AILA Testimony on Nonimmigrant Visa Fraud

Testimony of
Mark A. Mancini, Esq.
Partner
Wasserman, Mancini & Chang

Before the
Committee of the Judiciary
Subcommittee on Immigration and Claims

On
Nonimmigrant Visa Fraud

May 5, 1999

Mr. Chairman, Representative Jackson-Lee, and distinguished members of the subcommittee, thank you for the opportunity to testify before you today. My name is Mark Mancini and I am an immigration attorney in private practice in Washington, D.C. with the firm of Wasserman, Mancini & Chang. I have more than 25 years of experience in the practice of immigration and nationality law and have served as an Adjunct Professor of law at George Washington University and Catholic University. I have also served as an Instructor at the Foreign Service Institute since 1980 and have authored several articles in publications on the topic of visa fraud.

In my remarks today, I will address three main topics on the issue of visa "fraud" in the nonimmigrant visa context. First, I will examine the larger picture of the nonimmigrant visa program, and emphasize that fraudulent applications are a very small portion of the total number of nonimmigrant visitors to the United States each year. Second, I will focus on the current system for investigating and determining "fraud" in visa applications and discuss why it doesn’t work well for several reasons, not the least of which is an uncertain definition of exactly what constitutes "fraud." Finally, I will make several recommendations for policy and programmatic changes that will help ensure that the investigation and prosecution of true "fraud" does not hamper the efficient and fair processing of the millions of bona fide applications for entry to the U.S. made each year.

Nonimmigrant Visas -- the Big Picture

First, let me take a minute to offer an overview of the current situation. The United States is the single most popular country for foreigners to visit in the world. The INS inspects approximately 300 to 350 million foreign nationals each year for admission to the United States. Several million more apply for visas at U.S. consular posts each year. The majority of these foreign nationals are temporary visitors to the United States – nonimmigrants – coming here for brief tourist trips, business meetings, and sometimes temporary work. These nonimmigrants are an enormous benefit to our national economy, both directly in the form of tourism and travel, and indirectly in their use of other U.S. goods and services. The vast majority of these visitors are bona fide nonimmigrants who abide by the terms of their visas and depart when required.

The State Department’s Consular Officers and the Immigration and Naturalization Service are charged with deciding who should be admitted to the United States. The goal of these officials should be to decide the applications of these millions of potential visitors with efficiency, effectiveness, and fairness. To do this, they must balance the dual functions of adjudication of legitimate applications for admission with enforcement of the laws against those who would try to circumvent the system.

We must look at the fraud issue through this perspective. Given the millions of applicants for visas and admission to the United States annually, the incidents of actual fraud are a tiny percentage of the total number of admissions, and the total number of applications. For example, INS data show that of the 300 million foreign nationals inspected for admission last year, 76,113 of them were removed under the so-called "expedited removal" process due to "fraud or misrepresentation." This represents only one-quarter of one percent of the total number of visitors to the United States. The INS and the State Department could provide more statistics on the total number of applications for visas or other benefits that are denied based on fraud or misrepresentation, but I am sure it would be a relatively small percentage of the total.

Therefore, we should not blow the problem of fraud out of proportion, and remember the need to balance the goals of efficient, effective and fair processing for the millions legitimate applications, with the need to investigate and pursue those small number of violators.

Why Doesn’t the Current System Work?

The current system for investigating and determining fraud, while laudable, has many significant problems that adversely affect the millions of bona fide nonimmigrants that apply each year. These problems include: (1) no clear definition of what constitutes fraud; (2) low-level administrative personnel determine complicated issues of fraud with no access to review or appeal; and (3) resources are directed toward broad-stroke fraud investigations that result in a relatively small number of actual fraud determinations but significant hardship and disruption to legitimate visa petitioners and applicants.

1) Fraud is not Easily Defined or Determined

As stated above, what constitutes "fraud" is not necessarily clear. There is no definition of "fraud" or "misrepresentation" in the Immigration and Nationality Act. Those terms have been defined over the years through various court and administrative decisions, the leading administrative case being Matter of S&BC, 9 I&N Dec. 436 (1960), which determined that fraud is to be defined "in the commonly accepted legal sense".

Most discussions focus on the most egregious and obvious cases of fraud – those that are objectively determinable, such as fake documents and false answers to immigration or consular officers on an application form. That type of fraud must be investigated and, if appropriate, prosecuted, and is a relatively easy matter to be adjudicated.

But there is also a subjective fraud, that is more difficult to ascertain. This type of fraud is based on a divination by the adjudicator of the subjective "intent" of the applicant, in an attempt to decide whether, at some future time, he or she may decide to pursue a different course of action than that outlined in the visa application. Unfortunately, a finding of "fraud" in this type of case carries the same perpetual ineligibility as the objective kind.

And the consequences of a determination of fraud or misrepresentation can be lifelong for a foreign visitor. First are the immigration consequences – an individual who has been determined to have committed "fraud" or a "misrepresentation" is barred for life from entering the United States, unless granted one of the very limited discretionary waivers available. In addition, there are criminal consequences as well – potential prosecution for perjury or under the False Statements Act, as well as new criminal penalties imposed by the 1996 Immigration Reform Act for preparing a "falsely made" document, and other criminal penalties for attempting to enter the United States by willful misrepresentation. Individuals removed from the United States for fraud or misrepresentation under the "expedited removal" provision find themselves subject to the same penalties.

Difficult Legal Determinations of Fraud are Made by Low-level Officers

Given the complexity just to determine what fraud is, and the significant consequences to an applicant of such a determination, it is imperative that a judgement not be entered lightly, or without significant due process protections. Some of these protections are missing from our current immigration system, especially when fraud determinations can be made by low-level officers. Further, as noted earlier, in most cases these determinations are not reviewable or appealable, even to an administrative law judge.

In the past, cases relating to fraud or misrepresentation were referred to Immigration Judges to weigh the factors and make a determination. However, since the 1996 Immigration Reform Act, the authority to make determinations of fraud has been delegated to immigration inspectors at the ports of entry under the so-called "expedited removal" process. Similarly, at the consular posts, consular officers are required to make significant decisions about an applicant’s credibility in the course of a few minutes of discussion.

However, under current immigration law, there often is no recourse for appeal or review of these serious decisions. At consular posts, the Advisory Opinions office of the State Department will only overrule a consular officer’s decision if it represents an erroneous conclusion of law. However, the AO will not overrule a decision based on the facts of a particular situation (which involves most determinations of "subjective" fraud). Consular decisions are largely non-reviewable by any court. (However, Representative Barney Frank for several years has proposed legislation to create an appeals board for consular decisions.)

With regard to INS fraud determinations, denial of certain petitions are appealable to the Administrative Appeals Office of the INS, and subsequently to a federal district court, although often the information on which the INS denies the petition is not made available to the petitioner to rebut during an appeal. Denials of admission to the United States under expedited removal are specifically exempt from any type of administrative or judicial review of the determinations by immigration inspectors. The only review allowable is by an immediate supervisor, who often reviews only the record prepared by the inspector. Thus, individuals who find themselves banished for five years under expedited removal procedures for erroneous applications of the law have no real way to appeal or reopen their case.

This situation flies in the face of our judicial tradition of due process, and, to many—both foreign nationals and U.S. citizens, can smack of arbitrary decision-making. Allowing for review of these cases before a judge, with an opportunity to present countervailing evidence, would do much to add credence to the system.

Broad-Stroke Investigations Do Not Result in Efficient Processing

While the INS and the State Department need to ensure the integrity of our immigration system by finding and investigating fraud, the agencies are also responsible for efficient, effective and fair decisions on the vast majority of applications that are bona fide. In addition, the agencies must bear in mind that many foreign nationals who come to them to request immigration benefits do not have extensive knowledge of the immigration laws and regulations. Thus, through ignorance, and sometimes misinformation provided by our own government agencies, they may make mistakes in their applications. Such inadvertent errors should be treated with fairness, and the individuals not subjected to harsh punishments.

The problem is that because of the overwhelming number of cases to decide, and because both INS and consular officers have experienced egregious cases of fraud, they seem to have developed a suspicious enforcement mentality that tends to presume everyone "guilty" at first glance. Add to this a system that promotes those in the enforcement branches far more frequently than adjudicators, and you find that the provision of "services" to the vast majority of qualified individuals becomes secondary to the "rooting" out of the bad apples.

These problems result in many bona fide and legitimate applicants getting caught in the "net" of investigation by the INS, or labeled with "fraud" by a consular or inspection officer. For example, the initial investigations of the Chinese and Russian L-1 fraud cases led INS offices around the country to refer all new office L-1 cases with Russian or Chinese beneficiaries for investigation, even if there were no other indicators of fraud present. This resulted in many legitimate businesses suffering serious losses and delays.

With regard to INS inspectors, a lawsuit has been filed in Federal District court. This lawsuit challenges the authority of the INS to institute expedited removal proceedings, and make "fraud" determinations, against individuals with valid documents, based on an immigration inspectors "belief" that the individual’s intent was other than that indicated by the visa, with no objective documentary evidence to support this decision. Included among the plaintiffs are U.S. citizens who were erroneously declared to be aliens intending to immigrate, business people who came regularly to the United States for meetings who were accused of "working" in the U.S., and the spouse of a U.S. citizen who lived abroad but occasionally visited her husband in the United States with her U.S. citizen children.

As for consular posts, I had a case where a consular officer returned an approved non-immigrant visa petition to the INS for fraud investigation based on the officer’s personal opinion that the job in question, managing a fairly substantial retail grocery operation of about $2 million in gross annual sales – did not require a bachelor’s degree in business administration, even though the INS had determined it did. The petition was revalidated by the INS, but only after a year of wrangling back and forth.

Many potential foreign visitors are discouraged from even applying for visas at consular posts, because of the belief that entire nationalities are somehow more subject to scrutiny, and are never able to overcome the presumption of immigrant "intent." Information has come to light from a recent Federal Court Case involving a retired Foreign Service Officer that short-hand racial and stereotypical "profiling" were regularly used to classify visa applicants as credible or not, based on such characteristics as appearance. – the now-famous "Looks Poor" test.

While we would like to believe that these cases represent the exceptions, rather than the rule, recent experiences of foreign nationals and immigration attorneys like myself lead us to the conclusion that these types of circumstances are more frequent than ever. In the zeal to weed out those who would abuse our system, we have made it more difficult for those we wish to admit to get through the door.

How the System Can be Improved

Fraud and misrepresentation are real issues that must be addressed in order to maintain the integrity of our immigration system. However, these issues must be addressed in proportion to the scope of the problem. We must balance the interests of enforcement and services in order to achieve efficiency, effectiveness and fairness.

This balance can be achieved in several ways.

Review of Decisions. We must allow for review of decisions of fraud and misrepresentation to prevent erroneous application of these labels, and the attendant serious consequences. The Supreme Court has stated that the standard for proving fraud must "clear, precise and indubitable" evidence. (Farrar v. Churchill, 135 U.S. 609, 615 (1890)). Given this burden of proof, decisions should be reviewable by an experienced legal adjudicator. Expedited removal decisions should be allowed to be appealed to an immigration judge – or in the least, limit the exercise of this function to only those cases of clear, objective fraud, such as presentation of counterfeit documents or documented willful misrepresentations. Those cases that involve only the opinion of the inspecting officer as to the applicant’s "intent" should be decided by an immigration judge. The should be a process for review or appeal of consular decisions, such as that proposed by Representative Frank in H.R. 1156, the Consular Review Act of 1999.

Inform Applicants of Investigations. Investigators should always take the opportunity to communicate with petitioners and applicants in investigations, in addition to all other outside sources, in an effort to assist in the investigatory process and allow for rebuttal of evidence. The most frustrating part of these investigations for applicants and petitioners is the inability to get any information from the INS or the consular post as to the status of the investigation, the reasons for the investigation, or any idea of how long it will take to be resolved. Since the majority of cases usually turn out to be bona fide, communication with the applicant or petitioner, who may be able to provide additional documentation to clear up the matter, should be the norm. At the very least, investigators should let the applicants know of the reasons for the investigation, and keep them informed as to the progress.

Focus on MOST LIKELY abusers. Agencies should focus their limited resources on investigating only the MOST likely targets. Wide-net investigations are a waste of resources and take away from the necessary adjudication functions of the agencies. While "profiles" of certain types of cases may be a reasonable means of identifying cases that may need further scrutiny, referral for a full-fledged investigation should only be undertaken where there are multiple indicators of possible fraud in a case. This is especially true since most cases turn out to be bona fide.

In many ways, the INS is facing the same issues today that the Internal Revenue Service did a few years ago – a reputation for being belligerent enforcers of the law, to the exclusion of providing necessary services to their customers. Congress mandated the IRS to change its outlook, and the results have been positive. It is time that we recognize that all applicants for admission to this country, and their U.S. contacts relatives, and business associates, are customers of our immigration system and deserve to be treated with respect.

Thank you for the opportunity to speak today, and I am pleased to answer any questions you may have.