A new Department of Justice (DOJ) memo directs federal prosecutors to prioritize immigration-related cases, potentially exposing many employers to criminal charges. The policy shift could lead to prosecutions for employing undocumented immigrants and for violations involving H-1B visa holders, where revocations were previously standard practice.
DOJ Immigration Memorandum
Attorney General Pam Bondi, in a memo issued to all DOJ employees, emphasized that the U.S. faces “historic threats from widespread illegal immigration.” As a result, she declared that “immigration enforcement” is now 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 continue to support the Department of Homeland Security’s immigration and removal initiatives,” the Feb. 5 memo states.
It instructs U.S. Attorney’s Offices and other DOJ components to pursue criminal immigration-related charges when violations are identified by federal, state, or local law enforcement or the Intelligence Community. Specific statutes cited include:
- 8 U.S.C. § 1304 & 1306 – Alien registration requirements and penalties for failure to notify authorities of address changes.
- 8 U.S.C. § 1324 – Prohibitions on “bringing in and harboring” undocumented immigrants, which may now be enforced against employers.
- 8 U.S.C. §§ 1325-1328 – Laws covering illegal entry, reentry of removed individuals, aiding unlawful entry, and human trafficking for “immoral purposes.”
The memo also mandates that DOJ attorneys report all declined immigration-related prosecutions as “Urgent Reports.” Additionally, each U.S. Attorney’s Office must provide quarterly data on immigration cases, pending investigations, convictions, and subsequent removals.
Increased Risks for Employers
The DOJ memo is expected to significantly increase immigration-related prosecutions. According to Chris Thomas, a partner at Holland & Hart, the DOJ is now instructing field offices to accept nearly all immigration-related referrals for prosecution.
“With 8 U.S.C. 1324 specifically cited, it’s clear that they plan to pursue criminal charges against companies and individuals who ‘know or recklessly disregard’ an employee’s unlawful status,” Thomas said. He noted that the law could also be applied to employers who knowingly work with staffing agencies or contractors that employ undocumented workers.
A recent case illustrates this shift: on Feb. 14, Homeland Security Investigations charged the owners of a Texas bakery with “harboring” eight undocumented workers under 8 U.S.C. 1324.
Thomas predicts that authorities will focus less on labor violations—such as employing undocumented minors—and more on using I-9 audits to build criminal cases against employers. “Companies must train staff on conducting I-9 audits, responding to ICE inspections, and handling potential raids,” he advised. He also urged businesses to consult legal counsel when addressing past compliance issues.
Impact on H-1B Employers
Employers of H-1B visa holders could also face heightened scrutiny. Under a recent H-1B rule, U.S. Citizenship and Immigration Services (USCIS) has codified its authority to conduct site visits, including at third-party work locations and even employees’ home offices.
USCIS rejected arguments that such visits violate employer rights. Immigration advocacy group FWD.us noted that officers can deny or revoke petitions if an employer, including a third-party entity, refuses to cooperate or does not respond to written inquiries within a set timeframe.
“Employers should prepare for USCIS site visits, ensuring documentation aligns with petitions and that internal immigration teams are trained to address inquiries,” said Vic Goel of Goel & Anderson.
Thomas warned that even minor misrepresentations will likely be flagged for criminal investigation. “FDNS [Fraud Detection and National Security Directorate] will no longer just refer cases for revocation—they will escalate cases to Homeland Security Investigations and other agencies for criminal prosecution.”
The DOJ’s intensified focus on immigration cases aligns with broader Trump administration policies. Thomas expects an aggressive approach: “The focus will be to bring any and all charges available under immigration law.”