Employer Rights and Considerations During ICE Visits in the Workplace
When Immigration and Customs Enforcement (ICE) agents enter or attempt to enter a business or public building, confusion and uncertainty can escalate quickly. Yet private employers, nonprofit organizations, and public entities have well-defined constitutional and statutory rights that govern when and how ICE agents may access their premises, request documents, or question employees.
Understanding the distinction between public and nonpublic areas, the legal requirements for administrative versus judicial warrants, and the limit on voluntary cooperation is essential for both private and public employers to protect their employees and customers.
This article outlines the key legal principles employers should be aware of before an enforcement encounter occurs.
Entry
ICE agents may legally enter public areas of a private or public employer such as a lobby, reception area, or waiting room, without permission. When entering an employer’s premises, ICE agents may not immediately identify themselves, but employers have the right to request identification, and ICE agents are required to identify themselves when carrying out an arrest.
When inside an employer’s building, ICE agents may question or detain individuals and request access to areas generally restricted to employer personnel. Employers should not instruct employees to refuse to cooperate with ICE agents. However, they may advise employees and other individuals on the premises that they have the right to remain silent and to request legal counsel if approached by ICE agents. Employers should also consider designating a point of contact to speak with ICE agents in the event that they enter the premises to ensure a calm and orderly response.
Private Areas
Employers are not required to grant ICE agents access to nonpublic areas of the workspace or building without a valid judicial warrant. A valid judicial warrant is signed by a judicial officer, dated, and has been issued within the past 14 days.
ICE agents may attempt to gain access to an employer’s nonpublic spaces with an administrative warrant. These warrants are typically identified as originating from the Department of Homeland Security and do not legally grant ICE agents entrance into nonpublic areas without the employer’s permission.
Search for Records
ICE agents may request an employer to produce records for its employees to verify their citizenship status. Private and Public employers are not required to grant access to any records without a subpoena issued by a court, otherwise known as a judicial subpoena.
ICE agents may attempt to search an employer’s records through an administrative subpoena, but these do not grant legal authorization to search an employer’s records without permission. Like an administrative warrant, administrative subpoenas are typically identified as originating from the Department of Homeland Security, not a court.
Interactions with ICE Agents
If ICE agents enter your organization’s workspace or premises, you may ask them to identify themselves and request the reason for their presence.
ICE agents may enter an employer’s public areas without permission, but this does not give them the authority to stop, question or arrest anyone in these areas. Probable cause must exist or they should have the individual’s consent to stop.
If ICE agents are in a public space or have a legal warrant to enter an employer’s nonpublic areas, do not interfere with their law enforcement activities. However, individuals have the right to document these activities, including recording.
Conclusion
To promote calm and orderly interaction with ICE agents, employers should maintain I-9 documentation in a separate, readily accessible location, clearly designate nonpublic areas with appropriate signage, and implement written procedures outlining how staff should respond if agents arrive at the workplace. If you have questions about developing or implementing such policies, or about your organization’s rights and obligations when ICE agents are present, please contact an attorney in our Employment Practice Group.
