A Department of Justice (DOJ) memo has directed federal prosecutors to prioritize immigration-related cases, potentially exposing many employers to criminal charges. Under the new policy, the DOJ may pursue cases it previously would not have, including those involving the employment of undocumented immigrants. Additionally, employers of H-1B visa holders could now face prosecution in cases where revocation was once the standard practice.
DOJ Immigration Memorandum
In a memo to all DOJ employees, Attorney General Pam Bondi emphasized that the “nation faces historic threats from widespread illegal immigration.” Consequently, immigration enforcement has become the DOJ’s top prosecution priority.
“The Department of Justice shall use all available criminal statutes to combat the flood of illegal immigration that took place over the last four years and to continue to support the Department of Homeland Security’s immigration and removal initiatives,” stated the February 5 memo.
The memo further instructed: “Consistent with the core principle of pursuing the most serious, readily provable offense, U.S. Attorney’s Offices and other Department components shall pursue charges relating to criminal immigration-related violations when such violations are presented by federal, state, or local law enforcement or the Intelligence Community.”
The DOJ specified that prosecutions should include violations of 8 U.S.C. §§ 1304, 1306, 1324-1328, and 1373, as well as 18 U.S.C. § 922(g)(5).
- Section 1304 relates to requirements under the Alien Registration Act.
- Section 1306 imposes penalties for failing to register or notify immigration authorities of a change of address.
- Section 1324 penalizes individuals for “bringing in and harboring aliens.” This provision, which has not been extensively used against employers, allows for fines and up to five years of imprisonment for those who “knowingly or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place, including any building or any means of transportation.”
Other referenced sections include:
- Section 1325: Improper entry by an alien
- Section 1326: Reentry of removed aliens
- Section 1327: Aiding or assisting certain aliens to enter
- Section 1328: Importation of aliens for immoral purposes
The memo also issued a warning to DOJ attorneys: declining to prosecute immigration-related offenses could have serious consequences. “Any declinations of immigration-related offenses shall be disclosed as Urgent Reports pursuant to Justice Manual § 1-13.130. On a quarterly basis, each U.S. Attorney’s Office shall report statistics to EOUSA,” referring to the Executive Office for United States Attorneys.
The statistics will include data on immigration-related cases referred to DOJ offices, pending investigations and prosecutions, immigration-related convictions, and sentencing outcomes.
Tougher Road Ahead for Employers and Immigrant Employees
The DOJ memo is expected to significantly accelerate immigration-related prosecutions. “DOJ is instructing the field to accept essentially all immigration-related referrals for criminal prosecution,” said Chris Thomas, a partner with Holland & Hart.
He noted that the explicit reference to 8 U.S.C. § 1324 signals a clear intent to criminally charge companies and individuals who “know or recklessly disregard the fact that somebody is unlawfully present, for transporting, sheltering, or even employing such individuals.” He added that the DOJ may also target employers who “knowingly or recklessly allow outside staffing agencies and contractors” to engage in such conduct.
A recent case exemplifies the DOJ’s new approach. On February 14, Homeland Security Investigations charged the owners of a bakery in Los Fresnos, Texas, with “harboring” under 8 U.S.C. § 1324. The charges stemmed from the employment of eight undocumented workers at the bakery.
Thomas predicts that the new DOJ focus will result in less emphasis on labor exploitation, such as cases involving undocumented child labor. Instead, Immigration and Customs Enforcement (ICE) will conduct I-9 audits to gather evidence and pursue the harshest possible charges against employers.
“Companies need to receive training on conducting I-9 audits and developing response strategies when ICE agents arrive for a ‘knock and talk,’ serve a Notice of Inspection, or conduct a raid,” Thomas advised. He also stressed the importance of understanding the legal risks associated with various criminal charges.
He warned that DHS intends to refer cases for criminal charges “wherever they feel they can justify such charges.”
Small business owners targeted in an immigration raid or enforcement action may face significant legal jeopardy if they speak to federal agents without first consulting an attorney. Federal agents are expected to use high-profile enforcement actions as a deterrent to discourage the employment of undocumented workers.
Employers of H-1B Visa Holders at Risk
Employers of H-1B visa holders and other high-skilled professionals could also face heightened scrutiny. The final rule on H-1B visas issued by U.S. Citizenship and Immigration Services (USCIS) formalized the agency’s authority to conduct worksite visits. USCIS dismissed concerns that such visits—often conducted with little warning—were problematic, stating that employers must comply regardless of whether the visits occur at businesses or private residences.
FWD.us, an advocacy group, raised concerns in a public comment to the rule: “Officers will be able to deny or revoke approval for legitimate petitions if an employer, even a third-party employer where an H-1B beneficiary is working, refuses to speak with officers, does not answer to the officer’s satisfaction, or fails to answer a written request in a certain time frame.”
Immigration attorney Vic Goel of Goel & Anderson emphasized the importance of preparation. “Employers should prepare for USCIS site visits, even at third-party work locations and employees’ home offices, ensuring all documentation aligns with the petition and that internal immigration compliance teams are trained to address inquiries,” he said.
Chris Thomas believes that employers of high-skilled workers could now be exposed to serious legal risks. “It’s clear that any form of misrepresentation will be referred for further investigation,” he said. He also noted that the Fraud Detection and National Security Directorate (FDNS), which conducts worksite visits, is expected to take a more aggressive approach.
“The days of cases being referred for mere revocation will be in the past. In addition to referring cases for revocation, FDNS will most certainly refer such matters to Homeland Security Investigations and other entities for potential criminal investigations,” Thomas explained.
A Shift in Immigration Enforcement Strategy
The Attorney General’s memo making immigration prosecutions a top priority aligns with broader trends under the Trump administration. Thomas believes the DOJ’s approach will be comprehensive. “The focus will be to bring any and all charges available under immigration law,” he said.
Employers, particularly those hiring foreign workers, must adapt to this intensified enforcement landscape. With increased I-9 audits, worksite inspections, and a broader scope of potential criminal charges, legal experts advise companies to take proactive steps in compliance and legal defense strategies.