HR Question of the Month

Use and Reverify I-9 for Rehire?

Question

The original date of a signed I-9 Form was in September, 2014. Our employee then left employment in October, 2018, but was rehired a month later in November. I understand a new I-9 Form needs to be completed for Section 3. Am I required to keep the original I-9 Form and attach a new Section 3 to the front? The documentation verification has not expired from the original I-9 Form so I do not think I need to re-verify documentation.

Answer

Only in cases where a former employee is rehired within 3 years of the date that a previous I-9 was completed can the employer use and seek to re-verify the original I-9 Form and its accompanying documents. See USCIS Completing Section 3, Reverification and Rehires for additional information.

You advise that the original I-9 Form was completed in September of 2014, and you are thus correct that a new Form I-9 should have been completed upon the employee's rehire in November of 2018 -- including presentation to the employer of acceptable documentation evidencing employment eligibility and identity.

The employer cannot and should not seek to rely upon the documentation that was presented in 2014 (even if it has not expired) for purposes of completing the Form I-9 upon rehire in 2018. If the employer did not properly complete the I-9 Form when it rehired the employee in question last November (perhaps by not reviewing acceptable documentation), we recommend that it seek to do so now. The new Form I-9 should then include an attached memo or note to indicate the discrepancy and when/how it was rectified.

As for retention of the first I-9 Form, note that employers are required to retain such Forms for one year from the date of discharge, or three years from the date of hire, whichever is longer. Here, the initial period of employment from 09/2014 to 10/2018 exceeded three years, so the employer must ensure it retains the original I-9 Form for at least one year from the date of the October 2018 discharge. See USCIS Retaining Form I-9 for more information.

Want to know more? Listen to our podcast on Form I-9.

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