In today's immigration enforcement climate, I-9 compliance in an absolute must for all U.S. employers. Since November 7, 1986, employers have had to complete a Form I-9, Employment Eligibility Verification, for each employee on the date of hire, or otherwise face penalties and fines. Even if an employer hires only authorized workers, it can still be penalized and fined for failing to properly complete and maintain the I-9s. This month, USCIS posted the latest, June 2011 version of the I-9 Handbook for Employers ("M-274") on its website, revealing new guidance for employers.  The new handbook includes updated guidelines on rehiring employees and reverifying an employee's employment authorization.  

Rehiring an Employee 

If the employer rehires an employee within 3 years of the original hire date, the employer may complete a new I-9 or rely on a previously completed I-9 and update section 3. This is allowed if the employment was interrupted, but was still continuing because there was a reasonable expectation of employment. Examples include approved leave for study, illness or pregnancy, seasonal employment, and continuing employment with a related, successor or reorganized employer, as long as the employer obtains and maintains the I-9s and records from the previous employer. But complexities arise when the employer rehires the employee multiple times over many years (aka the "revolving door" employee). There was disagreement over whether you calculate the 3 years from the "original hire date" or from the last date the person was hired. USCIS clarified the answer on page 19, stating:

"If you rehire an employee within three years of the date that his or her previous Form I-9 was completed, you may complete a new Form I-9 or you may be able to rely on the previously completed Form I-9 in certain circumstances." (emphasis added)

Many employers already follow this practice  and electronic I-9 software often provide automated methods to determine whether a new I-9 is needed. The new guideline really benefits employers of seasonal workers as it is easier to complete Section 3 when updating or reverifying employment authorization.

Reverifying an Employee's Employment Authorization   

Reverification of an employee's employment authorization is necessary when there is an expiration date involved (e.g. H-1B status and Employment Authorization Documents issued by USCIS). There is a minor change to the reverification instructions on page 19, which relates to the rehire instructions. It adds the following point #5:  

"You must reverify the employee on a new Form I-9 if the version of the form you used for the previous verification is no longer valid. Please check www.uscis.gov/i-9 for currently valid Form(s) I-9."

By adding point #5, USCIS clarifies that if you rehire an employee within 3 years of the previous I-9, and in the meantime a new I-9 version is issued, you do not have to complete a new I-9 if you are just "updating" the form because the prior work authorization is still valid.  If reverification of the employee's employment authorization is needed, however, the employer must use a current version of the I-9. Because the list of acceptable documents may change, USCIS wants to ensure that employers comply with the latest list of acceptable documents when reverifying an employee's employment authorization.  

I-9 Policies and Practices

Employers should refer to the latest I-9 Handbook to determine whether their policies and procedures comply with the rules. Employers that conduct self-audits, train  internal staff in I-9 verification, and maintain and follow written I-9 compliance programs are viewed more favorably by government auditors if problems are discovered during a government audit.