When agents from U.S. Immigration and Customs Enforcement (ICE) or Customs and Border Protection (CBP) arrive at a business (often unannounced), staff must make quick decisions under pressure, frequently without legal counsel immediately available. How businesses respond in those first moments can have significant legal, operational, and human consequences.
Preparation is the single most important factor in avoiding mistakes and managing these situations lawfully and responsibly. Businesses that have a written response protocol in place, that understand what ICE may and may not do, and that train staff accordingly, are far better positioned to protect their business, their clients and employees, and their legal interests.
This article outlines practical steps businesses can take to minimize legal and operational risks and protect their business, clients, and employees.
Consent Without a Judicial Warrant
As a matter of federal constitutional law, businesses are generally not required to allow ICE or CBP access to non-public areas unless agents present a valid judicial warrant. A judicial warrant is one that clearly indicates it is issued by a state or federal court, is signed by a judge or magistrate identified as such – not by an immigration officer or immigration judge – and that authorizes entry into specified business premises. In contrast, an administrative warrant or “ICE Warrant,” discussed below, may not be correctly identified as an administrative warrant at all. The key is that it will not have been issued or signed by a state or federal court judge or magistrate.
This principle applies not only to ICE and CBP, but also to any law enforcement officers acting in coordination with immigration authorities. Public areas of a business, such as lobbies or retail spaces open to the public, may be accessed without a warrant. Private areas such as offices, back rooms, kitchens, warehouses, or employee-only spaces require a warrant signed by a judge. Businesses should train reception staff, security personnel, and managers to calmly and respectfully state that the business does not consent to entry into non-public areas without a valid judicial warrant.
Evaluating the Warrant at the Door
If ICE agents claim they have a warrant, businesses should not immediately allow entry. Instead, staff should ask for a copy of the warrant and request that agents wait in a designated area while a supervisor reviews it. To be valid for entry to private property or a private area, a warrant must be signed by a judge or magistrate, correctly identify the business by legal name and address, be current, and clearly describe the scope of the search, including what areas may be searched and what items or persons may be seized. In the absence of a judicial warrant, the business may lawfully refuse entry into such property and should document the interaction. If the warrant authorizes a search of a specific area or for specific items, access should be limited accordingly.
Administrative warrants signed by immigration officers are common in ICE operations, but they do not authorize entry into private areas of a business. In some circumstances, ICE does not need a warrant to conduct its business at all. For example:
- No warrant is needed to enable ICE, in a public space, “to interrogate any . . . person [based on a reasonable belief] . . . as to his right to be or to remain in the United States.”
- On the other hand, a specific administrative warrant called a “Warrant for Alien Arrest” is needed to make an ICE arrest.
Involve Supervisors and Legal Counsel Immediately
Any ICE presence at a business should trigger immediate notification to designated supervisors and legal counsel. Front-line employees should be trained to call a supervisor or legal counsel. A simple, consistent response is appropriate: “I am not authorized to answer questions. Let me get someone who does.”
If ICE begins a search without authorization, businesses should not impede but note and document their objection to the search. The names, badge numbers, and contact information of the agents present should also be documented. This can be done by requesting business cards or writing down identifying information.
During a Search
If agents present a valid judicial search warrant, businesses must allow access within the scope of the warrant. It is important to designate at least one business representative to accompany each agent during the search. The representative may take notes, record the search unless you know or are told that doing so is contrary to applicable law or policy of the business, and document what is seized.
Representatives should not block or interfere with agents, but they may object—politely and on the recording if one is being made—if a search exceeds the scope of the warrant. Objections should be noted without arguing or escalating the situation.
Interacting with Employees
Businesses may suggest to their employees that they may ask agents whether they are free to leave. If an employee is not free to leave, it would be prudent to ask to consult with an attorney immediately.
Businesses may share with their employees their understanding — but not actual legal advice — that employees do not have to answer questions about their immigration status, country of origin, or how they entered the United States. However, employers should not direct employees to refuse to speak with agents, should not help anyone hide or evade enforcement, and should not provide false or misleading information.
Businesses may not assist their employees in leaving the premises without permission during an active enforcement action. Employers are not required to assist officers in grouping employees by status.
What Businesses Should Do If an Employee Is Detained
If an employee is detained or taken into custody during an immigration enforcement action, the employer’s role does not end when the agents leave. While employers must not interfere with enforcement activities, they still have important legal and practical responsibilities to the affected employee and to the workplace as a whole.
- Employers should document the detention. This includes recording the employee’s name, the date and time of detention, the agency involved, and, if available, the name and contact information of the supervising agent. Employers should also note whether the employee was removed from the workplace or detained on-site. This documentation is important for payroll, benefits administration, and any subsequent legal or compliance inquiries.
- Businesses should ensure that the employee is paid all wages owed for work performed up to the time of detention. Immigration enforcement does not relieve an employer of wage-and-hour obligations. Final pay should be issued in accordance with applicable state law, including any requirements related to timing, method of payment, or accrued benefits. Businesses should consult counsel if there is uncertainty about final paycheck obligations in their jurisdiction.
- Businesses should designate someone to serve as a point of contact for the employee’s family or emergency contacts, consistent with company policy and privacy laws. This should be someone in HR or management who has received some training on these issues. While businesses should not disclose sensitive information or speculate about immigration status of an employee, basic communication regarding the employee’s absence, final pay, or retrieval of personal belongings may be appropriate.
- Businesses should address benefits and job-status issues carefully. Detention does not automatically constitute a voluntary resignation or “job abandonment.” Businesses should avoid making immediate employment-status decisions and should consult counsel before taking adverse employment action. Depending on the circumstances of the detention, there may be a need to evaluate leave options, benefit continuation, or compliance with applicable other employment laws.
- Businesses should be mindful of the impact on remaining employees. Enforcement actions can be deeply unsettling, even for those not directly affected. Communicating calmly and factually, avoiding rumors or speculation, and reinforcing that the business is following the law while respecting employee rights is important.
ICE Requests for Records and Documents
ICE may request access to personnel files or client information stored in hard copy or electronic form. Businesses should not release or permit review of records unless disclosure is required by law, a valid judicial warrant, or a subpoena that specifically compels production. For all documents and records, businesses should insist on retaining the original or a copy, and should request an inventory of all items seized as agents are required to provide one.
If agents claim to have a warrant or subpoena, businesses should request a copy and consult with counsel. Even when documents must be produced, disclosure should be strictly limited to what is legally required.
Attorney-client privileged materials require special attention. If agents seek to inspect documents that are privileged—such as communications with legal counsel—the business should clearly identify them as privileged and request that they not be reviewed until counsel is consulted. If agents insist on seizing privileged documents, the business cannot prevent that but should make a copy if possible or create a record in detail of exactly what was taken. Employers should also request an inventory of all items seized as Agents are required to provide one.
The Bottom Line for Businesses
The most important step for businesses to take is to be prepared before ICE arrives. That includes knowing if there are state or municipal laws in addition to the federal regime, which may further impact decision-making with respect to ICE or CBP requests. Businesses should have written response protocols in place, and trained staff, designated decision-makers, and legal counsel ready to respond.
If you have questions about the potential impact of immigration enforcement on your business operations or your organization’s employment policies, please contact Gizie Hirsh, Mark Mathison, or another of our employment attorneys.