Immigration fraud is very common in the U.S. immigration system. As a result, government agencies evaluating immigration benefits have become highly skeptical and the penalty for fraud can be substantial. Many of the problems stem from a lack of understanding or from the political realities in the immigrant’s home country.
Many immigrants use any means necessary to pursue their American dream. However, material misrepresentations made to get immigration benefits are considered immigration fraud and can lead to substantial penalties.
“Willful misrepresentation” and “fraud” are distinct actions but share common elements. A finding of either one can carry substantial penalties, such as deportation or revocation of immigration benefits.
Willful misrepresentation requires all of the following:
- Person procured, or sought to procure, a benefit under U.S. Immigration Law
- Person made a false representation
- False representation was willfully made
- False representation was material
- False representation was made to a U.S. government official
Fraud has all of the same elements as willful misrepresentation but includes the additional elements of:
- False representation was made with the intent to deceive a U.S. government official who is authorized to act upon the request.
- U.S. government official believed and acted upon the false representation by granting the benefit.
Even when the person was unsuccessful in obtaining the benefit, however, a finding of fraud is still possible for “seeking to procure” that benefit.
Common Types of Immigration Fraud
There are three common types of immigration fraud:
- Document or identity fraud – this involves using counterfeit documents, or documents belonging to someone else, to gain immigration benefit.
- Marriage fraud – occurs when an immigrant enters a fraudulent marriage with a U.S. citizen for the sole purpose of gaining immigration benefits.
- Benefit fraud – when a foreigner lies on their immigration application to get U.S. immigration benefits. A benefit fraud may involve more than one conspirator, where all the parties may be working together to gain some benefit.
Defenses Against Immigration Fraud
Unfortunately, many immigrants are accused of fraud unfairly. If you have been charged with immigration fraud, there are several defenses you can use. However, it’s advisable to hire an experienced immigration attorney along with an experienced criminal attorney from the start to get the best representation and opportunity for a good defense. Sam Shihab & Associates can help you navigate this potentially complicated process.
Immigration fraud charges could stem from misunderstanding, oversight, or simple mistakes. Therefore, getting a savvy immigration attorney early enough can make all the difference between obtaining or being denied your immigration benefit.
Here are five possible defenses to immigration fraud charges.
1. Lack of Knowledge of Occurrence of the Fraud
It is possible to demonstrate that you had no knowledge that a misrepresentation was made. For example, you can point out that you were not aware that your birth documents were fraudulent because you relied on family members abroad to obtain them. This could negate the “willful” element of the crime and could be a solid defense.
However, willfulness is a state of mind and it may prove difficult to convince a skeptical immigration official with broad discretion that you, in fact, did not know of the falsity. Accordingly, an adept advocate from Sam Shihab & Associates can help you effectively present your case.
2. Providing Proper Documentation
A language barrier can hinder effective communication for some foreign nationals, leading to an immigration fraud charge. However, these charges may have no legal basis. A good defense against such charges is to provide the proper documentation – for example, to prove that the translator committed an error.
It is best to have the help of an immigration attorney to ensure such documentation is presented as part of the evidence in court.
3. Lack of Intent
If you live in a foreign country and want to immigrate to the United States, you may seek advice from professionals in your country. These professionals may claim to be well versed in U.S. immigration issues.
For instance, in many Latin American countries, there are notaries who handle U.S. immigration filings. They may be recommended by family and friends and may appear trustworthy.
However, these notaries may be inexperienced or just offering false hopes while taking lots of money from you. They may provide incorrect advice or improper immigration documents that could cause you many problems.
In such a scenario, you can use the lack of intent as a defense, meaning that you didn’t mean to deceive the immigration official. The party that gave you improper documents may be charged if they reside in the United States.
4. Legal Marriage
Marrying someone for the sole purpose of getting a green card and lawful U.S. resident status is immigration fraud. Immigration benefits can be a factor in a marriage – it just cannot be the sole purpose. Accordingly, a bona fide or genuine legal marriage can be used as a defense against such a charge.
You’ll need to go through a valid marriage process and have witnesses who can confirm your relationship with your partner. The witness may be a person who saw your relationship evolving in another country, or one who was aware of your relationship with your partner.
5. Misrepresentation of Facts
When you are charged with immigration fraud for misrepresenting facts, the government may require factual evidence that you did not have an intention to mislead. These are highly factually driven cases where you may have to prove that certain elements of the fraud charge were absent. Defending such a case is highly technical and needs the help of an experienced immigration attorney.
Consequences of Immigration Fraud
If you are charged with immigration fraud and fail to properly defend it, there are severe consequences. For example, if you are already residing in the U.S., you could face deportation or a permanent bar from receiving an immigration benefit. If you are outside the U.S. you could be barred from entering the country.
Such a finding in your past, no matter how far back, can also harm any future benefits you may seek. For example, the Board of Immigration Appeals examined the situation where the details of a person’s prior marriage benefits request was used as grounds for denying benefits based on his current marriage. The Board upheld the denial by concluding that this person’s prior marriage was fraudulent – even though no such finding was made on the prior marriage application and without even raising any concerns about the legitimacy of the current marriage.
Fraud Detection and Investigation
The U.S. government has become increasingly concerned with fraud claims. Immigration officials are now trained to be highly skeptical of any claims that are made and can vigorously investigate.
For example, in recent years, USCIS has ramped up its “site visits” or compliance reviews of H-1B workers. In general, this includes an unannounced visit from a fraud detection officer who will interview the employee, his/her co-workers, and the employer to verify job duties, physical workspace, salary, and other employment details. Participating in a site visit is considered “voluntary” – although unwillingness to participate could negatively affect the petition. USCIS and the Department of Labor have also announced more collaborative practices between the agencies to target allegations of fraud.
The government has also begun site visits for students with Science, Technology, Engineering, Mathematics (STEM) degrees to oversee an employer’s internship and training programs.
Further, immigration officials frequently interview family members, colleagues, and others to compare their responses to yours. They are also capable of searching your cell phone and social media handles to search for information that could be used against you.
Because fraud allegations are so detail-oriented, effective advocacy from an experienced immigration attorney can help you present your case in the most favorable light.
Get Help from a Columbus Immigration Attorney
A Sam Shihab & Associates immigration attorney can answer any of your questions before you begin the immigration process. Consulting an experienced lawyer can help you avoid immigration scams which can get you in trouble. Hiring a qualified criminal attorney will also help you be prepared for your defense should there be criminal indictment.
A knowledgeable immigration attorney can also defend you against immigration fraud charges. The lawyer can help you avoid potential deportation, loss of your legal status, permanent inadmissibility to the U.S., and other penalties.
Contact us today to learn how we can help.