7.0 Rules for Continuing Employment and Other Special Rules
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 the employee’s 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 his or her employment and has a reasonable expectation of employment at all times.
These situations constitute continuing employment:
- Approved paid or unpaid leave on account of the employee’s illness or pregnancy; maternity or paternity leave; vacation; study, union business; a family member’s illness or disability or other temporary leave that you have approved.
- 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 otherwise resolved through reinstatement or settlement.
- Transfer from one distinct unit of an employer to another distinct unit of the same employer; you may transfer the employee’s Form I-9 to the receiving unit.
- Seasonal employment.
Continuing employment with a related, successor, or reorganized employer, as long as the employer obtains and maintains records and Forms I-9, where applicable, from the previous employer. 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. You will be liable for any errors or omissions on the previously completed Form I-9. You and/or the employee should make any corrections to the acquired employee’s existing Form I-9. For more information, see Section 8: Correcting 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 e-verify.gov.
To determine whether an employee continuing their employment had a reasonable expectation of employment at all times, you should consider several factors, including (but not limited to) whether:
- The individual was employed on a regular and substantial basis. You can determine “regular and substantial basis” by comparing other workers who are similarly employed by the employer.
- The individual complied with the employer’s established and published policy regarding his or her 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.
- Another worker has not permanently taken the individual’s former position.
- The individual has not sought or obtained benefits during their absence from employment that are inconsistent with an expectation of resuming employment within a reasonable time.
- Your financial condition allows the individual to resume employment within a reasonable time.
- The oral and/or written communication between you, your supervisory employees, and the individual indicates the individual will likely resume employment within a reasonable time.
Inspect the previously completed Form I-9 (and, if necessary, update the form or reverify the employee) and store the form as if there was no interruption in employment.
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.