My colleagues and I have written extensively about immigration fraud. All immigration fraud is bad, because it undermines the integrity of the immigration system, and threatens national security. A recently completed case out of Indianapolis, however, presents the worst kind of immigration fraud: fraudulently obtained U-visas, nonimmigrant visas intended for victims of crime.
Under section 101(a)(15)(U) of the Immigration and Nationality Act (INA), nonimmigrant U visas are available to aliens who have been the victims in the United States of:
[R]ape; torture; trafficking; incest; domestic violence; sexual assault; abusive sexual contact; prostitution; sexual exploitation; stalking; female genital mutilation; being held hostage; peonage; involuntary servitude; slave trade; kidnapping; abduction; unlawful criminal restraint; false imprisonment; blackmail; extortion; manslaughter; murder; felonious assault; witness tampering; obstruction of justice; perjury; fraud in foreign labor contracting (as defined in section 1351 of title 18, United States Code); or attempt, conspiracy, or solicitation to commit any of the above mentioned crimes.
In a May 26, 2017, post, I explained how nonimmigrant U-visas are issued:
There is a petition process for U visas, and requirements that must be met for eligibility, including that the alien victim "has been helpful, is being helpful, or is likely to be helpful" to federal, state, or local law enforcement, prosecutors, or judges, but that would appear to have been true in this case and is true in most criminal cases where conviction relies on the testimony of the victim. In addition, the alien victim must show that he or she "has suffered substantial physical or mental abuse as a result of having been a victim of criminal activity," but again, this is true for the victim of most if not all of the qualifying crimes. Finally, and importantly, a U visa is available to the spouse and children of an alien victim.
There is a cap of 10,000 visas annually for alien victims, but as U.S. Citizenship and Immigration Services (USCIS) notes:
If the cap is reached before all U nonimmigrant petitions have been adjudicated, USCIS will create a waiting list for any eligible principal or derivative petitioners that are awaiting a final decision and a U visa. Petitioners placed on the waiting list will be granted deferred action or parole and are eligible to apply for work authorization while waiting for additional U visas to become available.
The total number of petitions filed for U-visas has increased significantly in recent years. In FY 2009, U.S. Citizenship and immigration Services (USCIS) received 10,937 petitions for U visa status. By FY 2016, that number had increased to 60,710 petitions.
In the Indianapolis case, according to the Department of Justice:
[I]mmigration attorney Joel Paul, 45, of Fishers, Indiana, pleaded guilty before U.S. District Judge Jane E. Magnus-Stinson of the Southern District of Indiana to an information charging him with one count each of mail fraud, immigration document fraud, and aggravated identity theft in connection with a scheme to submit fraudulent U-visa applications. Sentencing will be scheduled ... in early 2018.
Pursuant to the plea agreement in that matter, Paul admitted that between 2013 and 2017, he had filed "more than 250 false Applications for Advance Permission to Enter as a Nonimmigrant on behalf of his clients and without their knowledge." In those applications, it was "falsely asserted that Paul's clients had been victims of a crime and had provided substantial assistance to law enforcement in investigating the crime."
With approximately 200 of the false applications, Paul submitted unauthorized copies of a certification he had obtained from the U.S. Attorney's Office (USAO) for the Southern District of Indiana in 2013, using the certification without the USAO's knowledge to falsely claim that the applicant had provided substantial assistance in a criminal prosecution.
Although U-visas have long been controversial (particularly because of concerns that the U-visa process is susceptible to abuse), where they are legitimately and appropriately utilized they provide both protection to victims and a tool for law enforcement officers to use in getting criminals off of the streets. This sort of fraud, however, makes it more difficult for actual victims of crime to get the protection they need, because it draws resources away from the adjudication of genuine applications. In addition, because there is a (quasi-) cap on the number of U visas, any fraudulently issued visa diminishes the number of legitimate applicants who could obtain one. Moreover, such fraud undermines the legitimacy of the U-visa program as a whole.
The bigger question, however, is how Paul was able to get away with this fraud for so long. Logically, the large number of U-visa petitions that have been filed in recent years has placed a strain on USCIS's ability to screen for fraud in the application process. That said, however, it is unclear how the agency failed to recognize the fact that duplicate copies of the USAO certification had been filed in so many cases.
It will be interesting to see whether USCIS revokes any fraudulently obtained visas arising from this case. Although Paul purportedly filed those applications "without [his clients'] knowledge", this does not mitigate the fact that any visas granted pursuant to this scheme were erroneously issued, and should be revoked. Finally, it is unclear what specific applications those clients believed they had filed, but at least some of Paul's clients must have realized that something was amiss.
The Trump administration has made a priority of identifying fraud in the immigration system. While this case shows that the administration is taking efforts to make good on this promise, it also shows how much work is yet to be done.