How Employers Can Navigate the Legal Ramifications of the DOJ’s New Directives for Immigration Enforcement

At a Glance

On February 5, 2025, Attorney General Pamela Bondi issued a series of internal memoranda directing the Department of Justice (DOJ) to implement policy priorities of the Trump Administration. Several of these directives touched on immigration enforcement, including restrictions on DOJ funding for states or cities that do not cooperate with federal immigration enforcement activities. The memos also include an update to DOJ charging and sentencing policies, including setting immigration enforcement as a departmental priority.

This high enforcement environment impacts all employers. For example, the DOJ has been instructed to prioritize enforcement of a federal statute that imposes criminal penalties for hiring, or continuing to employ, individuals without lawful US work authorization. In this enforcement climate, employer preparedness is key.

DOJ’s Charging Priorities Memo

The Attorney General’s memo, titled General Policy Regarding Charging, Plea Negotiations, and Sentencing, sets forth general guidelines under which DOJ employees are to charge and prosecute federal crimes. It also establishes investigative and charging priorities for the Justice Department, including immigration enforcement, human trafficking and smuggling, cartels and organized crime, and protecting law enforcement personnel.

With respect to immigration enforcement, the memo directs DOJ personnel to “use all available criminal statutes” to enforce the nation’s immigration laws and to “support the Department of Homeland Security’s immigration and removal initiatives.” This includes pursuing the most serious, readily provable criminal violations related to immigration when referred by law enforcement or intelligence officials. According to the memo, this includes violations of the following statutes:

• 8 U.S.C. § 1304: Requires non-US citizens entering the United States to be registered and fingerprinted upon entry, and for all such non-US citizens over age 18 to carry documentation of their lawful presence in the United States at all times.
• 8 U.S.C. § 1306: Establishes criminal penalties for failure of non-US citizens entering the United States to be registered and fingerprinted upon entry, and establishes criminal and immigration penalties (including detention and removal) for failure to timely register a change of address.
• 8 U.S.C. §§ 1324 – 1328: Among other measures, imposes criminal penalties for harboring or transporting individuals without lawful US immigration status; for inducing such individuals to enter the United States; for hiring or continuing to employ individuals without lawful US work authorization; for discriminating in recruitment, hiring, and employment based upon national origin or citizenship status; and for falsifying any immigration documents, petitions, or applications.
• 8 U.S.C. § 1373: Prohibits federal, state, and local officials from interfering with the exchange of citizenship or immigration information between government officials and US immigration agencies.
• 18 U.S.C. § 922(g)(5): Prohibits individuals in the United States without authorization, as well as nonimmigrant visa holders, from receiving, possessing, or transporting firearms or ammunition affecting interstate or foreign commerce.

Employer Preparedness in the Current High Enforcement Environment

The charging memo calls for a greater emphasis on immigration enforcement as a Justice Department priority. Now is the time for employers to review their risk profiles based on their industry, hiring practice, and employee population and to take affirmative steps to ensure compliance with all applicable immigration requirements.

Five key questions to assess an employer’s risk profile include:

1. Is your business prepared?

• As immigration-related worksite enforcement and investigations intensify, employers must adopt proactive strategies to prepare for audits, unannounced site visits, raids, and other compliance challenges. In advance of any worksite actions by the government, employers should take all reasonable care to verify employees’ identities and ensure that they are authorized to work in the United States in accordance with the Form I-9 (Employment Eligibility Verification) procedures, as specified in the Handbook for Employers M-274).
• This includes proper training of all individuals involved in recruiting, screening, hiring, onboarding, and re-verifying employees to ensure compliance with work authorization requirements.
• Employers must also be careful to avoid discrimination based on citizenship or national origin; for example, by requesting more or different documentation than is required for completion of the Form I-9 process.

2. Are your employees prepared?

• Employees should ensure they maintain proper documentation of their valid identity and work authorization status at all times. Employees should review, download, and print their electronic I-94 entry record as soon as possible after each US entry, and immediately seek corrections through Customs and Border Protection (CBP) Deferred Inspection if required.
• Employees must be scrupulous in reporting any change in their US residential address to US Citizenship & Immigration Services (USCIS) within 10 days of moving by filing Form AR-11, which can be completed online.

3. Has your business conducted an independent, external audit of its workforce employment authorization verification within the past year?

• In addition to regular internal audits conducted by employers of their verification records, the present environment demands external review by independent professionals with experience in identifying weaknesses in overall compliance practices, as well as potential liabilities related to violations of employment verification regulations.

4. Does your business have a plan in case of a government site visit or raid?

• Because federal authorities may make unannounced site visits, employers should prepare a set of standard operating procedures (SOPs) for receiving government officials if and when they arrive. The SOP should include guidance for the Designated Response Team (e.g., receptionist, human resources and IT staff, in-house counsel, and leadership), with instructions for verifying the identity of the federal officers, designated space for audit activities, location of files to be pulled, and specific lists of the documents the company is prepared to share.
• In addition, employees should be advised in advance of the business’s protocols. The SOP should anticipate government visits at sites outside of the corporate headquarters or major worksites and plan accordingly.
• The goal is to ensure all decision-makers are apprised and ready according to established communication channels—and not to create a panic that could impede the employer’s plan for resolution of an investigation or audit.

5. Do you work with external counsel that has experience not only in immigration compliance, but also in immigration-related investigations, litigation, and media crisis management?

• Expanding worksite enforcement by the Department of Homeland Security and the US Attorneys’ Offices carries the potential to disrupt continuity and hamper the ability of employers to continue to operate.
• Moreover, continuing to conduct business in the midst of an investigation brings particular challenges. Consequently, businesses are well-advised to engage counsel possessing a deep knowledge of immigration compliance, investigatory matters, and reputational risk. Businesses must be prepared to respond quickly to allegations of immigration violations and aggressive investigations by DHS, federal prosecutors, the Department of Justice, and related agencies.
• Experience working with enforcement agencies and federal prosecutors is critical to an employer’s ability to withstand federal scrutiny of its employment practices.

How Mayer Brown Can Help

Mayer Brown brings extensive experience in guiding employers through compliance challenges in today’s high-stakes enforcement environment. We manage the interconnected areas of legal and regulatory risk by combining subject matter mastery in immigration law and worksite enforcement, HR/employment expertise and media crisis management, along with in-depth familiarity with the industry. Under Mayer Brown’s multidisciplinary approach, we apply strategic, cross-practice guidance to advise your organization across any stage of government

enforcement action and along the full spectrum of immigration compliance. As the government’s policy priorities evolve, employers need experienced legal counsel to help them navigate the changing landscape of immigration enforcement. Mayer Brown is ready to help them do so.