations constitute continuing employment:

• Approved paid or unpaid leave on account of study, illness or disability of a family member, illness or pregnancy, maternity or paternity leave, vacation, union business, or other temporary leave approved by the employer.
• Promotions, demotions, or pay raises.
• Temporary layoff for lack of work.
• Strikes or labor disputes.
• Reinstatement after a disciplinary suspension for wrongful termination found unjustified by any court, arbitrator, or administrative body, or otherwise resolved through reinstatement or settlement.
• Transfer from one distinct unit of an employer to another distinct unit of the same employer; the employer may transfer the employee's Form I-9 to the receiving unit.
• Seasonal employment.
• Continuing employment with a related, successor, or reorganized employer, provided that the employer obtains and maintains, from the previous employer, records and Forms I-9 where applicable. A related, successor, or reorganized employer includes:
  • The same employer at another location;
  • An employer who continues to employ some or all of a previous employer's workforce in cases involving a corporate reorganization, merger, or sale of stock or assets;
  • An employer who continues to employ any employee of another employer's workforce, where both employers belong to the same multi-employer association and the employee continues to work in the same bargaining unit under the same collective bargaining agreement. For these purposes, any agent designated to complete and maintain Forms I-9 must record the employee's date of hire and/or termination each time the employee is hired and/or terminated by an employer of the multi-employer association.

To determine whether an employee continuing in his or employment had a reasonable expectation of employment at all times, the employer should consider several factors, including, but not limited to:

• Whether the individual was employed on a regular and substantial basis. A determination of a regular and substantial basis is established by a comparison of other workers similarly employed by the employer.
• Whether the individual complied with the employer's established and published policy regarding his or her absence.
• Whether the employer's past history of recalling absent employees for employment indicates a likelihood that the individual in question will resume employment with the employer within a reasonable time in the future.
• Whether the former position held by the individual has been taken permanently by another worker.
• Whether individual has sought or obtained benefits during his or her absence from employment with the employer that are inconsistent with an expectation of resuming employment within a reasonable time in the future.
• Whether the financial condition of the employer indicates the ability of the employer to permit the individual in question to resume employment within a reasonable time in the future.
• Whether the oral and/or written communication between employer, the employer's supervisory employees, and the individual indicates that it is reasonably likely that the individual will resume employment within a reasonable time in the future.

If it is determined that an employee had a reasonable expectation of employment at all times, the employer should continue to maintain and store the previously completed Form I-9 as if there was no interruption in employment. It is advisable to inspect the previously completed Form I-9 and, if necessary, update the form or conduct a reverification.

If, on the other hand, the employer determines that the employee was terminated and is now rehired, and the rehire occurs within three years from the date the original Form I-9 was completed, the employer may have an option to complete a new Form I-9 or rely on the original Form I-9.