In light of recent federal executive orders, GLI is working to bring our investors the latest information and guidance to navigate changing regulations. Following President Trump’s recent orders regarding immigration, we turned to our investor and long-time partner, Dentons, to share guidance on a business’ rights, responsibilities, and liabilities in complying with this new policy.

In today’s evolving legal landscape, it is crucial for business owners to understand the authority of Immigration and Customs Enforcement (ICE) agents to enter and inspect commercial premises. This article provides an overview of the key points and best practices to ensure your business is prepared and protected.

Judicial Warrants vs. Administrative Warrants

One of the most important distinctions to understand is the difference between judicial and administrative warrants. ICE officials generally must have a judicial warrant, signed by a judge, to enter and inspect private areas of a business. A judicial warrant will have a district court heading and is generally necessary for accessing areas not open to the public. In contrast, an administrative warrant, issued directly by ICE, does not grant the same authority to conduct broad searches and is often used to conduct immigration related I-9 audits to ensure compliance with identity confirmation regulations. Administrative warrants are also utilized to conduct arrests of individuals believed to be in violation of immigration law.

Privacy Expectations in Commercial Settings

The Supreme Court has extended protections against warrantless searches to commercial areas, recognizing that individuals have a reasonable expectation of privacy in certain parts of their businesses. For example, certain areas of commercial businesses, such as offices or kitchens, are more private in nature and generally require a judicial warrant for entry. In contrast, a business’s public areas, such as a restaurant dining room, afford less protection and may not require a warrant for entry and inspection.

Employee Training and Preparedness

To safeguard the rights of your business, it is essential to train your staff on how to respond if ICE agents arrive. Here are some key steps to follow:

1. Delineate Public and Private Areas: Clearly mark and, if possible, lock private areas to reinforce their status.
2. Establish a Point of Contact: Designate a specific person responsible for interacting with ICE agents. Ensure all employees know who this person is and how to contact them.
3. Instruct Employees on Their Rights: Employees should be informed that they do not have the authority to grant permission for searches. Employees should direct ICE agents to the designated point of contact and refrain from answering questions about other employees.
4. Document the Event: If ICE agents appear, the point of contact should document the event thoroughly, including the agents’ names, number, attire and actions. Preserve any video recordings as evidence.

Best Practices for Business Owners with Respect to Searches

In addition to training employees, business owners should adopt the following best practices with respect to searches:

Refuse Unauthorized Searches: The designated point of contact should be prepared to refuse permission for searches without a judicial warrant and indicate that they will not answer questions without legal counsel present.

Do Not Interfere or Volunteer Information: If you believe ICE agents exceed their authority, do not physically or verbally interfere. Instead, document the incident and seek redress through the courts. Furthermore, employees should know that there is no need to provide information regarding immigration status and other information concerning specific individuals identified by ICE.

What Can You Do Right Now to Protect Your Business: I-9 Internal Audits

Given that administrative warrants are often used to conduct immigration related I-9 audits and arrest individuals believed to be in violation of immigration law, now is a good time for employers to conduct internal audits of I-9 Forms, and implement or revisit internal policies and procedures to ensure compliance with their obligations to maintain and retain I-9 Forms for current and former employees.

The Immigration Reform and Control Act, enacted on November 6, 1986, requires employers to verify the identity and employment eligibility of their employees and sets forth criminal and civil sanctions for employment-related violations.[1] The law requires employers to maintain original I-9 Forms for current employees, and retain such forms for at least three years from the first date of employment or one year from the date employment ends, whichever is longer.[2]

Employers should confirm that their I-9 Forms are complete, readily available for inspection, and that they are tracking expiring authorization dates. Given that the failure to comply with I-9 Form requirements can result in significant fines, employers should consider conducting the audit process with the assistance of legal counsel.

Likewise, employers should consider the implementation of policies and procedures aimed at ensuring I-9 compliance. As a part of this process, employers should also consider training for their I-9 administrators to ensure that they are knowledgeable of the process involved in completing, storing, and retaining I-9 Forms.

By understanding the legal requirements and preparing your business accordingly, you can protect your rights and ensure compliance with the law. Stay informed and proactive to navigate these complex situations effectively. If you have any questions or wish to seek legal assistance in connection with this article, please contact the authors, Chelsea Granville Reed at [email protected], K. Michael Gaerte at [email protected], or any Dentons Bingham Greenebaum LLP attorney.

[1] https://www.ice.gov/factsheets/i9-inspection#:~:text=For%20current%20employees%2C%20employers%20are,of%20the%20Form%20I%2D9.

[2] https://www.ice.gov/factsheets/i9-inspection#:~:text=For%20current%20employees%2C%20employers%20are,of%20the%20Form%20I%2D9.