Returning workforce: Ensuring employment eligibility compliance after coronavirus (COVID-19) reductions



April 10, 2020

Immigration Alert

Author(s): Rachel S. Winkler, John Sandweg

We discuss what employers need to know to ensure full compliance with employment eligibility verification rules when they bring their workers back after COVID-19 furloughs or layoffs.

Employers need to be prepared to ensure full compliance with employment eligibility verification rules when they bring their workers back after COVID-19 furloughs or layoffs. All U.S. employers must properly complete and maintain Form I-9, Employment Eligibility Verification, for each individual they hire in the United States to verify identity and employment authorization. The U.S. Department of Homeland Security (DHS) has already relaxed some I-9 and E-Verify requirements temporarily due to COVID-19.

While no specific guidance has been issued, DHS will likely consider these returning employees to be continuing in employment when they are rehired, and a new Form I-9 will not be required. Employers should continue to maintain the completed Form I-9 as if there was no interruption in employment, and no new E-Verify case should be opened. However, employees whose employment authorization documents expired during the furlough or temporary layoff will need to provide new documentation to update their I-9 forms upon returning to work. There may be additional complications for foreign national employees.

When the employee cannot be considered to have continued in his or her employment, and therefore, the employer cannot rely on the previously completed Form I-9, the employer has the option to complete just Section 3 of the form if the rehire occurs within three years from the date the previous Form I-9 was completed. Alternatively, or if the rehire occurs more than three years from the date the previous Form I-9 was completed, the employer should complete a new Form I-9. Employers should always use the most current version of the form, which now reflects a version date of “10/21/2019.”

  • If the employee remains employment-authorized as indicated on the previous Form I-9, the employee does not need to provide any additional documentation. Complete Section 3 of the existing form, or if not the current version, Section 3 on a new form.
  • If the previous Form I-9 indicates that the employee’s employment authorization has expired, you must re-verify employment authorization in Section 3 in addition to providing the rehire date. If the previously executed Form I-9 is not the current version of the form, you must complete Section 3 on the current version of the form.
  • If you already used Section 3 of the employee’s previously completed Form I-9, complete another Section 3, being sure to use the current version of the Form I-9, and attach it to the previously completed form.

If you are currently enrolled in E-Verify, you may need to create a new E-Verify case upon rehiring an employee, particularly if you never created an E-Verify case for him or her before, and his or her previous Form I-9 lists an expired identity document.

The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.

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