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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

Criminal Prosecution for Visa Fraud
by Thomas W. Dean, JD,

1. BACKGROUND

The new "War on Terror" has ushered in a new era of unprecedented immigration enforcement by the INS, FBI and other federal agencies. Recent reports suggest that as part of this aggressive policy, the federal government has increased its prosecutions against individuals and companies for visa document fraud. Even before September 11, enforcement of immigration crimes had been on an increase for the last 10 years. Comprehensive data from INS, the courts and the Office of Personnel Management show a dramatic surge in the government's use of criminal sanctions against illegal immigration. From 1992 to 1998, prosecutions brought as a result of INS investigations doubled, jumping to 14,616 in 1998 compared with 7,335 in 1992. The increase in INS prosecutions has been a major factor in the sharpest annual rise in the overall number of federal prosecutions since 1971. One result was that in 1998 the INS became second among all the agencies in terms of its share of total federal convictions, besting most other agencies such as the DEA, Customs, ATF and IRS. The only agency with slightly more federal convictions that year was the FBI. Since September 11, the FBI has been working much more closely with he INS and many new prosecutions will likely be a result of joint efforts by those agencies. In 1992, the median INS prison sentence was only 2 months. In 1998, the median INS prison sentence was 12 months. This year it will no doubt be much larger.

Initially, the sharp increase in all enforcement was the result of the policy adopted by the Clinton Administration and Congress to dramatically increase the size of the INS, increase penalties for immigration offenses and pressure prosecutors to pursue immigration crimes. Because of the new laws and regulations enacted after September 11, this trend will only be accelerated under the Bush administration. Prosecutions are expected to skyrocket even farther. One common type of immigration criminal offense is Visa Document Fraud. This article will provide a brief explanation of the law in this area and potential consequences resulting from a violation.

2. IMMIGRATION AND NATIONALITY ACT

The Immigration and Nationality Act (INA) contains provisions which prohibit document fraud as it relates to the application for visas. Sec. 274C. of the Immigration and Nationality Act (INA) [8 U.S.C. 1324c] provides that it is unlawful for any person or company to:

(1) forge, counterfeit, alter, or falsely make any document for the purpose of satisfying a requirement of this Act or to obtain a benefit under this Act,

(2) use, attempt to use, possess, obtain, accept, or receive or to provide any forged, counterfeit, altered, or falsely made document in order to satisfy any requirement of this Act or to obtain a benefit under this Act, or

.........

(5) prepare, file, or assist another in preparing or filing, any application for benefits under this Act, or any document required under this Act, or any document submitted in connection with such application or document, with knowledge or in reckless disregard of the fact that such application or document was falsely made or, in whole or in part, does not relate to the person on whose behalf it was or is being submitted.

To violate this section, a person does not have to make an actual false statement in a visa application. The definition of the term "falsely make" means to "prepare or provide an application or document, with knowledge or in reckless disregard of the fact that the application or document contains a false, fictitious, or fraudulent statement or material representation, or has no basis in law or fact, or otherwise fails to state a fact which is material to the purpose for which it was submitted." Therefore, failing to provide correct information about why the application was submitted and what the visa would be used for may be enough to incur a criminal violation. For example, obtaining a visitors visa for the purpose of becoming employed in the US may be considered a violation. Very stiff fines of not less than $250 and not more than $2,000 for each document that is the subject of a violation are imposed for a violation of this section.

Further, imprisonment in a federal prison is possible under certain circumstances for persons who prepare the actual application on behalf of another:

(1) Whoever, in any matter within the jurisdiction of the Service, knowingly and willfully fails to disclose, conceals, or covers up the fact that they have, on behalf of any person and for a fee or other remuneration, prepared or assisted in preparing an application which was falsely made (as defined in subsection (f)) for immigration benefits, shall be fined in accordance with title 18, United States code, imprisoned for not more than 5 years, or both, and prohibited from preparing or assisting in preparing, whether or not for a fee or other remuneration, any other such application.

(2) Whoever, having been convicted of a violation of paragraph (1), knowingly and willfully prepares or assists in preparing an application for immigration benefits pursuant to this Act, or the regulations promulgated thereunder, whether or not for a fee or other remuneration and regardless of whether in any matter within the jurisdiction of the Service, shall be fined in accordance with title 18, United States Code, imprisoned for not more than 15 years, or both, and prohibited from preparing or assisting in preparing any other such application.

INA sec. 274C(e).

3. TITLE 18, UNITED STATES CODE

The Immigration and Nationality Act is not the only source of criminal liability for immigration document fraud. Title 18 of the United States Code is also applicable. Chapter 47, Section 1546 States:

(a) Whoever knowingly forges, counterfeits, alters, or falsely makes any immigrant or nonimmigrant visa, permit, border crossing card, alien registration receipt card, or other document prescribed by statute or regulation for entry into or as evidence of authorized stay or employment in the United States, or utters, uses, attempts to use, possesses, obtains, accepts, or receives any such visa, permit, border crossing card, alien registration receipt card, or other document prescribed by statute or regulation for entry into or as evidence of authorized stay or employment in the United States, knowing it to be forged, counterfeited, altered, or falsely made, or to have been procured by means of any false claim or statement, or to have been otherwise procured by fraud or unlawfully obtained; or

Whoever knowingly makes under oath, or as permitted under penalty of perjury under section 1746 of title 28, United States Code, knowingly subscribes as true, any false statement with respect to a material fact in any application, affidavit, or other document required by the immigration laws or regulations prescribed thereunder, or knowingly presents any such application, affidavit, or other document which contains any such false statement or which fails to contain any reasonable basis in law or fact - shall be fined under this title or imprisoned not more than 10 years (in the case of the first or second such offense, or 15 years (in the case of any other offense), or both.

4. FORFEITURE PROVISIONS

Violations of these laws can also result in the forfeiture of property. Section 982 provides that a court shall order that a person convicted of document fraud forfeit (i)any conveyance, including any vessel, vehicle, or aircraft used in the commission of the violation and (ii) any property real or personal that constitutes, or is derived from or is traceable to the proceeds obtained directly or indirectly from the commission of the offense or that is used to facilitate, or is intended to be used to facilitate, the commission of the offense.

5. RACKETEERING AND ORGANIZED CRIME

The law even provides for prosecution of persons under the Racketeering and Organized Crime provisions of section 1961 for misusing visas: "racketeering activity" means any act which is indictable under title 18, United States Code: (among other things) section 1546 relating to fraud and misuse of visas, permits, and other documents. Of course, conviction under this law brings with it a much harsher penalty of 20 years maximum in a federal prison.

6. ELECTRONIC SURVEILLANCE

You should also be aware that persons suspected of visa fraud may be subject to electronic surveillance. Section 2516 states:

(1) The Attorney General...may authorize an application to a Federal judge of competent jurisdiction for, and such judge may grant in conformity with section 2518 of this chapter an order authorizing or approving the interception of wire or oral communications by the Federal Bureau of Investigation, or a Federal agency having responsibility for the investigation of the offense as to which the application is made, when such interception may provide or has provided evidence of section 1546 (relating to fraud and misuse of visas, permits, and other documents).
7. COMPANY ACCOMPLICE LIABILITY

From a reading of the above statutes, it would appear that an employer who did not itself actually prepare and submit any fraudulent applications or other documents to the INS cannot be held responsible for criminal document fraud. However, there is a concept in criminal law, which is included in the criminal code, called "accomplice liability." In short, this concept provides that any person who (recklessly, knowingly or intentionally) assists another in committing a crime is also guilty of committing the crime. According to 18 U.S.C. 2:

(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.
The definitions of the various terms in the above statute are relatively self evident. For instance, anyone who advises a person about how to do something which is a violation of the law has "counseled" the person and is equally guilty if the other person follows the advice and commits the crime. Or, a person would be said to have "induced" another to commit a crime if there was an offer of financial reward (job offer?). "Procuring" the commission of a crime could include paying another person to commit the offense (even if that other person is an attorney preparing that application).

8. DEFENSES

What if a person or company did not know that a certain action was document fraud? What if the person was mistaken about the fact that a certain thing was, technically, document fraud? The criminal law anticipates this possibility and provides a defense in such a situation. If a person commits a crime through a mistake of fact, then such a violation is excused. A classic example of the defense is where a person believes he is shooting a gun at a practice dummy that later turns out to be an actual person. The conduct may be excused, provided that the shooter was not reckless with regard to making the mistake.

In the context of accomplice liability for document fraud, where it is alleged that a person paid for an attorney to file a fraudulent application, this defense could be asserted by proving that the person did not have any knowledge that the document submitted contained any false or misleading information. However, if the allegation charges that a person counseled, advised or encouraged another person to submit a fraudulent application, then this defense could not be used, since there was actual participation in the crime.

9. CONCLUSION

Often times, the issue of visa document fraud will turn on the definition of "falsely make." As stated above, the definition of the term "falsely make" means to "prepare or provide an application or document, with knowledge or in reckless disregard of the fact that the application or document contains a false, fictitious, or fraudulent statement or material representation, or has no basis in law or fact, or otherwise fails to state a fact which is material to the purpose for which it was submitted." It is important in the current political climate for noncitizens to understand that even an inadvertent mistake on a visa application could potentially trigger a criminal investigation for document fraud.


About The Author

A thirteenth generation American, Mr. Dean graduated from Bowling Green University, Magna Cum Laude, with a B.A. in political science, public administration and received his doctorate of law from Cleveland-Marshall College of Law, focusing his studies in the area of business and corporate law.

Mr. Dean has represented a wide variety of clients. He began his practice with his family firm, the oldest firm in the state of Ohio, representing clients in many areas including zoning, railroad, commercial litigation and contract law. He then moved to Arizona where he concentrated his efforts in the area of Native American law, as a special attorney to the Navajo Nation, the largest Native American Tribe, located in the American South West.

While in Arizona, Mr. Dean further developed his litigation skills as a criminal defense and civil rights attorney, representing numerous foreign nationals charged with criminal offenses. This is also where he began his practice as an immigration attorney, helping individuals charged with crimes to avoid deportation. His immigration practice expanded after moving to Washington, DC, where he worked for a non-profit legal reform organization and also represented individuals seeking political asylum in the US.

Since then, as a partner with International Law Group, Mr. Dean focused his efforts exclusively in immigration and nationality law and has acquired experience in all aspects of immigration law and procedure, successfully preparing and filing numerous immigration petitions and visa applications before the Immigration and Naturalization Service (INS) and the Department of Labor (DOL). His practice is broad based, including the representation of corporations, investors, professionals and also other workers, students and families wishing to live and in the U.S.

Mr. Dean stays abreast of the constantly changing immigration laws and regulations. He shares this breadth of knowledge through American-Immigration.com, which he developed and continuously updates with breaking news and informative articles.

Mr. Dean believes the strength of the US is dependent in part on its immigrant population and he has dedicated his career to the interests of persons wishing to immigrate to the US. He has lectured at universities and at seminars on immigration law and other important legal topics and has appeared for media and public speaking engagements throughout America. Mr. Dean is a member of the American Immigration Lawyers Association and works with other national and international policy reform organizations that are devoted to advancing the principles of justice, equality and individual rights for all the diverse peoples of America.


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