INS Advises on “Falsely Made Applications”
To: All Regional Directors
All District Directors (Including Foreign)
All Officers in Charge (Including Foreign)
All Port Directors
All Service Center Directors
All Training Academies (Glynco and Artesia)
All Regional Counsels
All Asylum Directors
From: Office of Program (HQPGM)
Subject: Criminal Penalties for Preparation of Falsely Made Applications for Immigration Benefits Added by Sections 213 & 214 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA)
This memorandum provides guidance to the field for implementing sections 274C(e)(1) & (2) of the Immigration and Nationality Act (the Act) as amended by section 213 of IIRAIRA and section 1546(a) of Title 18, United States Code, as amended by section 214 of IIRAIRA.
I. Section 274C(e)(1)
Section 274C(e)(1) of the Act makes it unlawful for any individual to knowingly and willfully fail to disclose, conceal or cover up the fact that he or she has, on behalf of any person and for a fee or other remuneration, prepared or assisted in preparing an application for immigration benefits which was falsely made. An individual convicted under this section may be imprisoned for not more than five years, fined in accordance with Title 18, United States Code, or both. Before seeking prosecution of a criminal case pursuant to section 274C(e)(1), Service employees must ensure that sufficient evidence has been gathered to prove each of the following elements:
A. Knowing and Willful Concealment, Failure to Disclose, or Coverup
There must be evidence that the preparer failed to disclose, concealed from the government, or covered up the fact that he or she has prepared an application for immigration benefits which was falsely made. Failure of a preparer to identify oneself adequately in a section of an immigration form calling for that information combined with the falsity of the form (see Section E below), constitutes prima facie evidence of a knowing and willful concealment.
B. For a Fee or Other Remuneration
There must be evidence that the preparer received a fee or other remuneration in exchange for the assistance with preparation of the immigration benefit application. A person, such as a designated school official or an employee of a volunteer organization or other such entity who does not receive a fee or remuneration for assistance provided, may not be prosecuted under this section of law.
C. Preparation or Assistance in Preparation
There must be evidence that the individual participated in the preparation of the immigration benefit application form. The term "preparation" should be construed broadly to include actually filling-out the form itself; completing other documents in support of the form (with knowledge at the time of completion that the information in the document is false and that the document will be attached to the form); instructing another about filling-out a form (with knowledge that the information entered on the form will be falsely made). See 8 CFR section 1.1(k). The act of "preparation" may be related to a document other than a specific immigration benefit application form provided that the document was submitted to the government in support of a specific immigration benefit application form and the preparer was aware that the document would be submitted in support of the immigration benefit application form at the time that the document was prepared.
For purposes of this section, it is irrelevant whether the preparer is a lawyer or other representative recognized and accredited in accordance with 8 CFR section 292. However, "preparation" does not include giving general advice about immigration forms or available immigration benefits.
D. Application for Immigration Benefits
There must be evidence that the act of preparation was directly or indirectly related to a specific immigration benefit application form. This includes all benefit forms prescribed by the Service and may in some instances include forms prescribed by the Executive Office for Immigration Review, the United States Department of State, the United States Information Agency, or the United States Department of Labor (provided that the form relates to any matter within the jurisdiction of the Service.)
E. Falsely Made
There must be evidence that the application for an immigration benefit was falsely made. By statute, "falsely made" means an application that "contains a false, fictitious, or fraudulent statement or material representation, or has no basis in law or fact, or otherwise fails to state a fact which is material to the purpose for which it was submitted." Section 274C(f) of the Act. A preparer does not violate section 274C(e)(1) if he or she does not know that the application is falsely made.
II. Section 274C(e)(2)
Section 274C(e)(2) of the Act does not serve as a higher penalty for the conviction of a second section 274C(e)(1) offense, but rather penalizes any knowing and willful preparation or assistance with preparation by an individual who has been previously convicted of a violation of section 274C(e)(1) of an application for an immigration benefit. For purposes of a section 274C(e)(2) conviction, it is not necessary to demonstrate that there was a fee or other remuneration charged for the preparation, that there was nondisclosure of the preparation, or that the application was falsely made. A conviction under this section may result in imprisonment for not more than 15 years, a fine in accordance with Title 18, United States Code, or both. When seeking prosecution of a criminal case pursuant to section 274C(e)(2), agents must ensure that sufficient evidence has been gathered to prove each of the following elements:
A. Prior Section 274C(e)(1) Conviction
Any individual charged with violation of section 274C(e)(2) must have previously been convicted of a violation of section 274C(e)(1).
B. Preparation or Assistance in Preparation of an Application for an Immigration Benefit
See Part I, Sections C and D above. The application for immigration benefits does not have to be "within the jurisdiction of the Service" to support a section 274C(e)(2) conviction (for example, a visa application would qualify).
III. Section 1546(a) of Title 18, United States Code
Section 1546(a) of Title 18, United States Code, establishes criminal penalties for fraud and misuses of visas, permits and other immigration documents. Pursuant to section 214 of IIRAIRA, the fourth paragraph of section 1546(a) of Title 18, United States Code, was amended by striking "containing any such false statement" and inserting "which contains any such false statement or which fails to contain any reasonable basis in law or fact." While this amendment does not constitute a major amendment of the preexisting statute, Service employees should be aware of this amendment as it may increase the feasibility of a criminal prosecution under this section of law. Should you have any questions regarding the interpretation or implementation of these provisions, please contact your district counsel.
Paul W. Virtue
Acting Executive Associate Commissioner