On May 22 2017 by William A. Stock

Immigration Agencies Ramp Up Compliance Visits, Looking for Fraud

On Monday, news stories from New York City reported that agents of an immigration agency had appeared at a public school in Queens. Initial reports assumed that the agents were from Immigration and Customs Enforcement (ICE), the Department of Homeland Security (DHS) component that apprehends and removes immigrants without status from the United States.

DHS and ICE quickly clarified, however, that the agents were from another DHS component, United States Citizenship and Immigration Services (USCIS).  That agency is responsible for adjudicating applications for immigration benefits.

The appearance of USCIS adjudications officers at a public school caused outcry on social media and from some politicians.  The initial reaction was a perfect illustration of the way in which anxieties of communities with immigrant populations can be easily inflamed. Because of the President’s rhetoric and the Administration’s making all undocumented immigrants a priority for removal, an otherwise routine government activity was initially reported as an escalation of enforcement against the undocumented population. 

USCIS officers are not directly responsible for immigration enforcement, however.  Their agency is responsible for deciding whether particular applicants will receive immigration benefits – for example, whether a couple are legally married so that the United States citizen spouse can sponsor the other spouse to immigrate.  It was likely just such a case that caused the incident at PS 58 in Queens: in the course of determining whether a couple had a real marriage, the officers were trying to verify that their child attended school based on the address where the couple claimed to reside.

About ten years ago, USCIS began greatly expanding its capacity to conduct “fraud detection and verification” operations as part of adjudicating immigration benefits.  Congress added a $500 “Fraud Detection Fund” fee to two common temporary visa petitions used by companies to sponsor employees for work in the United States.  That fund enabled the agency to hire hundreds of officers and assign them to verification of facts claimed by employers and other immigration petitioners.  As part of this effort, for example, the agency obtained commercial database information from Dun and Bradstreet to independently verify that companies seeking immigration benefits for employees were operating as they claimed.  Fraud detection officers also have broad access to DHS systems, where filings of petitioners and records of beneficiaries can be cross-referenced to identify inconsistencies that a petitioner may need to explain.

USCIS Fraud Detection and National Security (FDNS) officers are not limited to conducting database checks, however.  As the incident in Queens illustrates, some FDNS officers are located at field offices around the country, where they are available to go out and ascertain the “facts on the ground” and verify that they match the assertions in immigration filings.  It is common for officers to visit employers and verify that the location of employment is, in fact, as claimed, and to attempt to locate the beneficiary at the location of employment that is claimed.  Because employers must offer to pay sponsored employees the “prevailing wages” in the area of employment, the FDNS officers will speak with the employee and request verification of income, and allow the employee to speak directly with them about any violations of the pay requirement, or any other concerns the employee may have. 

In the current environment, however, even workers with legal immigration status are understandably nervous about government agents claiming to only be verifying facts.  The unstated alternative – if the officers are not able to verify those facts – may be devastating consequences for the sponsored employee.  Where FDNS officers are not able to locate the sponsored employee, or to verify one or more details claimed in the employer’s visa petition, the petition may be denied or revoked.  If the employer’s request for status on behalf of the employee is denied or revoked, the employee will have to leave his or her job and the United States. 

Because visits from FDNS are now a routine part of the adjudication of requests for immigration benefits, employers and employees both must be counseled about how to prepare for such visits.  Often, the people who most need training are the employer’s “first contact” representatives: receptionists, HR staff or security personnel to whom visiting FDNS officers will identify themselves when looking for an employee or the employer’s representative.  These employees should be given clear protocols to follow about where such requests for information should be directed (normally, to the person responsible for the company’s immigration filings).

Employees being sponsored for immigration benefits, as well, need to be prepared for the possibility of these FDNS site visits.  They should be counseled that such visits are now a routine part of the immigration system, and are often conducted merely because an employee’s petition was randomly selected for post-approval “quality control.”  In such situations, it is to the employee’s benefit to cooperate and make sure the officers can verify the facts of their employment. 

At the same time, both employers and employees need to be aware that the FDNS will increasingly be used by this administration as a tool to create high-profile prosecutions.  In a recent case in Texas, the government obtained felony convictions for wire fraud and obtaining immigration benefits by fraud against the co-owners of a software services company.  When agents had been unable to verify that employees sponsored to work at one of the company’s client’s had actually worked there, it gradually became clear that claims made by the company about the work its employees would be doing was false.  The Attorney General recently asked every United States Attorney around the country to designate a “point person” on immigration-related prosecutions, and highlighted prosecutions for immigration benefit fraud as one of his priorities for criminal prosecution. 

The initial reports of this week’s visit by FDNS officers to a public school in Queens confused the arrest of removable immigrants with the administrative verification process.  Those initial anxieties, however, were actually grounded in valid concerns that employers, petitioners for immigration benefits, and foreign nationals should have about government efforts to verify their eligibility for immigration to the United States.  In today’s environment, a misunderstanding by an FDNS officer could result in revocation of a visa, deportation of a worker, or prosecution of an employer.  Therefore, everyone involved in the process needs to be aware of when a routine “site visit” has crossed a line, at which point any further communication should be through counsel prepared to protect their interests. 

Reprinted with permission from the May 16, 2017 edition of the The Legal Intelligencer© 2017 ALM Media Properties, LLC. All rights reserved.

Further duplication without permission is prohibited. ALMReprints.com  877-257-3382  reprints@alm.com.