Records That Were Once Invisible Have Begun to Speak
The DOJ Criminal Records-DHS Sharing Executive Order and the New Variable in Immigration Screening
In April 2025, when the Internal Revenue Service (IRS) and Immigration and Customs Enforcement (ICE) signed a memorandum of understanding (MOU) to share taxpayer information, considerable tension ran through immigrant communities. The fact that personal information submitted for tax filing could be used for immigration enforcement was a source of anxiety even for those with lawful status. Ten months later, on February 6, 2026, President Trump signed another information-sharing executive order. This time, it is not the IRS but the Department of Justice (DOJ). Executive Order 14385, formally titled "Protecting America's Security and Welfare from Criminal Actors and Other Threats to Public Safety," directs the DOJ to provide the Department of Homeland Security (DHS) with the fullest possible access to Criminal History Record Information (CHRI) held by the DOJ.
If the IRS's tax information reveals who lives where and how much they earn, the DOJ's criminal record information reveals who was arrested when and where, and what charges they faced. In effect, the eye of immigration screening has shifted from the wallet to the criminal record.
◆ The Structure and Scope of Executive Order 14385
"Changes in the law begin quietly and spread without a sound."
Signed on February 6, 2026, and published in the Federal Register on February 11, this executive order directs two main things. First, the Attorney General must provide DHS with Criminal History Record Information (CHRI) held by or accessible to the DOJ, for purposes of DHS's screening and vetting operations, "to the maximum extent permitted by law." Second, the Secretary of Homeland Security may exchange CHRI with the immigration authorities of countries participating in the Visa Waiver Program (VWP), countries that are parties to the Preventing and Combating Serious Crime Agreement, and other trusted allied nations.
The key here is the scope of CHRI. The criminal record information maintained by the FBI, under the DOJ, includes arrests, detentions, indictments, pretrial proceedings, trials, and every disposition of these charges. Dispositions include not only convictions but also dismissals, acquittals, sentencing, probation, and parole. In other words, cases where a person was arrested but never charged, or charged but had the case dismissed, all remain in the record, and this record is what gets passed on to DHS.
However, this executive order does not direct the collection of new information; rather, it expands the scope of sharing for records that already exist. The FBI's National Crime Information Center (NCIC) and the Interstate Identification Index already hold tens of millions of accumulated criminal records. The issue is that DHS previously had only limited access to this data, and now that barrier has been lowered. The phrase "to the maximum extent permitted by law," which appears repeatedly throughout the executive order, reveals an intent to interpret existing limitations as broadly as possible.
◆ After the IRS, the DOJ: A Chain of Information Sharing
"Once one door opens, the next one opens more easily."
To understand Executive Order 14385, it helps to look at its immediate precedent. On April 7, 2025, Treasury Secretary Scott Bessent and DHS Secretary Kristi Noem signed the IRS-ICE memorandum of understanding on sharing taxpayer information. Through this MOU, ICE became able to verify the name, address, and tax information of individuals who had received final removal orders or who were the subject of federal criminal investigations. It also came to light during litigation that, in early 2025, ICE had requested more than one million records from the IRS.
There was also pushback within the IRS itself. IRS legal counsel warned that the agreement was likely to violate taxpayer privacy law, and Acting IRS Commissioner Melanie Krause resigned in opposition to the agreement. In November 2025, a federal judge issued an order temporarily halting the IRS-DHS record sharing, but in February 2026 the D.C. Circuit Court of Appeals issued a ruling upholding the policy, and information sharing has continued.
It is against this backdrop that Executive Order 14385 emerged. If IRS information sharing handed DHS an immigrant's economic activity records, DOJ information sharing hands over an immigrant's criminal record. When the two streams merge, DHS is positioned to look up a given immigration applicant's financial status and criminal record at the same time. Each piece is partial information on its own, but combined, they form a highly detailed personal profile.
◆ The Wide Gap Between Arrest and Conviction
"A record does not carry context."
To understand the practical impact of this executive order, one must first understand how criminal records are treated under U.S. immigration law. Section 212(a)(2) of the Immigration and Nationality Act (INA) provides that a noncitizen convicted of a Crime Involving Moral Turpitude (CIMT) is inadmissible. CIMTs cover a relatively broad category of crimes, including theft, fraud, and assault. However, an exception is recognized for a single minor offense. This petty offense exception applies only where the maximum possible sentence is one year or less and the actual sentence imposed is six months or less.
The problem arises in the gap between arrest and conviction. Immigration law requires a conviction for most adverse consequences, but the arrest record itself is not ignored in immigration screening either. The citizenship application (Form N-400) requires disclosure of every arrest record, not just convictions. Even if the charge was dismissed or the record was expunged, it must still be reported, and failing to disclose it can be treated as false testimony, which can itself be a ground for a finding of bad moral character.
Care is also needed regarding the effect of expungement under immigration law. Even if a conviction is expunged in state court, it is still treated as a conviction for immigration purposes. This is because federal immigration law does not recognize the expungement of a record under a state rehabilitative statute.
Looking at DUI, which is relatively common in the Korean community, a single DUI conviction is not itself classified as a CIMT, so it is not immediately a ground for removal. However, it can be a negative factor in the good moral character determination for citizenship review, and if there are two or more DUI convictions within the review period, a rebuttable presumption of bad moral character arises, which requires substantial evidence to overcome (Matter of Castillo-Perez, A.G. 2019). The situation becomes more serious when drugs are involved or when an accident occurs. Shoplifting, because it involves intent to steal, qualifies as a CIMT, and even a single conviction, if it does not fall within the petty offense exception, can be grounds for inadmissibility or removal.
◆ Changes to Moral Character Screening Standards and the Practical Risk
"The same record can mean something different depending on the eyes that read it."
The impact of this expanded criminal-record sharing becomes even more complicated when combined with the change to moral character screening standards (Policy Memorandum PM-602-0188) that USCIS announced on August 15, 2025. This policy memo shifts the evaluation of a citizenship applicant's Good Moral Character (GMC) from the previous checklist-based approach to a "holistic evaluation" approach.
Under the new standard, immigration officers are instructed not merely to check for the existence of a criminal record, but to evaluate the applicant's overall pattern of conduct. Positive factors such as community contributions, supporting a family, and a tax-payment history are considered, but at the same time, "conduct inconsistent with civic responsibility," even where it does not amount to a legal conviction, is also subject to review. The memo specifies that repeated traffic violations, harassment, and aggressive behavior can also serve as a basis for the moral character determination.
When this change is combined with Executive Order 14385, the following scenario becomes real. Green card holder Mr./Ms. A applies for citizenship. Previously, in order to check A's criminal record, a USCIS officer relied mainly on the applicant's self-disclosure and an FBI fingerprint check. Now, with the DOJ's criminal record database opened directly to DHS, the officer can look into past arrest records that the applicant never disclosed or had simply forgotten about. A record from ten years ago, when police were called to a domestic dispute and A was arrested but the charge was later dismissed; a summons received for a business regulatory violation; an old criminal summons after a traffic accident — all of this can surface during the review process.
Regulatory violations are something that is particularly easy for Korean small business owners to overlook. Violations such as liquor license violations, health code violations, or operating without a permit rarely lead to criminal prosecution, but they can still leave an arrest or summons record, and how such a record will be evaluated under the new moral character standard is left to the officer's discretion. The same is true for arrest records arising from domestic disputes. In Korean families, it is not uncommon for an argument between spouses that does not rise to the level of domestic violence to still result in a police response and arrest after a neighbor's report, and even when the charge is ultimately dismissed in most cases, the arrest record itself remains in the FBI database.
Closing Thoughts
Executive Order 14385 does not define any new crime or change the text of the immigration statute. It widens the channel through which records that already exist flow to an agency that already exists. But in immigration screening, the volume of information available determines the depth of the review. Old arrest records that might not have surfaced in an FBI fingerprint check before, and minor records that had been kept only at the state level, will now come into DHS's hands at the federal level.
For someone preparing an immigration application, the most realistic first step right now is to check their own record first. Filing a Freedom of Information Act (FOIA) request with USCIS allows you to view your own immigration file (A-file), and requesting an FBI Identity History Summary allows you to check your own criminal-related record as kept by the FBI. This is because a past record that you no longer remember, or believed was already resolved, may still remain on file.
Form N-400 requires disclosure of every arrest record. It does not matter whether the charge was dismissed or the record was expunged. Failing to disclose it is treated as false testimony, which itself becomes a ground for a finding of bad moral character. Rather than hiding the record, the reasonable response is to identify the record and prepare an explanation for it. If a past arrest ended in dismissal, it helps to prepare the dismissal certificate in advance; if there was a conviction, it helps to prepare documentation demonstrating subsequent rehabilitation and contributions to the community.
Following the IRS information sharing, and now the DOJ's criminal records, the barriers to information sharing between federal agencies are coming down quickly. Executive Order 14385 goes a step further, even allowing the reciprocal exchange of criminal records with foreign governments, which can also affect travelers and immigrants from countries participating in the Visa Waiver Program (VWP). Exactly how this change will affect individual immigration reviews will only become clear once real-world cases accumulate. What is certain is that the amount of information available to immigration officers has increased, and applicants need to know their own records even better than the officers who will be reviewing them.
Disclaimer: This column is for general informational purposes only and does not constitute legal advice for any specific case. Please consult a qualified immigration attorney regarding your individual situation.
Law Office of Attorney Jin D. Cho
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