Beginning on his first day in office on January 20, 2025, President Trump has significantly expanded U.S. immigration enforcement authority. Within a matter of days, he had deployed ICE agents across the country, and rescinded policies that had previously protected certain “sensitive areas” from immigration enforcement actions, including hospitals, schools, universities, religious communities, and courthouses. Given these rapid developments, employers must be prepared for ICE visits and related enforcement actions. This LEGALcurrents provides guidance and recommendations on what employers need to know if immigration authorities visit your workplace.
Employer Action Items:
- Review and update policies for interacting with law enforcement, including immigration officers.
- Designate company personnel who will serve as the immediate contact if immigration enforcement comes to the workplace and provide detailed training on what to do in those instances.
- Using signage and other security measures, clearly designate public and private areas of the workplace.
- Conduct self-audits of required work authorization records including forms I-9 and immigration-related files such as SEVP records for universities and H-1B/E-3 Public Access Files for sponsored employees.
- If ICE arrives at a company location, contact a qualified immigration lawyer right away.
Key Takeaways:
- ICE (Immigration and Customs Enforcement) and CBP (Customs and Border Protection) have broad authority to investigate the workplace with or without warrants.
- Within 100 miles of any international border, CBP has authority to approach individuals in public spaces, including in transit, to inquire after immigration status. CBP officers have the authority to detain anyone in order to determine their immigration status.
- Note: The 100-mile border zone includes most of New York. For a visual representation of the 100-Mile border zone across the country, see the ACLU’s map here: https://www.aclu.org/know-your-rights/border-zone
- Immigration officers are free to enter any public areas of your workplace, but they must have a valid, judicial search warrant or the consent of an authorized representative to enter non-public areas.
- Other agencies can also investigate employers with or without notice. Such investigations may include I-9 audits, Department of Labor Wage and Hour Division (DOL/WHD) audits (including review of H-1B compliance documents), and site visits ensuring compliance with visa programs, including Homeland Security Investigations (HSI) and Fraud Detection and National Security (FDNS).
- There are two different kinds of warrants that immigration officials can present. It is crucial that your designated representatives know the difference and comply according to policy. They are administrative warrants and judicial warrants. The differences are discussed in detail below.
- Employees have the right to remain silent, and to ask for an attorney at any time.
Judicial vs. Administrative Warrants
Judicial Warrants:
Judicial warrants require compliance by the company if the below details are present and accurate. This means if a valid judicial warrant is presented, you must allow ICE access to the specified non-public area.
Judicial warrants provide officers the authority to search a specific area to seize documents or other items, or to arrest named individuals.
A valid judicial warrant must:
- Be signed and dated by a judge,
- Include a time frame for the search to be conducted,
- Include a description of the premises to be searched, and
- Include a list of items to be searched and seized, such as payroll records, employee ID documents, I-9 forms, or SSA correspondence.
- If the judicial warrant is issued for the arrest of someone, it must include a list of individuals to be arrested identified by name.
Administrative Warrants (ICE warrants):
Administrative warrants do not require compliance by the employer. If presented with an administrative warrant, employers can decline permission to ICE. Administrative warrants are signed by an ICE official rather than a judge. This also true for documents titled Deportation Order or Administrative Subpoena.
It is critical to know the difference between these two types of documents to ensure compliance with privacy laws, company policies, and civil and criminal law.
Public vs. Non-Public Area at the Workplace:
Public Areas:
Public areas of a workplace or business are areas where the general public ordinarily has access. Examples include a lobby, entry area, waiting room, parking lot, or seating area of a restaurant of a café.
ICE and CBP have the authority to enter public areas, look at anything in plain view, and ask questions regarding immigration status without warrants. Within the 100-mile border zone, CBP officials do not require even a suspicion that someone has violated immigration laws to ask questions in a public area. CBP also has the authority to detain anyone to determine their immigration status within the 100-mile border zone.
Non-Public Areas:
Non-public areas of a business or workplace are areas that are ordinarily for employees or staff only, or where someone needs specific permission to enter. Examples include the kitchen of a restaurant, exam rooms of a hospital, and offices in an office building, or areas where there is building security requiring a key, pass, or sign in.
ICE and CBP generally need a judicial warrant or the permission of an authorized representative to enter non-public areas. Employers should develop a policy where access to non-public areas is given only by the trained, designated representatives of the company who can review any documents provided and confirm compliance with the law and company policy.
Employer Rights and Responsibilities:
- If a warrant is presented, examine it to determine whether it is a valid judicial warrant signed by a judge, and send a copy of the warrant to your attorney.
- If a valid search warrant is presented and the agents want access to locked facilities, unlock them.
- Object to a search outside the scope of the warrant. Do not engage in a debate or argument, simply present the objection and make note of it.
- Write down the name of the supervising ICE agent and the name of the U.S. attorney assigned to the case.
- Have at least one company representative follow each agent around the facility. Each person can take notes or videotape the officer. They should note any items seized and ask if copies can be made before they are taken by the ICE officer.
- Request reasonable accommodations as necessary. If agents insist on seizing something vital to the business operation, explain why it is vital and ask permission to photocopy before the original is seized. Reasonable requests are usually granted.
- Protect privileged materials. This includes anything designated as attorney-client privileged (such as letters or memoranda to or from counsel), education related information protected under FERPA and Personal Health Information protected under HIPPA and corresponding state statutes.
- Employers may inform employees of their right to remain silent but may not direct employees to refuse to speak with agents.
- Do not block or interfere with ICE activities or agents. However, you do not have to give access to non-public areas if they did not present a valid judicial warrant.
- Company representatives should not give any statements to ICE agents before consulting with an attorney.
- Do not hide employees or assist them in leaving the premises. Do not provide false or misleading information, falsely deny the presence of named employees, or shred documents.
- Remember the health and welfare of employees. Enforcement actions can last for hours. If an employee requires medication or medical attention, or need to pick up family members from school, communicate these concerns to the ICE officers.
Employee Rights:
- All people in the United States, regardless of immigration status, have the right to remain silent under the 5th Amendment, and the right against unreasonable searches and seizures under the 4th Amendment. They also have the right to contact a lawyer.
- To assert these rights, the individual must state clearly that they are asserting each respective right. This can be counter-intuitive, but to assert the right to remain silent, an individual must clearly and loudly state “I am asserting my right to remain silent.”
- ICE may ask employees to stand in groups according to citizenship or immigration status. Employees are not required to do so.
- Employees are also not required to show identity documents that disclose their citizenship or nationality.
Further Information:
Please contact any member of our Immigration Practice Group if you have any questions regarding immigration enforcement actions, how to prepare for them, and assistance with developing policy and self-auditing required records.
Visit HSE’s Trump Administration Immigration Updates resource page for additional insights and resources.