SusanPai

February 12, 2009 - 11 Arrested in Multi-State Visa Operation Fraud

"This is a prime example of how the Department of Homeland Security identifies fraud," said Michael Aytes, USCIS's acting deputy director. "Our adjudication officers can spot inconsistencies during the application process that ultimately led to the successful outcome we're seeing today. Visa fraud undermines the integrity of the immigration system... The maximum sentence for conspiracy is five years in prison and a $250,000 fine. The maximum sentence for mail fraud is 20 years in prison and a $250,000 fine. The maximum sentence for wire fraud is 20 years in prison and a $250,000 fine. The maximum sentence for making a false statement in an immigration matter is 10 years in prison and a $250,000 fine."

Emphasis added by Susan Pai

ian-mstm

Shouldn't this read: "The maximum sentence for making a false statement *of material fact* in an immigration matter is 10 years in prison and a $250,000 fine"?

Ian

crg

The material fact aspect is written in to the adminitrative immigration fraud charge. We'd have to see which specific criminal statute they are charged under and how it's written. I think you're right though. They probably wouldn't have a case unless the false statement changed the person's eligibility for the benefit.

SusanPai

TEST FOR MATERIALITY

The test of materiality is not whether the false statements in fact influenced immigration officials to grant a visa, but whether the false statement had a natural tendency to influence the officials' decision. Materiality under 18 U.S.C. § 1001 requires that the misstatement be relevant to a fact that is a precondition to the grant of the particular benefit sought. Thus, while a misstatement that relates to an ancillary, non-determinative fact is not material, a misstatement that would have a natural tendency to affect a decision to issue a document is material. Excerpt from 3 Immigration Law Service 2d § 17:173 (2009) citing Robles v United States, 279 F2d 401 (1960, CA9 Ariz), cert den 365 US 836, 5 L Ed 2d 745, 81 S Ct 750, reh den 365 US 890, 6 L Ed 2d 201, 81 S Ct 1032; U.S. v. Dedhia, 1998 WL 19912 (6th Cir. 1998); United States v Naserkhaki, 722 F Supp 242 (1989, ED Va).

Emphasis added by Susan Pai

CONCEALMENT OF MATERIAL FACT

For purposes of the provision dealing with revocation of naturalization, proof of materiality of the misrepresentation or concealment establishes a rebuttable presumption that one who obtained citizenship in a proceeding where he or she made material misrepresentations was disqualified for naturalization, and the burden then shifts to the naturalized citizen to refute the presumption by showing, through a preponderance of the evidence, that the statutory requirement, as to which the misrepresentation had a natural tendency to produce a favorable decision, was in fact met. Excerpt from 3C Am. Jur. 2d Aliens and Citizens § 2498

Observation: The Supreme Court has raised the possibility that the test for materiality of misrepresentations in applications for citizenship may differ from that applicable to false statements in visa applications. A court of appeals has subsequently held that while misrepresentations to immigration officials when securing an immigrant visa must be material to form a basis for denaturalization, the government need not prove that the applicant would not have received a visa if he or she had not made the misrepresentation. The Supreme Court has also raised the possibility that misrepresentations or concealments made in applying for an immigrant visa may render the visa invalid, thereby rendering the person subject to denaturalization under the provision dealing with citizenship that was illegally procured because lawful residence is another requirement of naturalization.[/I] Excerpt from 3C Am. Jur. 2d Aliens and Citizens § 2498

Emphasis added by Susan Pai.

meauxna

Did you read the release? I quit reading that blog because they depress me too much, but this is a good one. I like the multiprong approach of getting them for mail fraud as well.
If you read any of the employment-based immigration boards, it's a disaster. These guys come over here with an H-1B and are given no projects, no paychecks.. what must they think of the US? It's just awful.

Bill_S

So you read immigrationportal too...

Unfortunate that so many get sucked into the H1 benching scam.

meauxna

heh, I actually don't visit that one regularly, but these guys are coming out of the woodwork now on all the boards.
It *is* unfortunate, and closer to trafficking than a 'job'.

crg

It's probably not all bencing. Some are complicit in the scheme and apply for an H1B as a computer programmer when their intention is to program information into the cash register at the corner gas station.

Folinskyinla

Hi:

The criminal fraud provisions are generally found in Title 18 of the US Code and generally do contain a "materiality" requirement.

I'm amused by DHS's very use of the word "fraud." A simple "misrepresentation" will often do the trick. Mr. Aytes notation shows how they conflate things. Quite often, misrepresentations are so blatant they fall right out of the definition of "fraud."

By the way, mere "concealment" deals with naturalization but does not affect immigration. It does affect naturalization. I note that the general Federal statute on misrepresentation, 18 USC 1001 includes 'concealment.'

Also note that Mr. Aytes notes the penalty for "conspiracy." This is one of the reasons I discourage any open discussion of the "visa waiver express" in the marriage forum other than to talk about all the bad things might happen.

crg

Exactly. I cringe when someone tells a poster to circumvent the immigration laws and they don't realize that they could get jammed up for encouraging someone to enter the US in violation of the law.

LPRs have been convicted and deported for helping illegal alien friends find an apartment or purchase a car as a favor. It's possible someone could get a knock at their door for encouraging the VWP express to the wrong person.