U.S. Citizenship and Immigration Services seal is displayed on a mobile phone screen for illustration photo. Employers and immigrants may come to fear the expanded law enforcement authorities claimed by U.S. Citizenship and Immigration Services. (Photo by Beata Zawrzel/NurPhoto via Getty Images)
NurPhoto via Getty Images
Employers and immigrants may soon fear the expanded law enforcement authorities claimed by U.S. Citizenship and Immigration Services. The new rule and the announcement that USCIS officers can carry firearms are the most recent steps to transform the agency into a different entity, away from one founded to adjudicate benefit applications and provide services to the public. In a statement to the Senate Judiciary Committee at his confirmation hearing, new USCIS Director Joseph Edlow said, “USCIS must be an immigration enforcement agency.”
Rule Grants Immigration Service New Law Enforcement Authorities
On September 5, 2025, the Department of Homeland Security amended its regulations to “codify certain law enforcement authorities delegated” by the DHS secretary to the USCIS director and “subsequently redelegated to particular officers or employees of USCIS.” According to the rule, “These authorities allow particular USCIS personnel to investigate and enforce civil and criminal violations of the immigration laws within the jurisdiction of USCIS. These authorities include, but are not limited to, the issuance and execution of warrants, the arrest of individuals, and carrying of firearms.”
Immigration attorneys are alarmed at USCIS giving itself these new authorities under the DHS rule. “The recent changes at USCIS make the immigration process more intimidating,” said Dan Berger of Green & Spiegel in an interview. “Employers offer green card sponsorship as a recruitment and retention tool for key talent. That sponsorship increasingly involves an in-person interview, with the possibility of interacting with armed USCIS agents. This comes after months of images of masked ICE agents on television.”
Chris Thomas of Holland & Hart said USCIS officers will now have the authority to execute warrants, make arrests and investigate civil and criminal violations of immigration law. He said in an interview that by operating more like Homeland Security Investigations and Immigration and Customs Enforcement it opens “a new universe of potential exposure for employers and their lawyers.”
A Department of Justice memo issued to all employees on February 5, 2025, directed federal prosecutors to prioritize and accept all immigration-related referrals or explain in “Urgent Reports” to headquarters why the cases were not pursued. Companies could face criminal charges in cases that the DOJ may not have pursued in the past.
“Will the goal be to bring wild cases against companies and employers to chill benefits-related immigration, or will only the obvious and egregious cases be pursued? Only time will tell,” said Thomas.
Thomas expects an increase in employee arrests, an expansion of onsite visits by USCIS Fraud Detection & National Security officers, including at the home office of employees working remotely, and an expansion of criminal liability and reputational exposure for employers. He recommends that employers review their policies, inform staff and prepare for site visits. He said one area USCIS could focus on is work performed at customer sites by individuals in H-1B status. In Donald Trump’s first term, USCIS officials issued memos and took unsuccessful regulatory action against such work.
The DOJ memo and the new USCIS enforcement powers could mean, for example, employers of H-1B visa holders will face prosecution in cases in which a revocation was the previous practice.
ICE and USCIS are different agencies with different missions, notes Berger. “ICE has armed agents, and is the enforcement arm,” he said. “USCIS is a ‘benefits’ agency, and its job is to adjudicate applications. Having armed USCIS officers blurs this line.” He believes the only reason to add armed agents at USCIS is to intimidate green card applicants and to detain people who come in for interviews. “All of this will have a chilling effect on employers offering sponsorship and employees wanting to stay in the United States.”
USCIS Director Joseph Edlow (R) and Secretary of State Mike Pompeo applaud and congratulate new U.S. citizens during a naturalization ceremony on October 22, 2020. Edlow was deputy director for policy at USCIS at the time of the photo. (Photo by MANUEL BALCE CENETA/POOL/AFP via Getty Images)
POOL/AFP via Getty Images
The Immigration Rule May Not Be Lawful
After the terrorist attacks of September 11, 2001, Congress passed the Homeland Security Act and divided the functions of the Immigration and Naturalization Service within the new Department of Homeland Security. Congress did not intend USCIS to be an enforcement agency, but to focus on benefits.
The agency was founded to focus “exclusively on the administration of benefit applications,” according to the history section that still appears on the USCIS website. “On March 1, 2003, U.S. Citizenship and Immigration Services assumed responsibility for the immigration service functions of the federal government,” according to the website. “USCIS was founded to enhance the security and efficiency of national immigration services by focusing exclusively on the administration of benefit applications. The Homeland Security Act created Immigration and Customs Enforcement and Customs and Border Protection to oversee immigration enforcement and border security.” (Emphasis added.)
Despite this history, USCIS Director Joseph Edlow said in a press statement announcing the new rule, “USCIS has always been an enforcement agency.” Critics may say that echoes the famous line in George Orwell’s novel 1984 that “Oceania had always been at war with Eastasia.”
Jon Wasden of Wasden Law believes the new rule granting USCIS law enforcement authorities is unlawful. “Under the Homeland Security Act, it’s pretty clear that USCIS isn’t supposed to be gun-toting cowboys,” he said in an interview. “The active enforcement activities the agency is dreaming about are precluded by law. More than anything, this is a test of the courts, including the Supreme Court, and if they will find a way to roll over and appease Trump or stand for the rule of law.”
When USCIS begins to flex its new authorities, legal action is likely. Wasden said, “Companies that face enforcement action, trade groups and individual workers whose rights have been violated all would have standing.”
