I-9 Employment Verification for Restaurants: Compliance Without Discrimination

Immigration and Customs Enforcement can audit your I-9 records with just three business days’ notice. When they arrive, they will examine every Form I-9 for every employee you are required to cover — and they will compare what the forms say against your actual payroll records to identify gaps. The restaurant industry is among the sectors most frequently targeted for these audits.

I-9 compliance is mandatory, but the rules contain a trap that many operators miss: the same process designed to verify work authorization also has built-in anti-discrimination protections that prohibit you from treating employees differently based on how they look, what accent they have, or where the inspector suspects they are from. Getting compliance right means navigating both the verification requirements and the discrimination prohibitions simultaneously.

Here is how to do it correctly.

Who Is Covered

Form I-9 must be completed for every employee hired after November 6, 1986. That means essentially every hire your restaurant has ever made is covered. The requirement applies regardless of citizenship status — U.S. citizens are just as required to complete I-9 documentation as non-citizens.

The coverage does not extend to independent contractors, though the worker classification question and the I-9 question are connected in an important way: if you are treating a worker as a 1099 contractor partly to avoid I-9 compliance, and that worker is later determined to be an employee, you have both a misclassification violation and an I-9 violation.

The Two-Section Process

Form I-9 has two sections with different completion timelines, and the timing rules are strictly enforced.

Section 1 is completed by the employee. It must be completed on or before the employee’s first day of work. Section 1 captures the employee’s name, address, date of birth, Social Security number (where applicable), and their attestation of work authorization status. The employee indicates whether they are a U.S. citizen, a noncitizen national, a lawful permanent resident (with Alien Registration Number), or a noncitizen authorized to work with a specific expiration date.

The employer’s role in Section 1 is to ensure it is completed by the deadline — not to complete it for the employee, and not to correct it on the employee’s behalf unless the employee is unable to complete it and requests assistance.

Section 2 is completed by the employer. It must be completed within three business days of the employee’s start date. This is where operators most commonly fall behind during busy hiring periods. In Section 2, you physically examine original documents presented by the employee, record the document type, issuing authority, document number, and expiration date, then sign the form attesting that the documents appear genuine.

The three-day requirement is a hard deadline. Starting someone’s first shift on Monday means Section 2 must be complete by Thursday. Completing it on Friday is a violation, regardless of whether the documents ultimately establish work authorization.

The Document Rules: What You Can and Cannot Require

This is where operators most frequently create discrimination exposure in addition to compliance violations.

Employees present documents from one of three lists:

• List A documents establish both identity and work authorization. A U.S. passport is the most common example. An employee who presents a valid U.S. passport has fully satisfied the I-9 requirement with one document.
• List B documents establish identity only — a state driver’s license, for example.
• List C documents establish work authorization only — a Social Security card is the standard example.

To satisfy the I-9 requirement, an employee must present either one List A document, or one List B document plus one List C document.

You cannot specify which documents an employee must present. If an employee wants to present a U.S. passport and you insist on seeing a green card because that is “what you require,” that is a discrimination violation — not a compliance measure. You can inform employees of the lists of acceptable documents. You cannot tell them which specific document from those lists they must use.

You cannot reject documents that appear valid. If an employee presents a foreign passport with a valid visa, that is a List A document. Rejecting it because you are unfamiliar with foreign travel documents is a violation. Harris Sliwoski LLP, which specializes in immigration compliance for the hospitality industry, notes that inspectors cannot reject valid documents because they “look foreign or unfamiliar.” When you encounter documents you do not recognize, examine them for the required information — name, photo where applicable, document number, expiration date — rather than defaulting to rejection.

You cannot require more documents than the minimum required. Requiring both a List A document and a List B/C combination, or requiring multiple List B documents, is a violation.

Anti-Discrimination Is Integral to the Process

The Department of Justice’s Immigrant and Employee Rights Section (IER) enforces anti-discrimination protections that run alongside the I-9 requirement. These prohibitions cover:

Citizenship status discrimination. You cannot treat U.S. citizens differently from non-citizens, or favor certain citizenship statuses over others, in your hiring decisions or verification practices.

National origin discrimination. Treating employees differently based on their perceived national origin — their accent, appearance, name, or the country of origin apparent from their documents — is prohibited. Scrutinizing documents more carefully for employees who appear to be foreign-born, or asking for additional documents from employees who present foreign-issued IDs, creates discrimination exposure.

Document abuse. This is the specific term for the violation of requiring more or different documents than required, or refusing to accept documents that reasonably appear genuine.

Retaliation. Retaliating against an employee who files an anti-discrimination complaint related to the I-9 process is separately prohibited.

According to Harris Sliwoski LLP, the practical implication for restaurants with diverse workforces — which describes most restaurants — is that the I-9 process must be applied identically to every employee regardless of how they look, what language they speak natively, or what country their documents are from. The safest operational practice is a standardized script for communicating the document requirements to every new hire, presented in the same way every time.

E-Verify: The Electronic Supplement

E-Verify is a federal database system that allows employers to electronically check whether the information on an employee’s I-9 documents matches federal records. It is operated jointly by the Department of Homeland Security and the Social Security Administration.

E-Verify is not federally mandatory for all employers, but several states require it for all employers, and it is mandatory for federal contractors and subcontractors. Specific states with mandatory E-Verify requirements include Arizona, Alabama, Georgia, North Carolina, South Carolina, Tennessee, and Utah, among others. Some states require E-Verify only for public employers or employers above a certain size. Check your state’s specific requirements.

Critically, as noted in Harris Sliwoski LLP’s compliance guidance, E-Verify does not replace the I-9 — it supplements it. You must complete Form I-9 even if you use E-Verify. If E-Verify generates a “tentative nonconfirmation” — meaning the database check could not confirm the employee’s work authorization — there is a specific process you must follow, including giving the employee an opportunity to contest the finding. You cannot simply terminate the employee because E-Verify generated a nonconfirmation.

The Most Common Errors in Restaurant I-9 Compliance

According to the compliance guidance from Harris Sliwoski LLP, the I-9 errors most commonly found in restaurant audits include:

Late Section 2 completion. During busy hiring periods, managers start employees on shifts and complete the paperwork later. The three-day deadline is missed repeatedly. This is the single most common systematic error in restaurant I-9 programs.

Accepting expired documents. Drivers’ licenses, passports, and other documents have expiration dates. An expired document is not an acceptable I-9 document. Check expiration dates at the time of physical examination.

Failing to reverify. Employees with temporary work authorization have specific expiration dates in Section 1. When that authorization expires, you must reverify — ask the employee to present documentation of continued work authorization and update the I-9 accordingly. Many restaurants do not track these expiration dates and fail to reverify.

Not retaining forms for the required period. I-9 forms must be retained for three years from the date of hire or one year after termination, whichever is later. Forms for a long-term employee terminated after five years must be kept for one year after termination — six years from hire. Destroying I-9 forms when an employee leaves is a compliance violation.

Allowing employees to start before completing Section 1. The employee’s Section 1 must be done by day one. A manager who tells a new hire to “fill out the paperwork when things slow down” and starts them on the floor first is creating a violation.

Building a Compliant I-9 System

Operational I-9 compliance requires a systematic approach embedded in your hiring process.

Create a standardized onboarding checklist that makes I-9 completion a prerequisite to starting the first shift. The checklist should include the document list, the completion timeline, and the physical examination requirement. Make the checklist part of manager training.

Designate and train who is responsible for completing Section 2. Every manager involved in hiring needs to know the document lists, the physical examination requirement, and the prohibition on specifying which documents employees must present. This training should be documented.

Maintain a separate I-9 file for each employee, stored separately from the general personnel file. Organizing I-9 records separately makes responding to an ICE audit significantly easier and reduces the risk of accidental records destruction.

Track reverification dates. If any employees have temporary work authorization with expiration dates in Section 1, build a calendar reminder system to initiate reverification before the expiration date.

Conduct periodic internal audits. Pull I-9 records quarterly and review them against your active and recently terminated employee list. Identify missing forms, incomplete sections, and upcoming reverification deadlines before an enforcement audit does. Correcting errors found in a self-audit before enforcement contact demonstrates good faith and typically results in reduced penalties.

ICE audits give you three business days to produce your records. That is not enough time to reconstruct a disorganized system. Building the system before an audit is the only approach that works.

→ Read more: Restaurant Employment and Labor Law: What Every Operator Must Know

→ Read more: The Restaurant Hiring Process: A Step-by-Step Recruitment Guide That Actually Works

→ Read more: Creating a Restaurant Employee Handbook: What to Include and Why It Matters