Immigration Law Insights

For many, the summer is a time for relaxation. For HR professionals, it can be a time of flux. In an academic setting, for example, students and teachers who worked on campus during the fall and spring semesters may be leaving for the summer break. Alternatively, student workers and temporary faculty may come in to fill summer-only positions. Also, students taking a break from classes may be getting summer internships or off-campus jobs to earn extra money. As employers gear up for the summer, it is important to distinguish between a rehire and continuing employment for purposes of I-9 record compliance.

Form I-9 is completed when an employer hires an employee to perform labor or services for wages or other remuneration.[1] If the employee is rehired within three (3) years of the date of their previous Form I-9, a new Form I-9 is not required but Section 3 must be completed by the employer. If the rehire is beyond three years from the previous I-9 completion, a new I-9 must be completed. However, certain interruptions in employment do not constitute a new hire or a rehire. An employee who is continuing his employment and has a reasonable expectation of employment at all times may not be considered a new hire and is not required to complete a new I-9. Examples of situations warranting a "reasonable expectation of employment at all times" include: approved paid or unpaid leave on account of study (i.e. students on summer/winter break); illness or disability of a family member; illness or pregnancy; maternity or paternity leave; vacation (i.e. teachers on summer/winter break); or other temporary leave approved by the employer. Other situations may include transfer from one distinct unit of an employer to another distinct unit of the same employer; seasonal employment (i.e. "tourist season" or positions filled during the winter holidays); or continuing employment with a related, successor, or reorganized employer (i.e. university or company consolidation/merger).

To determine if your employee satisfies the reasonable expectation of continued employment test for purposes of I-9 completion, employers should consider the following factors:

• Was the individual employed on a regular and substantial basis similar to others in the same job?
• Did the individual comply with the employer's established and published policy regarding temporary absences?
• Is it likely the employer will call the individual back to work within a reasonable time?
• Will the individual's job be available when he or she returns or has it been taken over permanently by another worker?
• Has the individual sought or obtained benefits during the absence from employment which are inconsistent with an expectation of resuming employment within a reasonable time in the future (e.g., severance and retirement benefits)?
• Does the financial condition of the employer indicate its ability to permit the individual to resume employment within a reasonable time in the future?
• Does communication between the employer and the individual indicate it is reasonably likely the individual will resume employment within a reasonable time?

If it is determined the employee is a continuing employee despite the interruption in work, examine the previously completed Form I-9 to ensure there are no additional necessary updates required (i.e. reverification of certain employment authorization documents).

Take the time to review your organization's I-9 policies and procedures regarding rehires and continuing employees. Having pre-determined procedures in place to make the distinction between the two will make the summer season less intimidating and the return to the regular season much smoother.

[1] The requirement to complete Form I-9 applies to new employees hired after November 6, 1986. It does not apply to employees hired on or before November 6, 1986 or to those who are continuing in their employment despite a break in service and have a reasonable expectation of employment at all times.