White Collar & Government Investigations Blog

The new administration has recently shown an increased effort to beef up enforcement of existing laws. This recent increase in immigration enforcement activity provides a good opportunity to revisit the principles of the Fourth Amendment. Every person that is physically located in the United States or any of its territories, no matter citizenship status, has due process rights under the Fourteenth Amendment. The recent actions by federal agents at the workplace in the last few days have raised questions about the scope of authority of federal agents to search, seize and arrest at work, at a school or place of worship. While at the border, agents have considerably more latitude with respect to due process and the freedom to detain and conduct warrantless searches. But within the country, basic and fundamental Fourth Amendment principles apply, even in the immigration context.

Generally speaking, absent exigent circumstances, law enforcement agents need a valid judicial warrant, signed by a state or federal judge, to enter private areas of the workplace without consent. Without consent or a valid judicial warrant, agents cannot forcibly enter the non public areas of the workplace. Often, without a warrant, agents will ask for consent to search and/or speak with certain individuals in the workplace. There is no legal requirement to consent to such a search or presence.

Law enforcement agents, however, have a right to be present in public areas of the workplace – the lobby, the waiting area, the entrance, etc. Fleeing the scene is a bad idea. If agents in the public space view a person fleeing the scene when the agents arrive, this can provide them with probable cause, or give rise to exigent circumstances that may justify the pursuit of the individual and to make an arrest.

Often agents will have an administrative subpoena- an I-200 or I-205 form, or seek the employer’s I-9 compliance. Neither gives permission to search and/or apprehend individuals in the private spaces of the workplace, without a warrant or consent. An I-9 audit is when ICE comes to your business to check if you followed the rules for Form I-9, which confirms a worker’s identity and authorization to work in the United States. It is a violation of current immigration laws to hire an undocumented illegal alien. Employers are required to keep the forms on file for all new employees, for three years after hiring, or one year after the worker’s last day of work, whichever is later. An I-9 does not permit authorities to enter the private spaces of the workplace and search for illegal aliens.

It is strongly advisable to have a written policy for staff that is visible and educate and train staff on how to interact with federal agents seeking to apprehend workers at the workplace, school or place of worship. It is always best to call legal counsel at the first opportunity.