The I-9 form is the Employment Eligibility Verification form required by U.S. law for every employee hired to work in the United States. It verifies that the person you're hiring is legally authorized to work in the country. For restaurants, retail stores, and service businesses hiring shift workers, the I-9 is mandatory, non-negotiable, and frequently audited.
Why the I-9 Exists
The Immigration Reform and Control Act of 1986 makes it illegal to knowingly hire or continue to employ unauthorized workers. The I-9 form, administered by U.S. Citizenship and Immigration Services, is how you prove you verified work authorization.
The stakes: Immigration and Customs Enforcement (ICE) conducts I-9 audits. Violations result in fines ranging from hundreds to thousands of dollars per form. A business with 20 employees and improper I-9s could face five-figure penalties.
When You Must Complete an I-9
Every new hire. No exceptions. It doesn't matter if:
- They're a U.S. citizen
- They've worked for you before
- They're your cousin
- They only work part-time
- They're temporary or seasonal
If someone is on your payroll, they need an I-9.
The Three-Day Rule
Section 1 (Employee Section): Must be completed on or before the employee's first day of work for pay.
Section 2 (Employer Section): Must be completed within three business days of the employee's first day of work for pay.
Your new server starts Monday. She must complete Section 1 by Monday. You must complete Section 2 by Thursday.
Exception: If employment will last fewer than three business days, Section 2 must be completed before the first day of work.
According to USCIS, the three-day rule protects employees from discrimination based on citizenship or immigration status while still requiring timely verification.
The I-9 Form Sections
Section 1: Employee Information and Attestation
The employee completes this section, providing:
- Full legal name
- Other names used (if any)
- Address
- Date of birth
- Social Security number
- Email and phone number
- Attestation of citizenship or work authorization status
- Signature and date
Your role in Section 1: Provide the form, explain what it is, and answer questions. You cannot tell employees which documents to present or which status to check. You can only explain that they must complete it accurately and truthfully.
Section 2: Employer Review and Verification
You complete this section after physically examining the employee's documents. You must:
Examine original documents: Employees present documents from the acceptable documents list proving identity and work authorization.
Determine if documents reasonably appear genuine: Look for obvious signs of tampering or falsification. You're not an expert authenticator, but you should notice if a document looks suspicious.
Record information: Write document titles, issuing authorities, document numbers, and expiration dates.
Sign and date: Certify that you examined the documents and they appear genuine and relate to the employee.
Critical rule: You must physically examine original documents. No copies. No photos. No documents sent via email. Face-to-face verification is required (with limited remote options during emergencies).
Section 3: Reverification and Rehires
This section is used when:
- Work authorization expires and needs reverification
- Employee is rehired within three years of the original I-9 date
- Employee's legal name changes
Most employers won't use Section 3 often, but it exists to update information without creating a new I-9.
Acceptable Documents: Lists A, B, and C
Employees prove identity and work authorization using documents from the USCIS lists.
List A: Identity AND Work Authorization
One document from List A proves both. Most common:
- U.S. passport or passport card
- Permanent Resident Card (Green Card)
- Employment Authorization Document (EAD)
If an employee presents a List A document, you're done. No other documents needed.
List B: Identity Only
Common List B documents:
- Driver's license or ID card issued by a state
- School ID with photograph
- U.S. military card
List C: Work Authorization Only
Common List C documents:
- Social Security card (unrestricted)
- U.S. birth certificate
- U.S. citizen ID card
List B + List C = Complete verification. Your new line cook presents a driver's license (List B) and Social Security card (List C). That's sufficient.
What You Cannot Do
Demand specific documents: "I need to see a passport" is illegal. Employees choose which acceptable documents to present.
Reject valid documents: If a document is on the acceptable list and appears genuine, you must accept it.
Request more documents than necessary: One List A document or one List B plus one List C. Don't demand additional documentation.
Discrimination based on citizenship or immigration status violates the Immigration and Nationality Act. The Department of Justice enforces these protections.
Where to Store I-9 Forms
Critical rule: Store I-9 forms separately from personnel files.
Why separate? ICE can audit I-9s at any time with three days' notice. If I-9s are mixed in personnel files, you're giving ICE access to confidential employee information during an audit. Separate storage protects employee privacy.
Storage options:
- Dedicated I-9 binder organized alphabetically or by hire date
- Separate file cabinet drawer for I-9s only
- Digital storage system (if using acceptable electronic signature technology)
What to attach: If you make photocopies of documents presented (not required but recommended), attach copies to the I-9. This proves which documents you examined if questions arise later.
Retention Requirements
Current employees: Maintain I-9s for the duration of employment.
Former employees: Maintain for three years after date of hire OR one year after date of termination, whichever is later.
Example: Employee hired January 1, 2020 and terminated March 1, 2023. Keep I-9 until January 1, 2024 (three years after hire date).
After retention period expires, destroy I-9s securely. They contain Social Security numbers and dates of birth, so shred them.
Common I-9 Mistakes and Penalties
Mistake: Missing I-9s
Penalty: $272 to $2,701 per form for first-time violators. Repeat violators face higher fines.
No I-9 means you didn't verify work authorization. This is serious.
Mistake: Incomplete I-9s
Missing information, unsigned forms, undated forms, or sections left blank.
Penalty: Same as missing I-9s. An incomplete I-9 is essentially a missing I-9.
Your restaurant's I-9s are missing document numbers in Section 2. During an audit, ICE treats these as violations.
Mistake: Late Completion
Section 1 completed late or Section 2 completed after the three-day deadline.
Penalty: Technical violations result in lower fines but still create liability.
Mistake: Accepting Unacceptable Documents
Employee presents expired documents, copies instead of originals, or documents not on the acceptable list.
Penalty: Your I-9 doesn't prove work authorization, triggering penalties.
Mistake: Discriminatory Document Requests
Demanding specific documents, rejecting valid documents, or requesting extra documentation from certain employees.
Penalty: Discrimination penalties through Department of Justice, separate from I-9 violations.
USCIS provides a helpful guide on avoiding common mistakes.
E-Verify: The Electronic Verification System
E-Verify is an online system that compares I-9 information against government databases to confirm work authorization. It's voluntary for most employers but mandatory for federal contractors and some states.
If you use E-Verify:
- Complete the I-9 first
- Submit E-Verify query within three business days of employee's start date
- Follow specific procedures if tentative non-confirmations arise
E-Verify doesn't replace the I-9. It supplements it.
Remote Verification During COVID-19
During COVID-19, USCIS allowed temporary remote I-9 verification. The Department of Homeland Security has extended and modified these flexibilities at various times.
Current status: Check USCIS website for latest guidance on remote verification allowances. Requirements change, and using outdated procedures creates compliance problems.
ICE Audits: What to Expect
ICE provides three days' notice before an I-9 audit (called a Notice of Inspection). They'll request:
- All I-9 forms
- Supporting documentation
- Business records
During audit:
- Cooperate fully
- Provide requested documents promptly
- Don't alter or create I-9s once notice is received (that's obstruction)
- Consider consulting immigration attorney
After audit:
- Fix violations identified
- Pay fines if assessed
- Implement better I-9 practices going forward
Technology Solutions
Manual I-9 management creates problems. Paper forms get lost. Mistakes happen. Retention tracking fails.
Digital I-9 systems:
- Guide employees and employers through each section
- Flag missing information before submission
- Calculate retention deadlines automatically
- Store forms securely and separately
- Generate reports for audit readiness
The key is ensuring your system meets federal electronic signature and storage requirements.
The Bottom Line
The I-9 is mandatory for every hire. Complete Section 1 on or before the first day, complete Section 2 within three business days, store separately from personnel files, and retain for required periods.
Mistakes aren't minor paperwork issues. They're violations of federal law resulting in significant fines. Set up proper procedures during onboarding, train whoever completes I-9s on proper procedures, and audit your I-9s annually to catch and fix errors before ICE does.
The I-9 takes five minutes per employee. Getting it wrong costs thousands.
