Rooting out fraud in the immigration system has been one of the key missions of U.S. Citizenship and Immigration Services under the Trump administration. So far, not much has surfaced.
It’s “shocking” to see “how little fraud they have found,” Angelo Paparelli of Seyfarth Shaw in Los Angeles told Bloomberg Law. The focus on “the prevalence of fraud and abuse” in the immigration system appears to be a “tempest in a teapot,” he said.
Of more than 23,000 site visits conducted in fiscal year 2018, the USCIS only referred 1,117 cases to Immigration and Customs Enforcement for benefit fraud, according to data provided exclusively to Bloomberg Law. Another 11,886 cases were referred for public safety concerns.
Of the 23,000 total site visits, 9,718 were random visits to verify that the employers were complying with visa program requirements. The USCIS found 13 percent of those employers not to be in compliance.
The agency also conducted 1,248 targeted site visits that were aimed at industries where fraud is more likely. Twenty-three percent of those visits uncovered fraud.
The agency’s two email boxes for fraud tips also have yielded little. One box is for the H-1B skilled guestworker program, while the other is for the H-2B low-skilled, seasonal guestworker program.
Between April 2017 and September 2018, the H-1B address received more than 6,300 tips, while the H-2B address received close to 550 tips, according to USCIS figures provided to Bloomberg Law.
Of those, “dozens” have led to active investigations, while “several” led to referrals to ICE for criminal investigation, the agency said.
There’s been a “remarkable amount of time and effort to chase down a chimera of fraud,” William Stock of Klasko Immigration Law Partners in Philadelphia told Bloomberg Law. As it turns out, “most employers are following the law,” he said.
Stock said it was somewhat surprising that more tips hadn’t come through the email addresses. But the fact that very few “lead to actionable intelligence” is “not a revelation,” he said.
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The number of referrals to ICE doesn’t equate to the number of cases where fraud was found by FDNS, according to the USCIS. It’s not unusual for a case referred to ICE for criminal investigation to involve multiple site visits from the USCIS’s Fraud Detection and National Security directorate, the agency said.
A single H-1B skilled guestworker fraud case, for example, could involve 10 or more petitions, all of which may be subject to one or more site visits.
But ICE referrals don’t tell the whole story, Matthew O’Brien, director of research at the Federation for American Immigration Reform, told Bloomberg Law.
There are specific criteria for the cases ICE will accept, largely relating to the probability of getting a conviction, he said.
Instead, the USCIS deals directly with the “vast majority” of potential fraud cases, said O’Brien, who served in FDNS before joining FAIR, which advocates for lower immigration levels.
That includes revoking visa petitions, asking the State Department to revoke visas, or denying petitions in the first place, he said.
In fact, the primary purpose of FDNS investigations is to provide information to support a USCIS adjudicative decision such as granting, denying, or revoking a visa petition, the agency said.
But “it’s very hard to get a read on what percentage overall of the H-1B applications are being looked at,” O’Brien said. “I don’t think” the USCIS “has any idea of how much fraud is actually going on,” he said.
The site visit numbers aren’t “massively higher” under the Trump administration than previous administrations, he said.
Buy American, Hire American
Anti-fraud investigations are among the efforts the agency is undertaking to implement President
“As a core part of the USCIS mission, we strive to unearth, investigate, and combat instances of fraud and other activities threatening the integrity of our nation’s lawful immigration system, harming American workers, and risking public safety and national security,” USCIS spokesman Michael Bars said in a statement provided to Bloomberg Law.
“To that end, USCIS will continue working to shine a light on acts of fraud wherever they can be detected so that those seeking immigration benefits on the merits of skill, ability, education, and potential contributions to American society aren’t undermined by those seeking to game our system and break our laws,” he said.
The agency has expanded its existing site visit program, under which FDNS officers visit the buildings of employers sponsoring foreign workers for visas.
Site visits can be random, targeted at industries where fraud is more prevalent, or based on complaints about a specific employer. Targeted site visits, which started in April 2017 as part of an effort to enhance the integrity of the immigration system, take more time but focus agency resources on rooting out fraud, the agency said.
The USCIS conducted 9,718 random site visits in fiscal year 2018, with most—6,300—focused on the H-1B skilled guestworker program. Targeted site visits amounted to 1,248 for the fiscal year, with H-1B visas leading the pack with 556. The USCIS found fraud in 40 percent of its targeted H-1B investigations.
There were also 12,724 “for cause” site visits in FY 2018.
Few Investor Program Investigations
For all of the “whoop de do” over fraud in the EB-5 immigrant investor program, “they only did 32 investigations” in FY 2018, Paparelli said.
The EB-5 program gives green cards to foreign nationals who invest at least $500,000 in a commercial enterprise that creates at least 10 U.S. jobs. Allegations of fraud have caused some prominent lawmakers—including Sens.
It seems that the USCIS has a “skewed view” of fraud in the H-1B and L-1 visa programs as compared with EB-5, Paparelli said. Employers sponsoring H-1B workers saw 6,300 random and 556 targeted site visits in FY 2018, while employers sponsoring L-1 intracompany transferees saw 1,781 random and 101 targeted site visits.
The site visits show “a predisposition to suspect violations in certain areas and a disinclination to investigate in other areas,” Paparelli said.
The 32 EB-5 site visits were conducted to check compliance with program rules, the USCIS said. Actual fraud investigations don’t necessarily involve a site visit, it said.
Stock said the USCIS has improved its site visit program.
“They continue to do these compliance exercises,” but “they have become much more effective in terms of targeting their efforts at cases where fraud is likely,” he said. The USCIS no longer is conducting “random repeat visits to Fortune 100 companies” to verify that the company exists, he said.
(Story has been updated to include additional figures and reporting throughout.)