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Green and Spiegel - An Immigration Law Firm - United States
Oct 15, 2019

Government Evolves Too and Increased Enforcement Actions Point to Data Access, Stronger Analysis, and Inter-Agency Cooperation

David Spaulding

Erika Paola Intriago knew a thing or two about immigration and saw an opportunity to earn a living providing services to immigrants in Florida. She started a company to assist in filling out and filing immigration papers but that soon morphed into a fraud scheme in which she claimed to be an attorney. It turns out that immigration is actually pretty complicated and, as the demands on her services grew, the fraud expanded. By the time she was indicted, she was creating fraudulent correspondence from the government to convince her clients she had filed papers for them and intimidating victims with threats to have them deported.

Ms. Intriago is just one of many immigration fraud subjects snagged by federal agencies this year: A former CEO of Washington state Information Technology companies was sentenced to more than seven years for visa frauds and a management consulting firm paid $2.5 million USD to settle immigration fraud and related charges. There was the case of a California businessman who faces 10 years in prison and a $250,000 fine for H1B visa fraud, a Chinese national’s scheme to get people into the US through fraud that set her up for decades in jail, and a college administrator who is being prosecuted for student visa fraud

These aren’t the kind of stories that make national news. Even agency news bulletins select which stories will take up digital space but fraud schemes are being more often indicted and more frequently prosecuted. We have moved far past the point that they can be considered an anomaly. This is the new normal and we need to incorporate the lessons from resolved cases into our management strategies. Firms with broader institutional immigration knowledge may be in a better place to do so than others.

When I began my immigration officer career in 1995, many of the databases through which we tracked casework and files were decades old. Physical files were everything. Literally everything relevant to a case was contained in a manila folder with its Alien Registration Number (ARN) or Receipt Number printed on the tab. It was not a perfect system. Duplicate files existed, files were missing, documentation was missing from files, duplicates of everything in a filing would tear the bindings; but the scope of the problem, the sheer volume of records, made investment in fixing things a daunting task, one Congress was disinclined to fund. Immigration and Naturalization Services (INS) Examinations and Inspections were light years behind private company record-keeping.

Things weren’t better over in INS Investigations. In many ways, having parallel Investigation File and Working File systems to the ARNs made things worse. (No agent was going to place active investigation materials into an ARN and risk their discovery through a Freedom of Information Act request.) Investigations’ physical record keeping was no better than in other INS branches and their electronic systems were no better either. Throughout INS, there was a distinct lack of technology investment and that hampered services to filers, examinations, inspections, and investigations.

The terrorist attacks on September 11, 2001 changed everything.

Congress invested in technology, authorized more people, mandated backlog reduction, and paid for the overtime to make all of that work. Agencies are justifiably proud of their accomplishments between 2001 and 2016. That fifteen years made immigration services dramatically better. More consistent results, better quality decisions, and better record-keeping improved immigration as a “product” but something was happening below that surface that is nearly invisible to stakeholders outside of government: agency cooperation and access to information was growing.

I became an Office of Fraud Detection and National Security (FDNS) investigator in 2007 and an FDNS supervisor and manager in 2012. My tenure spanned the growth of that directorate and its incorporation into the fabric of both United States Citizenship and Immigration Services (USCIS) and partner agencies through task forces. By the time I left in 2019, we had FDNS officers in every USCIS office in the country and on Document and Benefit Fraud Task Forces (DBFTF) and Joint Terrorism Task Forces (JTTF) throughout the nation. 

As a practical matter, this created a pathway for data and expertise to move freely between USCIS and our “sister” agencies: Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE). The investment in technology let data holders “mine” it effectively while having Subject Matter Experts from different agencies working on task forces acts as a sort of “leavening agent,” inspiring innovation and creating connections between knowledge disciplines.

For example, in 2007 I had an investigation into the fraudulent non-immigrant visa filings of a nationally known immigration attorney. The investigation required rounds of ordering files, physically reviewing each file with an analyst to look for commonalities, letting those discoveries drive another order of files, and so on. In the end, I had more than 500 files in my office, each file “tabbed” with sticky notes to show how the filings related and established fraud. However, during my last year of service (2018-2019), the Document and Benefit Fraud Task forces had hundreds of visa fraud cases like that open across the country. Analysts at USCIS’ National Benefits Center simultaneously work them with field offices in California, Texas, and New York, while ICE agents are in the field with FDNS investigators, all sharing information in nearly real-time.

Among the results of this investment into the immigration agencies is that the level of data collection, analysis, cooperation, and expertise among investigators has never been higher. Officers and analysts are better trained, better led, and better equipped than we could have imagined possible back in 1995. That is driving the indictment boom that we are seeing.  However smart those engaged in fraud are, the odds are good that someone equally smart and driven is sitting behind a desk in California, Missouri, Nebraska, Texas, Vermont, or Virginia making sense of the fraud. Getting away with a complex fraud scheme means no one noticing in any of the half dozen or more offices that will see the filings during their life cycles.

For legitimate business people, this should be good news. Fewer visas diverted from a legitimate purpose helps corporations get the resources needed to be successful. For legitimate attorneys, taking the Erika Paola Intriagos of the world out of the mix gives the communities we serve better and more consistent results. Across the board, less fraud is good for legitimate actors. 

Unfortunately, better data collection and analysis also means that unintentional errors are noticed more readily and the immigration filings with USCIS are more often shifted out of the normal stream of adjudications. Being able to find and easily manage records is usually good for the subject of that record but it also means that mistakes and falsehoods are preserved and documented. Agency cooperation and coordination is good for victims of crimes but consistent policy and procedural mistakes won’t be overlooked or ignored.

The short of it is that businesses and representatives have to step up our game. We have to be more certain, more careful, and more exact. 

Permit me to provide some examples:

Example 1: Suppose Psychologist X has among her clients immigrants who are seeking status in the United States as abused spouses. Psychologist X has never taken especially good notes and this has not greatly hindered her service to her clients but the documentation for an abused spouse claim is very specific and, since she has had a client who got their status through that documentation, she has developed the habit of copying language from the one that worked into the others. Same phrasing, same diagnoses, same words, all of these things are, to Psychologist X, ancillary to the real services she provides to clients who she believes have been abused but, to the government, they will likely look like fraud. Her clients appear to her to be eligible and there is no intent to defraud but Psychologist X is unintentionally setting her clients up for a delayed process which might lead to denials.

Example 2: Company A regularly contracts with Company B for IT services. Company A does not wish to be involved in the hiring or management of IT workers and leaves this up to Company B. Company B has successfully brought several hundred H1B non-immigrant workers to the US to provide those services and has three “boilerplate” job descriptions that it uses for those filings. Company B’s attorney has been working with them for so long that the H1B filing rate is discounted. The attorney delegates this work to the newest attorneys because “all they have to do is follow the boilerplate filings.” An FDNS inspector shows up at Company A and interviews two of Company B’s employees. What those H1B employees do differs greatly from what the filings say they will do. The pay is off, the job description is off, the contract is off and it looks to USCIS like Company B is engaged in fraud. Since all of Company B’s filings go through the same attorney, it looks like the attorney is involved in fraud. Suddenly, Company B isn’t getting approvals and their employees are being jammed up overseas.

When the government’s record-keeping was poor and access to data limited and cumbersome to analyze, errors affected only the filing in front of the officer reviewing it. Now that the government has improved operations, errors have far greater impact on filers. Innocent errors can lead to significant disruptions and costly remedies. Intentional acts can lead to denials, loss of access to resources, administrative penalties, and even prosecutions.

The good news is that review of the policies, procedures, and instruments we use can clean them up. What it usually takes is an honest, unbiased assessment and there is nothing wrong with reaching outside of our regular relationships to get that review. Perhaps the best way to look at the problem is to ask “if a government inspector or investigator were to show up on a random work day” would I be worried? If the answer is “yes,” perhaps it is time to call someone in for a review.

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