Visa Fraud Charges
Visa fraud occurs when a visa applicant deliberately provides false information to the federal government to obtain a visa or other related immigration documents and is a very serious crime. A person can even be convicted of visa fraud after their application has been granted, which means they can face imprisonment, fines, and deportation from the United States.
Visa fraud is defined as a crime in federal law under 18 U.S.C § 1546, and is not only limited to forgery or false information on visa, but any document or statement related to immigration, including:
- Alien registration receipt card
- Border crossing cards
- Non-immigrant and immigrant visas
- Statements made under oath
A conviction of visa fraud carries severe penalties, with up to 10 years imprisonment for the first offense with no aggravating factors, and much higher if the conviction also involves other crimes like drug trafficking. If you are facing an investigation or charges for visa fraud or any related crime, you should hire an experienced immigration fraud attorney as soon as possible.
What Constitutes Visa Fraud?
A key element of fraud, no matter whether it is visa fraud, marriage fraud, bank fraud or any other fraud-related crime, is that the crime involves acting knowingly. In essence, one cannot commit fraud unknowingly. This means is not enough for the government to show that the defendant provided false information, they must prove that false information was knowingly provided to obtain entry or residency in the United States.
As there are various kinds of processes a person can go through to enter or reside in the United States, there are many different documents that can be obtained or represented fraudulently. The U.S Citizenship and Immigration Services (USCIS) is in charge of investigating immigration fraud, and carefully monitor applications to visas and other immigration programs. The efforts to combat fraud involve going after individual immigrants for representing fraudulent information, as well as employers and other American Citizens who try to abuse the immigration system programs. There are various programs that USCIS monitors for fraud include:
H-1B and H-2B Visa Fraud
These programs exist to help American companies recruit highly skilled immigrants when there is a shortage of qualified workers within the United States. While it is important to have this option available, there are concerns that it is instead used to fraudulently, often to bypass labor regulations or allow people to obtain immigration when they are not qualified.
H-1B or H-2B fraud can either be committed by the application representing false information, or by the U.S employer for misusing the program and not abiding by its requirements. Fraud indicators include:
- Job Duties specified in the visa petition do not match the worker’s role, including when the role is a higher position than the petition description.
- Large wage disparities between visa workers and other workers performing similar duties, indicating that they employer is recruiting outside the U.S to cut costs.
- The worker is not paid the wage certified on the Labor Condition Application (LCA).
- The worker has less experience than U.S applicants in similar positions in the company.
- The worker is not working at the location certified on the LCA.
Once USCIS receives the application, the forms and supporting documentation are reviewed to determine whether the foreign-born national’s petition for permanent residency will be granted. USCIS will conduct interviews with the foreign-born national and the citizen-spouse to determine the validity of the marriage. If the application is approved, USCIS will award the foreign-born national conditional lawful permanent residency status for two years. Before the two years has elapsed, the parties can file a Petition to Remove Conditions on Residence (Form I-751) with USCIS to remove the conditional status of the foreign-born national. The parties will again have to prove the marriage is legitimate and USCIS may require another marital interview. If the Form I-751 is approved, the conditions of residency will be removed and the foreign-born national will become an unconditional lawful permanent resident.
EB-5 Visa Fraud
The EB-5 visa, or “employment-based fifth preference category”, is a program that allows immigrant investors to become lawful permanent residents by investing at least $900,000 to finance a business in the United States that employs at least 10 American workers. Generally, the purpose of this program is to encourage some foreign investment and economic growth in the United States, often in locations that could use the support, in exchange for residency.
As this visa requires having a great amount of wealth, there are certainly fewer people who take advantage of it compared to employment visas and other programs. Nonetheless, there are cases of fraud in this program, often involving international money laundering schemes and misappropriated funds.
Tourist or Business Visa Fraud
Applying for a visa to the United States for the purpose of business or pleasure for a limited period of time is a much simpler process than applying for a visa to be employed and reside in the U.S. These visas, called the B1 or B2 visas, allow a person to spend a maximum of 180 days in the United States to do business, tourism, seek medical treatment, or participate in school courses that are not for credit. Obtaining these visas typically involve submitting an application to provide information about the purpose of visiting the U.S, paying a fee, and conducting an interview at the U.S Embassy.
While this process is generally simple to facilitate easier travel to the United States, it can be abused. If a person intends to overstay their visa expiration and seek paid employment or school credit within the United States, they will be guilty of visa fraud. This is because the visa application process and interview require stating that the intent of travel is for business or pleasure.
In addition to fraudulent use of a B1 or B2 visa, people from certain countries can take advantage of the Visa Waiver Program (VWS), which allows them to visit the United States without going through a visa application process. This program applies to most European nationals, as well as people from Australia, Chile, Japan, New Zealand, Singapore, South Korea, and Taiwan, and allows for a stay up to 90 days for tourist or business purposes.
One important element of tourist visas to note is that if a person uses it to obtain a longer stay, even if they plan to do so through a lawful process, they can still be guilty of visa fraud. For example, if a French citizen enters the U.S through VWP with the intent to marry his American partner and lawfully apply for permanent residency, he/she may be guilty of visa fraud for misusing a program intended for tourism and business.
The K-1 and K-3 vias are used a foreigner who is engaged to or marrying a U.S citizen to stay in the United States with their fiancé or spouse. It is also sometimes used to obtain immigration by pretending to be in a relationship, often referred to as marriage fraud. While it is difficult for USCIS to prove that a relationship is a sham and motivated by immigration only, some indicators of suspicion are:
- Significant age difference between the spouses.
- The couple do not share a language.
- The marriage or engagement happened soon after meeting.
- The couple do not regularly reside in the same home.
The list above are only red flags and not direct proof of any fraud, and there are many more indicators that can contribute to suspicion or investigation from USCIS.
Visa Fraud Defense
If you are facing federal charges for visa fraud, it is important to formulate a proper defense with a legal team knowledgeable in visa fraud cases. A conviction for visa fraud can not only lead to a term of imprisonment, but it can also prompt removal or deportation proceedings. It can also prevent you from being able to re-enter the country in the future. We often work with clients who have nontraditional reasons for obtaining a visa that are otherwise lawful. For example, sometimes our clients obtained marriage visas and live in different locations than their spouses because or school, work, military deployment, or other reasons. The attorneys at Tarlton Polk PLLC will work with you and your spouse to demonstrate that your stay in the United States is genuine. If you have been charged with visa fraud and you are a foreign-born national, you must fight the allegations to protect your residency status in the United States.