Immigration Fraud Requires Pro-active Action

Increased levels of immigration fraud investigations require employers to take precautions

In part one we covered Immigration News Business Owners Need to Know in part two we looked at Small Business and Immigration Enforcement. In this part we’ll touch on the uptick of inspections on immigration fraud and steps employers need to take to ensure compliance.

Since 2009, Immigration authorities have been taking an increasingly aggressive approach to rooting out fraud in the immigration application process. Employers are confronting a marked increase in the frequency of unannounced, onsite, inspections by a special anti-fraud agency whose role within the immigration system is destined to become significant.

Since 2010, there has been an explosion of onsite inspections of employers by the Fraud Detection and National Security Unit (“FDNS”), a rapidly growing directorate within the Bureau of U.S. Citizenship and Immigration Service (“USCIS”).

A New Government Agency is Making its Mark

USCIS created FDNS in 2004 to investigate fraud associated, among other things, with petitions filed with the U.S. Government seeking immigration benefits. The most common petition executed by employers is the I-129 Form, which is filed in connection with applications for nonimmigrant work visas, like the H-1B Specialty Occupation Visa. Part 7 of Form I-129 admonishes employers that by executing that document, they are tacitly consenting to on-site visits and audits by the immigration authorities to verify their representations made in the course of the immigration application process.

Unannounced Site Visits are Increasing in Frequency

It was the case, only a few years back, that employers could be fairly confident that executing an immigration petition would have few consequences. But this is no longer the case. According to one source, between July 2009 and May 2014, FDNS conducted 75,000 site visits. Site investigations can lead to further requests for information, and even to referrals to Immigration Customs and Enforcement for criminal investigation.

More Visa Categories are Becoming Subject to FDNS Review

The scope of FDNS inspections has appreciably broadened since 2010 to include, most recently, in June 2014, the first inspections of L-1 (intra-company transferee) employers. It is expected that FDNS inspections of L-1 petitioners will expand and that other visa categories, like the E visa, will soon come under heightened scrutiny.

Indeed, at a 2014 symposium sponsored by the American Immigration Lawyers’ Association, in which FDNS practices were discussed, one panelist related that with respect to FDNS’s activities in Nebraska, a Government spokesman remarked that it was the Unit’s aim to inspect 100% of that State’s H-1B employers. Just as it is anticipated that immigration reform will lead to enhanced I-9 enforcement, it is also expected that FDNS fraud inspections will become far more prevalent.

Address Issues Beforehand

Although it is the case that FDNS has not yet been accorded the power to force employers to cooperate in an inspection, uncooperative employers may end up confronting a more muscular inquiry by Immigration Customs and Enforcement. For this reason, employers, generally, try to cooperate with the FDNS investigator. Because site visits by FDNS, generally, occur without prior notice, it behooves employers to develop a protocol for dealing with them.

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