For those who do not practice in the criminal realm, a few changes have come out recently that might impact employers and private companies related to immigration generally, as well as hiring, internal audits and internal investigations, specifically.
On February 5, 2025, the Office of the Attorney General (OAG) issued marching orders to the investigators and prosecutors working in the new administration’s Department of Justice (DOJ) universe. Generally, the OAG applies a very logical two-step process in enforcement actions: (1) whether federal charges should be brought; and (2) what are the appropriate charges. Under the guidance related to step two in enforcement actions is the admonition that the prosecutor must pursue the most serious and provable offense. Prosecutors will pursue, therefore, charges with the most serious mandatory minimum sentences, and the highest recommendations under the United States Sentencing Guidelines (USSG).
It is significant to note that prosecutors are not permitted to abandon or drop charges in plea bargaining situations without “significant mitigating or intervening circumstances.” What are “significant mitigating and intervening circumstances?” These are complicated and differ case by case. Suffice to say that decisions to amend any aspect of a charge are committee based, and not easily achieved.
Why is this relevant to employers in general? Because the first item listed under “Investigative and Charging Priorities” for the OAG is “Immigration Enforcement.” Immigration enforcement is top of mind for many employers. As an example, many companies use temporary agencies to supplement their workforce. It is possible for temporary agencies to properly vet and process applicants but not realize someone’s identification is false, only to have an individual without authorization to work in the United States show up for an assignment.
Further highlighting the change in Immigration enforcement includes the recent disbanding of the Foreign Influence Task Force and the very limited enforcement, or interest in, the Foreign Agents Registration Act (FARA) and 18 U.S.C. §951. All resources of the Counterintelligence and Export Control Section, including the FARA unit, will henceforth focus on civil enforcement (i.e., immigration) and the like. Continuing the trend, resources are also shifting away from the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF). The ATF’s resources are moving away from Alcohol and Tobacco-related enforcement, and toward other listed items, such as Immigration enforcement. It is also likely employers may be reported to any of these agencies by competitors, ex-employees or anyone who may see an advantage gained by doing so.
With all of these changes in enforcement efforts and resources, employers cannot turn a blind eye because ignorance is never bliss. If employers ignore these new enforcement efforts (1) they might face an enforcement action; or (2) they may lose a chunk of their work force en masse due to an immigration raid. Either of which could be very disruptive to any enterprise.
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