- Numerous components within DHS, DOL, DOJ, and the State Department have a role to play in ensuring the integrity of the temporary worker visa program.
- Components within those departments, and others, collaborate through the Document and Benefit Fraud Task Forces (DBFTFs) to address immigration fraud.
- Those components, however, have a number of competing missions, and only limited resources available to pursue unscrupulous employers who exploit the nonimmigrant worker visa program.
- There are relatively few prosecutions of employers for fraud in connection with temporary worker visas.
In a recent post, I analyzed presumptive Democratic presidential candidate Joe Biden's promises to flood the American workforce, 13.5 percent of whom filed for unemployment benefits in the last month, with foreign labor. There was one position of the candidate's that I left out, relating to "reforms" of the temporary worker program. The former vice president's ability to deliver on those reforms is dependent on the resources the federal government has to enforce that program. It turns out, there aren't nearly enough.
Specifically, the former vice president vows "to pass legislation that":
Reforms the visa program for temporary workers in select industries. A collection of industries depend on seasonal workers, or workers who only seek to be in the U.S. for a short time. The current system for accommodating these workers is cumbersome, bureaucratic, and inflexible — driving up incentives to circumvent the system by hiring undocumented laborers and allowing the employers who control the visa to pay artificially low wages. Biden will work with Congress to reform the current system of temporary work visas to allow workers in these select industries to switch jobs, while certifying the labor market's need for foreign workers. Employers should be able to supply data showing a lack of labor availability and the harm that would result if temporary workers were unavailable. This flexibility, coupled with strong safeguards that require employers to pay a fair calculation of the prevailing wage and ensure the right of all workers to join a union and exercise their labor rights, will help meet the needs of domestic employers, sustain higher wages for American workers and foreign workers alike, incentivize workers and employers to operate within legal channels, prevent exploitation of temporary workers, and boost local economies. [Emphasis added.]
There is a lot to unpack here.
First, regardless of how "cumbersome, bureaucratic, and inflexible" one may consider the current system for "accommodating" temporary workers, the primary reason that unscrupulous employers hire illegal aliens in lieu of U.S. workers (citizens, nationals, and legal immigrants) is because those illegal aliens are (1) willing to work for lower wages; (2) willing in many if not all cases to work under conditions that skirt our nation's strong occupational safety and health rules (not to mention its antidiscrimination provisions); and (3) available.
If you remove the third factor, then the problem goes away. The former vice president, however, also wants an amnesty of the 11 million-plus aliens currently unlawfully present in the United States and a moratorium on removals for his first 100 days in office (and to only remove "felons" thereafter, with a threat to fire ICE officers who violate his diktats), so their presence seems to be baked into his calculus.
Second, I certainly have no problems with reforming the current visa program for temporary workers generally (let alone "in select industries"), but I have a feeling that my ideas for reform and his are very different.
Third, as my recent Backgrounder on "The Protecting U.S. Workers Initiative" shows, there are employers who are able to "supply data showing a lack of labor availability" where, in fact, none exists. Protections against abuse to prevent employers from gaming this system exist, but the former vice president should be aware of the limitations on government resources to provide "strong safeguards that require employers to pay a fair calculation of the prevailing wage."
For example, the Fraud Detection and National Security Directorate (FDNS) in U.S. Citizenship and Immigration Services (USCIS) is responsible for investigating benefits fraud, and plays a major role in addressing national security and public safety concerns related to aliens seeking benefits or legally in the United States. All told, as of May 1, 2019, FDNS had 1,347 employees, of whom 247 were at agency headquarters, 98 were at the asylum offices, 34 were at the Refugee, Asylum, and International Operations Directorate, 736 were in the Field Operations Directorate, and 232 were in the Service Center Operations Directorate.
In an October 2017 report, the Inspector General for the Department of Homeland Security reported that there were only about 600 Immigration Officers (IO) at FDNS. Those IOs "conduct site visits to verify information and identify fraud issues pertaining to various visa classifications."
To ensure compliance within the temporary worker program, FDNS runs the Targeted Site Visit and Verification Program ("TSVVP", which originally focused on H-1B fraud and abuse, and now includes L-1A, L-1B, E-2, H-2B, and CW-1 pilots) and the Administrative Site Visit and Verification Program ("ASVVP", a compliance review for the Religious Worker, H-1B, L-1, and EB-5 immigrant investor programs). Of the 600 IOs in FDNS in October 2017, 80 were assigned to the ASVVP, but I have been informed that FDNS has now largely switched over to targeted enforcement, as the statistics below suggest.
USCIS has explained:
[FDNS] conducts compliance reviews on ... petitions after they have been approved.
Compliant means that the petitioner and the beneficiary are not in violation of the terms of the petition. Noncompliant means that the petitioner is in violation of the terms of the petition or that the beneficiary is in violation of the terms of the visa classification. FDNS may pursue a noncompliant case through an administrative investigation, or, if criminal activity or national security risks are suspected, refer the case to ICE or another government agency.
Those compliance reviews each focus on one petition and beneficiary.
In FY 2019, the agency completed 4,031 compliance reviews under the ASVVP program. An unknown proportion of those reviews originated with the 2,751 referrals it had received from adjudications officers within USCIS (not all referrals result in an investigation). Of those reviews, about 591 were found to be noncompliant.
In addition, last year, USCIS conducted 8,512 targeted worksite visits under the TSVVP, some proportion of which originated in some 9,992 referrals from USCIS adjudication officers. Of those TSVVP reviews, some 324 had a finding of fraud, while 1,049 others were found to be noncompliant.
These are impressive numbers, and yeoman work. That said, however, as my colleague David North reported in October, there were 389,386 approvals (of all kinds) in just the H-1B program in FY 2019 alone.
And, as the Center explained in May 2019, FDNS: "is a group of officers who gather evidence, investigate immigration crimes, write up the findings, and then plead with [U.S. Immigration and Customs Enforcement (ICE)] to advance cases to the U.S. Attorney to seek prosecution against the perpetrators ... . In the meantime, ICE is pretty busy with its own workload."
The component of ICE with the authority to perform those tasks is Homeland Security Investigations (HSI). Investigations of "[i]mmigration, document and benefit fraud" is in fact one of its 10 listed missions (there are apparently others that aren't listed), but the list of areas within HSI's authority also includes: "[f]inancial crimes, money laundering and bulk cash smuggling", "[c]ommercial fraud and intellectual property theft", "[c]ybercrimes", "[h]uman rights violations", [h]uman smuggling and trafficking", "[n]arcotics and weapons smuggling/trafficking", and "[t]ransnational gang activity".
How high a priority can anyone really expect a single case of, say, H-2B fraud, to be for a component with such a wide range of lofty responsibilities? As the anonymous "active-duty Department of Homeland Security [DHS] officer" who was the source for the aforementioned May 2019 report noted:
HSI spends its time going after violators of U.S. customs laws, including human traffickers, child pornographers, drug cartel leaders, and manufacturers of counterfeit brand-name goods, not immigration fraud.
...
There is currently no federal agency with arrest authority dedicated to investigating and seeking prosecution for violating federal immigration laws. The agency responsible for investigating immigration crimes such as marriage fraud, employment fraud, asylum fraud, and investor visa fraud changed its mission in 2010 and left those "not so sexy" crimes behind.
In fact, in a June 2018 letter to then-DHS Secretary Kirstjen Nielsen, 19 HSI special agents in charge asked that the component be allowed to leave ICE. That letter stated, in part:
HSI focuses on the TCO's that import high levels of narcotics, including the extraordinary amounts of opioids flooding into the U.S.; utilizes its authorities to combat trade fraud; tracks and arrests those that seek to exploit children; identifies and seizes the illicit funds of traffickers; and detects and arrests those who exploit other humans via trafficking and/or smuggling.
Markedly absent from that list was the investigation of immigration benefits fraud. That said, however, I am aware of the fact that, notwithstanding the number of other responsibilities on their plates, there are a number of HSI agents who are interested in prosecuting immigration fraud, but they are dependent on the Department of Justice (DOJ) to prosecute those cases. I will discuss that department below.
Before I get there, however, there are other executive-branch components that play a role in ensuring compliance with the temporary worker program, often in cooperation with one another as well as with USCIS and HSI.
The Wage and Hour Division (WHD) at the Department of Labor (DOL) has responsibility for enforcing labor standards protections for temporary nonimmigrant workers admitted under the H-1B, H-1C (nurses), H-2B, H-2A, and D-1 (crewmember) programs. It also "sets standards for migrant and seasonal agricultural workers regarding wages, housing, and transportation."
WHD also, however, has responsibility for a raft of other laws, including the Fair Labor Standards Act (which includes "minimum wage, overtime pay, child labor, recordkeeping, and special minimum wage standards applicable to most private and public employees"), the Davis-Bacon Act (which "cover[s] workers on Federal construction contracts"), and the Family and Medical Leave Act (which "entitles eligible employees to 12 weeks of unpaid, job-protected leave for certain family and medical reasons").
In its 2021 budget request, DOL stated that there were 1,596 full-time equivalents ("FTE", one FTE being equivalent to the output of one full-time worker) at WHD, and seeks funding for 1,601.
There may also be contractors who do not appear in the budget at WHD, but given the vast range of laws that division is required to enforce, there are nowhere near enough to police labor standards for hundreds of thousands of temporary nonimmigrant workers.
Then, there is the Office of Foreign Labor Certification (OFLC) in DOL's Employment and Training Administration. OFLC has authority to certify employers seeking certain employment-based visas, including immigrant labor visas, as well as H-1B, H-2A, and H-2B nonimmigrant visas.
A recent Government Accountability Office (GAO) report on H-2B visas noted that OFLC "conducts recordkeeping audits of adjudicated" temporary labor certifications (TLCs) "to assess employers' compliance with the terms and conditions attested to in their applications," as well as to fulfill DOL's "statutory mandate to certify applications only where unemployed U.S. workers capable of performing the needed work cannot be found." Violations can result in penalties ranging from a warning letter to debarment from the H-2B program.
GAO found, however, that during FY 2018, OFLC "initiated 493 audits of H-2B employers", a figure that represented just 7 percent of all employers that had received approved TLCs that year. Most of those audits were at random. GAO reported that OFLC found 35 percent to be in compliance, while issuing a warning to 61 percent (307) of those employers. Only three were debarred.
It concluded "DOL has not taken a risk-based approach to selecting employers to audit." That said, GAO stated:
Officials said that the system currently used to track audits captures data on audit workloads and final audit outcomes, but the agency has a plan to develop a new system that would also track the individual violations found in audits and the industry and job classification associated with the employer. With this capacity, officials said they could take a more risk based approach to selecting employers for audits, based on trends in violations by industry or job classification. However, officials said that the further development and implementation of this tracking system is currently on hold due to resource constraints with no firm date for moving forward.
What resources are available? The FY 2021 DOL Budget Summary Tables show 180 FTE at OFLC (144 appropriated salaries and expenses and 36 from H-1B fees). Again, OFLC may also employ contractors, but respectfully, that raises the question whether this critical duty should be left to contract employees. OFLC is requesting a whopping 10 additional FTE in FY 2021.
GAO also noted that DOL's Office of Inspector General (DOL OIG) can conduct investigations into H-2B applications were potential fraud is suspected.
Under the "Significant Concerns" section in its latest Semiannual Report to Congress, DOL OIG noted:
The Department's administration of the [federal labor certifications (FLC)] programs under current laws has been an ongoing concern of the OIG for decades. OIG investigations have shown these visa programs, in particular the H-1B program, to be susceptible to significant fraud and abuse, often by dishonest immigration agents, attorneys, labor brokers, employers, and organized criminal enterprises.
It explained:
DOL is statutorily required to certify an H-1B application unless it determines that the application is "incomplete or obviously inaccurate." Given this fact, it is not surprising that OIG investigations have revealed schemes in which fictitious companies or dishonest businesses seeking to acquire foreign workers filed fraudulent applications with DOL. Our investigations have also uncovered numerous instances of unscrupulous employers' misusing FLC programs to engage in human trafficking, with victims often exploited for economic gain.
As an aside, a January 2019 report from DOL OIG stated that it had "a long-standing legislative recommendation and concern with DOL's limited ability to verify the accuracy of information provided on labor condition applications." That report identified potential vulnerabilities in the H-2B certification forms and recommended solutions to address those vulnerabilities; however, it is not clear whether those proposals have been implemented.
In DOL's FY 2021 budget request, OIG requests 349 FTE.
Then, there is the Bureau of Diplomatic Security (DS), the security and law-enforcement component of the Department of State (DOS). Needless to say, DOS itself plays a key role in the visa process, because visas are issued abroad by its Bureau of Consular Affairs (CS; the Congressional Research Service provided an exhaustive analysis of the CS review process in 2015).
While DS has responsibility for providing protection for U.S. diplomats and diplomatic facilities abroad, domestically, DS, in partnership with its local, federal, and international counterparts, also conducts visa fraud investigations from its 29 offices in the United States.
Assistant regional security officer-investigators at DS focus on investigations into passport and visa fraud at consular posts with high levels of fraud. Here in the United States, DS special agents and criminal investigators conduct criminal investigations into visa fraud.
The Foreign Affairs Manual (FAM), at 12 FAM 224.2-3(j) and (k), explains the interplay between DS and its domestic partners in this effort:
DS may conduct its own investigation of immigration-related facts if pertinent to a DS investigation of illegal visa issuance or use. Such investigations may be done jointly with ICE or independently. These investigations frequently deal with verification of U.S.-based organizations, schools, businesses, persons, etc.
Once a domestic case agent determines reasonable grounds exist that a Federal crime has been committed, sufficient evidence then exists to warrant prosecution. The information will be promptly brought to the attention a DS special agent for a basic determination. The facts and circumstances of the case will them be shared with the appropriate U.S. attorney. The U.S. attorney or his/her designee assistant U.S. attorney (AUSA) may request additional investigation by the case agent prior to accepting or declining prosecution of the case. Special agents will respond to these requests by conducting further investigations and will continue to work with the AUSA throughout the trial of the case in Federal court.
Subsection (h) therein details the authority of special agents in carrying out domestic investigations:
Domestically, special agents are authorized to:
(1) Interview sources;
(2) Gather evidence;
(3) Make arrests;
(4) Issue warrants; and
(5) Serve as liaison with other agencies, as appropriate.
DS has 2,100 special agents spread around the globe, as well as more than 800 civil servants. As of FY 2017, 95 of those civil servants were criminal investigators working domestically on visa and passport fraud.
The components listed above often work in concert. Specifically, there are 36 Document and Benefit Fraud Task Forces (DBFTFs) located throughout the United States and its territories. The DBFTFs, which are overseen by ICE HSI's Identity and Benefit Fraud Unit, bring together USCIS, U.S. Customs and Border Protection, DOL, and DOS (as well as other law-enforcement partners) to respond to fraudulent document and immigration-benefit fraud schemes.
For example, in September, DHS announced that following an investigation by HSI and DS through the Dallas DBFTF:
An Indian management consulting firm based in Chicago agreed in August to a $2.5 million global settlement for visa fraud and inducing aliens to enter and remain in the U.S.
...
Mu Sigma — a large, advanced analytics service provider headquartered in Chicago, Illinois, with its main delivery center in Bangalore, India — was illegally circumventing U.S. government H-1B visa regulations by actively employing B1 visitor visa holders under contract within the U.S. In addition, the company's invitation letters for the B1 visa holders misrepresented the nature of the B1 visitors' intended business. Furthermore, company officials illegally instructed potential B1 business visitors and company handlers how to avoid detection by U.S. authorities.
In June, USCIS announced that one "Marvin Mushia Smith" received 10 months' imprisonment for visa fraud after a multi-year investigation by the Orlando DBFTF. That investigation revealed "numerous requests for abnormal numbers of alleged 'required'" H-2Bs:
In his fraudulent submissions to DOL and USCIS, Smith claimed to have labor contracts with various hotels, construction companies, and/or landscaping businesses for temporary work in the United States. In reality, many of his H-2B petition packages used fake temporary employment contracts as supporting evidence to exhibit the need for the foreign workers in the United States. USCIS approved all 11 of Smith's H-2B petitions, in large part, because of the fraudulent contracts supplied by Smith. Each of the approved petitions allowed Smith to bring in a different amount of alien workers. On average, each petition allowed him to bring in about 30 workers. Furthermore, law enforcement interviewed several of the H-2B workers admitted under Smith's fraudulent H-2B packages and they said they had worked at different job sites and performed different duties than those indicated on the petitions.
In August, USCIS reported on the conviction of Abhijit Prasad on various charges, "including 21 counts of visa fraud and two counts of aggravated identity theft," resulting from a DBFTF investigation in California. The agency explained:
According to the evidence at trial, Prasad filed 19 petitions for H-1B nonimmigrant visas containing false statements, made under penalty of perjury, as to purported work projects to be performed at locations in California, including Cisco Systems. The evidence at trial showed that Cisco had no expectation that the foreign workers who were the beneficiaries of the visa petitions would actually work at Cisco on an existing work project. The evidence at trial further showed that the defendant knowingly submitted forged Cisco documents to [USCIS] in support of his claims that the beneficiaries would work at Cisco.
...
Finally, the evidence at trial showed that Prasad fraudulently used the digital signature of a Cisco employee, who was not authorized to sign Cisco employment documents, to create a document that would leave the impression that two of the H-1B workers had an existing work project at Cisco. Prasad obtained two of the H-1B visas using this fraudulent document that purports to be a fully executed Cisco contract.
Such convictions are a powerful tool in dissuading employers from engaging in temporary worker fraud. Obtaining them, however, is dependent on the efforts of DOJ.
The department's U.S. attorneys are responsible for prosecuting those fraud cases. On April 11, 2017, then-Attorney General Jeff Sessions issued a memorandum calling on federal prosecutors to prioritize various immigration-related criminal offenses, including 18 U.S.C. § 1546, which relates to fraud and misuse of visas, permits, and other documents.
An August 2019 report from DOJ's Bureau of Justice Statistics (BJS), however, reveals that just 0.1 percent of all prosecutions of U.S. citizens before the federal district courts in FY 2018 involved "Misuse of visas and other violations", a category that includes not just 18 U.S.C. § 1546, but also section 243 of the Immigration and Nationality Act (INA) (penalties related to removal) and section 271 of the INA (failing to prevent the unauthorized entry of aliens).
With respect to section 243 of the INA, subparagraph (a)(1)(C) therein is the only provision that would apply to a U.S. citizen, and prohibits the taking of an action to prevent or hamper the departure of an alien under a final order of removal. Section 271 of the INA is a fairly arcane provision that applies to owners and employees of common carriers, bridges, and toll roads. Thus, only 18 U.S.C. § 1546 would penalize fraud in the temporary worker program.
Notably, however, that provision criminalizes not just fraud in the temporary worker programs, but most immigration fraud generally, and prosecutions thereunder could also relate to asylum, marriage, and passport fraud, as well as document vendors.
Notwithstanding the former attorney general's April 2017 directive, I have been told that U.S. attorneys have been reluctant to prosecute small-scale immigration fraud in the temporary worker programs, one factor that could explain the relatively small number of prosecutions despite, for example, the concerns of DOL OIG that those visa programs "are susceptible to significant fraud and abuse".
Finally, I noted in the aforementioned April 2 Backgrounder that the Immigrant and Employee Rights Section (IER) within the Civil Rights Division (CRT) at the Department of Justice (DOJ) has jurisdiction over the citizenship and national-origin discrimination provisions in section 274B of the Immigration and Nationality Act (INA). It appears from the attachments for CRT to DOJ's 2021 Congressional Budget Justification that there are only 29 FTE at IER.
Simply put, until additional resources are devoted to rooting out fraud in the employment-based visas system, it makes little sense to change that system for any purpose other than deterring fraud.