8.0 Leaves of Absence, Layoffs, Corporate Mergers and Other Interruptions of Employment

8.0 Leaves of Absence, Layoffs, Corporate Mergers and Other Interruptions of Employment

You must complete a new Form I-9 when a hire takes place, unless you are rehiring an employee within three years of the date of their previous Form I-9. 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, you should determine whether the employee is continuing in their employment and has a reasonable expectation of employment at all times.

These 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 disciplinary suspension for wrongful termination found unjustified by any court, arbitrator or administrative body, or other- wise 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 Form I-9 where applicable. A related, successor or reorganized employer includes:
    • The same employer at another location;
    • 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 Form I-9 must enter 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.
    • Employers who have acquired or merged with another company have two options:

Option A: Treat all acquired employees as new hires and complete a new Form I-9 for every individual. Enter the effective date of acquisition or merger as the employee’s first day of employment in Section 2 of the new Form I-9.

If you choose Option A, avoid engaging in discrimination by completing a new Form I-9 for all of your acquired employees, without regard to actual or perceived citizenship status or national origin.

Option B: Treat all acquired individuals as employees who are continuing in their uninterrupted employment status and retain the previous owner’s Form I-9 for each acquired employee. Note that you are liable for any errors or omissions on the previously completed Form I-9.

Employees hired on or before Nov. 6, 1986, who are continuing in their employment and have a reasonable expectation of employment at all times are exempt from completing Form I-9 and cannot be verified in E-Verify. For help with making this determination, see 8 CFR 274a.2(b)(1)(viii) and 8 CFR 274a.7. If you determine that an employee hired on or before Nov. 6, 1986 is not continuing in their employment or does not have a reasonable expectation of employment at all times, the employee may be required to complete a Form I-9.

Federal contractors with the FAR E-Verify clause are subject to special rules regarding the verification of existing employees. For more information, see the E-Verify Supplemental Guide for Federal Contractors at uscis.gov/e-verify.

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

  • 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.
  • The individual complied with the employer’s established and published policy regarding their absence.
  • The employer’s past history of recalling absent employees for employment indicates the likelihood that the individual in question will resume employment with the employer within a reasonable time in the future.
  • The former position held by the individual has not been taken permanently by another worker.
  • The individual has not sought or obtained benefits during their absence from employment with the employer that are inconsistent with an expectation of resuming employment within a reasonable time in the future.
  • 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.
  • 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.

Continue to maintain and store the previously completed Form I-9 as if there was no interruption in employment. Inspect the previously completed Form I-9 and, if necessary, update the form or conduct reverification.

If you determine that your employee was terminated and is now rehired, and the rehire occurs within three years from the date the original Form I-9 was completed, you have an option to complete a new form or rely on the original one.

Last Reviewed/Updated:

CHAPTERS