Form I-9 for employees returning from leave: continuing employment, documents that expire during leave, and when it becomes a rehire
On this page
- Does an employee returning from leave need a new Form I-9?
- Which kinds of leave count as continuing employment?
- How do you show the employee reasonably expected to return?
- What do you do on the return date?
- What if work authorization expires while the employee is on leave?
- When does a return become a rehire?
- What does E-Verify need when an employee returns from leave?
- Common mistakes with returning employees
- Questions people ask
No. An employee coming back from approved leave is not a new hire for Form I-9 purposes, so you do not complete a new form or create a new E-Verify case. Under 8 CFR 274a.2(b)(1)(viii), approved paid or unpaid leave for study, a family member's illness or disability, the employee's own illness or pregnancy, maternity or paternity leave, vacation, union business or other temporary leave you approved is continuing employment, as long as the employee had a reasonable expectation of employment at all times. On the return date, USCIS's Handbook for Employers says to inspect the existing form, update or reverify it if necessary, and store it as if there had been no interruption. That is the rule as of November 2026.
The work is in the two exceptions: a document that expired while the employee was away, and a "leave" that was really a separation. This page covers both. Seasonal gaps are covered in Form I-9 for seasonal and returning workers, and former employees who come back in Form I-9 for rehires.
Not legal advice. This summarizes 8 CFR 274a.2(b)(1)(vii), (b)(1)(viii) and (c), the Handbook for Employers (M-274), Section 6.1, Section 8.0 and Section 10.0, and USCIS's I-9 Central pages on continuing employment and Supplement B, as of November 2026. Leave laws have their own reinstatement rules; this page covers only Form I-9 and E-Verify.
Does an employee returning from leave need a new Form I-9?
| Situation on return | What to do with Form I-9 | Source |
|---|---|---|
| Back from approved leave, documents and authorization still valid | Inspect the existing form and file it as before | 8 CFR 274a.2(b)(1)(viii)(A)(1); M-274 Section 8.0 |
| Back from approved leave, but a List A or List C document or the authorization date in Section 1 expired while away | Reverify on Supplement B; this was due by the expiration date, not the return date | 8 CFR 274a.2(b)(1)(vii); M-274 Section 6.1 |
| Back with a legal name change | Not required, but USCIS recommends noting the new name in Supplement B | I-9 Central, Supplement B |
| Back with a name, date of birth or Social Security number substantially different, and no evidence linking them to the old identity | Complete a new Form I-9 with the original hire date as the first day of employment, and attach it to the old form | I-9 Central, Supplement B |
| Reinstated after a disciplinary suspension, or a wrongful termination found unjustified or resolved by reinstatement or settlement | Continuing employment; inspect the existing form | 8 CFR 274a.2(b)(1)(viii)(A)(5) |
| Resigned or was terminated during the absence, then comes back | A rehire: Supplement B within three years of the original form, or a new form | 8 CFR 274a.2(c)(1); I-9 Central, continuing employment |
| The original form cannot be found | Complete the current Form I-9 as soon as possible; do not backdate it | I-9 Central questions and answers |
Which kinds of leave count as continuing employment?
The regulation, repeated on USCIS's continuing employment page, lists approved paid or unpaid leave on account of:
- study;
- illness or disability of a family member;
- the employee's own illness or pregnancy;
- maternity or paternity leave;
- vacation;
- union business; and
- other temporary leave approved by the employer.
The same list also covers a temporary layoff for lack of work, a strike or labor dispute, and reinstatement after a disciplinary suspension. Whatever the legal source of the leave, whether a federal or state leave law, a collective bargaining agreement or your own policy, the Form I-9 question is the same: was it leave you approved, and did the employee reasonably expect to come back? The two words that do the work are "approved" and "temporary."
How do you show the employee reasonably expected to return?
The employer claiming continuing employment has to establish it. 8 CFR 274a.2(b)(1)(viii)(B) lists factors that "include, but are not limited to" these, decided case by case. For leave, they turn into ordinary HR records:
| Factor in the regulation | What it looks like for leave |
|---|---|
| Employed on a regular and substantial basis | A normal schedule before the leave, compared with similar workers |
| Complied with your established and published absence policy | The leave was requested and approved under a written policy |
| Your history of recalling absent employees | Employees on leave usually come back to their jobs |
| Position not permanently taken by another worker | The job was covered temporarily, not filled |
| No benefits inconsistent with returning; the regulation names severance and retirement benefits | No severance paid and no retirement elected during the absence |
| Your financial condition allows the return | The role still exists and is funded |
| Communications indicate a likely return | An approval letter or message with an expected return date |
Keep the leave approval and the expected return date with the employee's HR file. If an inspector asks why a returning employee has no new Form I-9, that record is the answer.
What do you do on the return date?
- Confirm the status. Check that the leave was approved and was not converted into a separation while the employee was away.
- Pull the existing Form I-9, with any Supplement B pages, document copies and the E-Verify case number.
- Check both expiration dates. USCIS's Supplement B page says to compare the authorization expiration date in Section 1 with the document expiration date in Section 2 and reverify by the earlier one.
- Reverify only what requires it. Do not reverify U.S. citizens and noncitizen nationals, permanent residents who presented a Permanent Resident Card, or any List B identity document.
- Record a name change if there is one. The new name goes in the New Name fields of a Supplement B block; see Form I-9 name changes.
- Ask for nothing else. A continuing employee does not present documents again, and you do not create an E-Verify case.
- File the form as if there were no interruption. M-274 Section 10.0 says to calculate the remaining retention period only when the employee stops working for you, so the clock has not started.
What if work authorization expires while the employee is on leave?
Reverification is due no later than the date work authorization expires, under 8 CFR 274a.2(b)(1)(vii), and the regulation does not pause that date for leave. M-274 Section 6.1 adds that you cannot continue employing a person who does not provide proof of current employment authorization. So the date to plan around is the expiration date, not the return date.
- Warn early. USCIS suggests giving employees at least 90 days' advance warning that they must present a List A or List C document, or an acceptable receipt.
- Watch the E-Verify reminder. If you use E-Verify, the Work Authorization Documents Expiring alert appears 90 days before an Employment Authorization Document or Form I-94 used in a case expires. The User Manual, Section 4.2.3, says it is only a reminder to complete Supplement B; do not create a new case.
- Arrange the examination. The employee can come in, or you can designate an authorized representative near them (see I-9 authorized representatives). E-Verify employers who qualify may use the DHS alternative procedure; see I-9 remote verification.
- Check for an automatic extension first. When an EAD was presented with a Form I-797C notice that automatically extends it, reverification falls at the end of the extended period, not the date on the card; see I-9 and EAD automatic extensions.
- Let the employee choose the document. Any unexpired List A or List C document will do, and receipts for a lost, stolen or damaged document are acceptable for reverification. See I-9 reverification for the full steps.
- Get advice before acting on a lapse during protected leave. The leave law that applies may have its own reinstatement rules, and a lapse in work authorization is a Form I-9 problem you should resolve with counsel rather than by default.
When does a return become a rehire?
When the employee was not continuing in employment, or had no reasonable expectation of employment at all times. Common signs are a resignation or termination during the absence, severance or retirement benefits taken, a position permanently filled, or leave that was never approved. USCIS's continuing employment page says a hire then takes place on the return: within three years of the initial date the Form I-9 was completed you may follow the rehire procedures, and after three years you must complete a new form. The Supplement B steps, and how to count the three years, are in Form I-9 for rehires.
One related point from the same USCIS page: when you pay final backpay to terminated employees who had a reasonable expectation of continuing employment but have been told their employment will not resume, you do not need to update their Forms I-9 or complete new ones.
What does E-Verify need when an employee returns from leave?
- Nothing new for a continuing employee. The E-Verify User Manual, Section 1.5, ties cases to newly hired employees, and E-Verify's FAQ says it does not allow employers, other than federal contractors with the FAR E-Verify clause, to verify existing employees.
- Rehires follow the rehire rules. A rehire within three years whose earlier case ended in Employment Authorized may not need a new case; see E-Verify for rehired employees.
- The Status Change Report still applies. An employee on leave is still a current employee, so if E-Verify's report shows that the EAD used in their case was invalidated, reverify on Supplement B without creating a case; see the E-Verify Status Change Report.
- Federal contractors. An existing employee assigned to a covered contract after returning is handled under FAR 52.222-54's assignment rules; see E-Verify for existing employees.
Common mistakes with returning employees
| Mistake | What the rules say |
|---|---|
| Completing a new Form I-9 and E-Verify case for every return from leave | Not required for continuing employment, and E-Verify does not allow verifying existing employees outside the federal contractor rule |
| Waiting for the return date to reverify an EAD that expired during leave | Reverify no later than the expiration date |
| Asking only employees who are not U.S. citizens for documents when they return | Requests for more or different documents can be document abuse; see I-9 document abuse |
| Starting the retention clock on the first day of leave | Calculate retention only when employment ends |
| Treating a long absence that ended with severance as continuing | Severance is a benefit the regulation calls inconsistent with returning |
| Reverifying a Permanent Resident Card or a driver's license | Neither is reverified |
An employee who returns to a different location or division raises its own questions; see Form I-9 for transferred employees.
Questions people ask
Does an employee need a new Form I-9 after maternity or medical leave?
No. 8 CFR 274a.2(b)(1)(viii) treats approved paid or unpaid leave, including maternity or paternity leave and the employee's own illness, as continuing employment when the employee had a reasonable expectation of employment at all times. You inspect the existing Form I-9, reverify only if a document or authorization has expired, and file it as if there had been no interruption.
What if an employee's work permit expires while they are on leave?
Reverification is still due no later than the expiration date. The regulation does not pause that date for leave, and USCIS's Handbook for Employers says you cannot continue employing a person who does not provide proof of current employment authorization. USCIS suggests warning employees at least 90 days ahead, so contact the employee before the date and arrange how they will show a List A or List C document.
Do I run E-Verify again when an employee comes back from leave?
No. A returning employee who was on approved leave is not a new hire, and E-Verify does not allow employers, other than federal contractors with the FAR E-Verify clause, to verify existing employees. If the employee's document needs reverification, you complete Supplement B of Form I-9 and do not create a new E-Verify case.
When does a long leave of absence become a rehire for Form I-9?
When the employee was no longer continuing in employment, for example because they resigned, were terminated, took severance or retirement benefits, or had their position permanently filled. USCIS then treats the return as a hire. Within three years of the date the original Form I-9 was completed you may use Supplement B or a new form; after three years, a new Form I-9 is required.
Does the Form I-9 retention clock start when an employee goes on leave?
No. USCIS's Handbook for Employers says to calculate how much longer to keep a Form I-9 only when the employee stops working for you. An employee on approved leave who is continuing in employment has not stopped, so the form stays in your active files.