Quick Takeaways
- Expansion and escalation of immigration-related enforcement activities to maximize DOJ’s use of criminal statutes to punish or deter employment of undocumented foreign nationals
- Serious implications for companies employing foreign nationals with or without work authorization
- Decision to not pursue immigration-related criminal charge requires same report as a kidnapping or hijacking
- Quarterly scorekeeping to ensure DOJ offices meet prosecution and removal goal
On February 5, 2025, Attorney General Pamela Bondi’s office issued a memorandum regarding immigration enforcement with potentially significant consequences for foreign nationals and their U.S. employers. Presently in effect, this update from the U.S. Department of Justice (“DOJ”) provides additional evidence of the Trump Administration’s plans to enhance immigration enforcement and, by extension, the need for individuals and entities to be prepared for the same.
DOJ’s Top Priority: Immigration Enforcement
The memorandum, titled “General Policy Regarding Charging, Plea Negotiations, And Sentencing,” begins, predictably, by describing the general bounds of the DOJ’s prosecutorial discretion vis-à-vis charging decisions, plea bargains, and sentencing. However, the bulk of the memorandum synthesizes those general principles to notify all employees of the DOJ’s updated investigative and charging priorities, with immigration enforcement as the most-discussed topic – more than human trafficking/smuggling, transnational organized crime/cartels/gangs, and protecting law enforcement personnel, underscoring the elevated importance this administration continues to place on immigration.
Maximal Use and Pursuit of Immigration-Related Criminal Charges
The memorandum’s immigration enforcement directives themselves, of course, are the best reminder of Trump 2.0’s intentions in this regard, in that they instruct U.S. Attorney’s Offices and other DOJ organs to “pursue charges relating to criminal immigration-related violations” whenever they are “readily provable.” The “criminal immigration-related violations” include traditional offenses such as improperly entering the United States (8 U.S.C. § 1325), reentering the United States without permission after being previously removed (8 U.S.C. § 1326), aiding and abetting the unlawful entry of a foreign national (8 U.S.C. § 1327), and the importation of foreign nationals to engage in sex work and other immoral purposes (8 U.S.C. § 1328), but also stretch to further activities such as:
- Failure to carry proof of status a misdemeanor, which is punishable by a $100.00 fine and/or up-to-30-days imprisonment (8 U.S.C. § 1304)
- Failure to notify USCIS of a change of address within 10 days of moving, which is not only punishable by a $200.00 fine and/or up-to-30-days in jail, but it is also a grounds for removal – even if the individual is neither convicted nor penalized under the statute – unless the individual can provide a justifiable reason for the failure to notify USCIS (8 U.S.C. § 1306)
Expanding Applications of Immigration-Related Criminal Charges
In addition, recent reports from across the country indicate that the DOJ is using 8 U.S.C. § 1324, which customarily targets human traffickers who bring-in, harbor, and transport undocumented foreign nationals, to punish companies that employ individuals without work authorization. Likewise, it is not a far stretch to extend these prohibitions – as well as the failure to notify USCIS of a recent move within 10 days of its occurrence – to trigger not only a revocation of an approved submission, but also criminal charges, if a nonimmigrant’s terms and conditions of employment do not match the contents of their benefit request. In addition, the DOJ’s deployment of federal statutes that punish resisting, obstructing, or otherwise failing to comply with immigration-related inquiries, and even those that invoke criminal conspiracy or claims of fraud in these situations, create potential criminal liability for employers that directly employ foreign nationals or those that do so through third-party contractors, if they do not cooperate with federal officials as quickly or comprehensively as demanded.
Pressure to Bring Immigration-Related Criminal Charges
Lastly, the memorandum mandates DOJ employees to notify their superiors if they decline to bring immigration-related criminal charges by submitting an Urgent Report that is consistent with Justice Manual 1-13.130, which defines this class of Urgent Reports as “regarding a major development involving…circumstances” such as but not limited to kidnappings, hijackings, officer-involved-shootings, investigations into elected officials, and other incidents that are so serious as to require the Attorney General or her Deputy’s personal attention within 24 hours.
To monitor these Urgent Reports and other office and law enforcement-agency specifics, the memorandum directs all U.S. Attorney’s Offices to provide quarterly reviews of their immigration-related activities, from referrals and investigations to prosecutions, sentences, and removals from the United States. Accordingly, DOJ leadership will be able to identify the offices that are accomplishing their intensified criminal enforcement measures as well as those that are falling short of these policy goals.
Conclusion – Do Not Wait to Plan Until It Is Too Late
In addition to Trump 2.0’s noisier shows of force over the last month, this memorandum clearly demonstrates the administration’s attitude towards the immigrant community. Further, the memorandum outlines the legal grounding and policy objectives for how it will target foreign nationals and companies in the United States: draconian enforcement and aggressive criminal prosecution of all immigration-related statutes and agency scorekeeping to confirm the DOJ continues to staff attorneys, investigators, and other law enforcement personnel willing to enact these measures. In the face of this reality, the need to proactively prepare for visits from the DOJ or other federal agencies is more important than ever. If you have any questions about how best to plan for or respond to these situations and others, please do not hesitate to contact our office.
