DOJ Memo Bad News For Employers Of H-1B Visa Holders And Other Immigrants

A Department of Justice memo directs federal prosecutors to prioritize immigration-related cases, which could affect many employers. Companies could face criminal charges in cases that the DOJ may not have pursued in the past, including for employing undocumented immigrants. The new policy also could mean employers of H-1B visa holders will face prosecution in cases in which a revocation was the previous practice.

DOJ Immigration Memorandum

In a memo issued to all Justice Department employees, Attorney General Pam Bondi said that the “nation faces historic threats from widespread illegal immigration.” As a result, “immigration enforcement” now tops the DOJ’s list of prosecution priorities.

“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,” according to the Feb. 5 memo, which also said:

“Consistent with the core principle of pursuing the most serious, readily provable offense, U.S. Attorney’s Offices and the 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. . . . This includes, where supported by evidence, and consistent with applicable law, prosecutions for violations of 8 U.S.C. §§ 1304, 1306, 1324-1328, 1373 and 18 U.S.C. § 922(g)(5).”

Section 1304 relates to requirements under the Alien Registration Act. Section 1306 levies penalties for failing to register or notify immigration authorities of a change of address.

Section 1324 includes penalties for “bringing in and harboring aliens,” a provision authorities have not used extensively against employers. The law states that criminal penalties, including fines and imprisonment up to five years, can be levied against individuals “knowing 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.”

The other immigration sections referenced in the memo include 1325 (improper entry by alien), 1326 (reentry of removed aliens), 1327 (aiding or assisting certain aliens to enter) and 1328 (importation of alien for immoral purpose).

Failing to pursue immigration-related cases could have consequences for DOJ attorneys: “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,” which refers to the Executive Office for United States Attorneys.

The statistics will be “broken down by law enforcement agency, regarding the number of immigration-related cases referred to the Office, the number of pending immigration-related investigations and prosecutions, the number of immigration-related convictions, and the resulting sentences and removals.”

The DOJ Memo Means A Tougher Road For Employers And Immigrant Employees

The DOJ memo will push immigration prosecutions into overdrive. “DOJ is instructing the field to accept essentially all immigration-related referrals for criminal prosecution,” said Chris Thomas, a partner with Holland & Hart. “With 8 USC 1324 conspicuously cited, it’s clear that they plan to pursue criminal charges against companies (and individuals), who know or recklessly disregard the fact that somebody is unlawfully present, for transporting, sheltering, or even employing such individuals. The statute will also be used against employers who knowingly or recklessly allow outside staffing agencies and contractors who engage in such conduct.”

As an example of the new policy, on Feb. 14 Homeland Security Investigations charged the owners of a bakery in Los Fresnos, Texas, with “harboring” (8 USC 1324). The action involved eight undocumented workers at the bakery.

Thomas expects less attention on labor exploitation, such as employing undocumented child labor. Immigration and Customs Enforcement will use I-9 audits to gather documentation to build cases against employers and lodge the most severe charges available wherever possible.

“Companies need to receive training on conducting I-9 audits, developing response strategies when ICE agents show up for a knock and talk, to serve of Notice of Inspection, or to conduct a raid,” said Thomas. “And they need training on the options DHS has to bring criminal charges. Where potential criminal misconduct is present, they need to work with experienced legal counsel to support them with internal investigations and to develop strategies to address any prior misconduct.”

He said the memorandum demonstrates that DHS plans to refer cases for criminal charges “wherever they feel they can justify such charges.”

Small business owners targeted in a raid or other immigration enforcement action risk legal jeopardy if they speak to federal agents without consulting an attorney. Federal agents hope to discourage employing undocumented immigrants by bringing criminal charges and gaining publicity when raiding small employers.

Employers Of H-1B Visa Holders And Other High-Skilled Professionals Could Be Immigration Targets

In its H-1B final rule, U.S. Citizenship and Immigration Services codified its right to engage in site visits. USCIS rejected the argument that the agency lacked the authority to conduct such visits. The agency disagreed that entering businesses and even private residences with little warning was problematic. In a comment to the rule, FWD.us wrote, “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.”

Vic Goel of Goel & Anderson said, “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.”

Chris Thomas thinks employers of highly skilled visa holders could now face legal peril. “It’s clear that any form of misrepresentation will be referred for further investigation,” he said. “And with FDNS [Fraud Detection and National Security Directorate] conducting onsite visits, they will certainly take a more expansive approach to such visits. 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.”

The Attorney General’s memo making immigration prosecutions a top priority fits a pattern throughout the Trump administration. According to Chris Thomas, “The focus will be to bring any and all charges available under immigration law.”