On September 9, 2008, Manoj Kargudri, a 36-year-old Indian national, was arraigned in U.S. District Court in San Antonio on charges of visa and immigration fraud. Considered a flight risk, he was held pending trial. Kargudri was not just another run-of-the-mill illegal immigration case. This one had patterns of terrorist travel in it, taking advantage of vulnerabilities in U.S. border systems for the purpose of entering and embedding in the United States.
Kargudri reminds us that while the Department of Homeland Security (DHS) and the State Department have instituted better procedures at U.S. consulates abroad (as well as use of enhanced enforcement tools and a variety of identity and legal verification tools that assist in countering terrorist travel), there remain vulnerabilities in immigration enforcement, adjudication of immigration benefits, and overall integration of immigration information sharing. As long as the vulnerabilities remain, those seeking access to the United States will use them. And some of those – the laws of probabilities tell us – are likely to be terrorists.
Kargudri shut down San Antonio airport on August 26, 2008, when Transportation Security Administration (TSA) personnel found box cutters and a homemade battery strapped to the MP3 player in his carry-on luggage. He had a one-way ticket to Washington, D.C. TSA called in the San Antonio police, who in turn requested support from the FBI, Customs and Border Protection, and Immigration and Customs Enforcement (ICE). Kargudri was later cleared of any potential terrorism charges, but the immigration charges stuck. Prior to 9/11 Kargudri would not have been stopped by our immigration system. While we should be grateful that the TSA’s procedures and due diligence stopped him, it’s bad news that the immigration system failed, once more.
Acquiring the L-1 Visa
According to immigration records, Honeywell International had filed a blanket L-1 visa petition with U.S. Citizenship and Immigration Services (USCIS) on August 20, 2003. USCIS approved the Honeywell petition on October 15, 2003. The beneficiary on the petition was simply listed as “one unnamed worker.”
On June 2, 2005, Kargudri was approved for an L-1 visa based on the approved Honeywell petition at the American consulate in New Delhi. On June 12, 2005, Kargudri entered the United States as a Honeywell intra-company transferee through New York City. On October 4, 2005, the State Department revoked Kargudri’s visa and entered a lookout for him in the main database queried automatically at ports of entry as follows:
Blanket L-1 fraud. Subject obtained an L1 visa posing as a Honeywell employee qualifying for blanket petition specialized knowledge. Subject materially and willfully misrepresented himself to a consular officer in obtaining the visa because he never was a Honeywell employee. Subsequent investigation found that subject and at least ten others benefited from the same single scheme still under investigation to supply them with genuine Honeywell documents bearing forged signatures. The case is still under investigation. Honeywell has confirmed that none of the 11 were Honeywell employees.
The investigation, which took place two weeks before Kargudri’s visa revocation, was initiated when police in India arrested an individual who confessed to having bought a Honeywell petition for around $3,000 from another individual, and submitted it to the U.S. consulate to obtain a visa. Upon joint investigation into other Honeywell intra-company transfer petitions at the consulate, it was noted that 10 other applications seeking the same visa as Honeywell employees contained the same contact information, email addresses, cell phone numbers and U.S. points of contact. Two persons had already travelled to the United States on the fraudulent visas, including Kargudri. The State Department then issued the visa revocation and the above lookout for Kargudri, shared with the DHS and made available at ports of entry.
An L-1 non-immigrant visa is valid for three years. These are available to intra-company transferees of a company with offices in both the home country of the applicant and the United States. If the applicant has spent a year working for the company, they may apply to transfer to work in the United States for the same or subsidiary company. Their spouses may join them and work as well. These visas can be used to eventually attain permanent status – a Green Card.
Blanket L-1 petitions are filed by the company to USCIS. Once approved, an individual applicant employee of that company need only file a copy of the approved petition, along with personal information and employment qualifications for the position sought with the U.S. consulate where the individual resides.
The State Department was diligent in investigating the Honeywell petitions once one counterfeiter was picked up. The result was that the operation to enter the United States looking “clean” was squashed, and only two of the Honeywell petitions to gain “clean” visas and entry into the United States were successful in supporting illegal entry.
The problem was that without a check upfront of the veracity of the information on Kargudri’s visa application – the same type of glossing over of visa applications that occurred with the 9/11 hijackers in Germany and Saudi Arabia – once the visa was issued and entry obtained, it was nearly impossible to find the individual. Two 9/11 hijackers also had lookouts posted for them – but again, too late. They were already here, and ICE resources are simply not sufficient to seek and find individuals once they enter. The best scenario is when, or if, that individual seeks a government benefit or has an encounter with the law. Kargudri did, but he still was not caught.
While in the United States, Kargudri admitted to ICE officers that he had never worked for Honeywell. ICE called the woman listed as Kargudri’s point of contact for Honeywell, and she told the agents she knew Kargudri and he had worked with her not at Honeywell, but for a different employer, and then denied it. Kargudri told law enforcement personnel he had worked for Consumer Reports and Dunkin Donuts; the criminal complaint did not say in what capacities. In his luggage were checks from two doughnut companies and eYork Consulting, a software development and web design firm. A powder found in his luggage was later determined to be drink mix. Whether these companies ever asked for his legal status, or sought to determine if he was work authorized, is unknown.
Change of Status to F-1 Student
Kargudri was bold enough to provide border authorities another opportunity to find him. Kargudri, like the two 9/11 hijacker pilots who crashed into the World Trade Center, and many others who seek to stay longer in the United States, filed for a change of status to student. A search of immigration records revealed that on January 21, 2008, Kargudri applied to USCIS with an I-539 change of status application. He stated that he was an L-1 nonimmigrant Honeywell employee living in Sherman, Texas, seeking to change his status to that of full-time F-1 nonimmigrant academic student to attend Grayson College in Denison, Texas.
On August 1, 2008, Kargudri’s status was changed from intra-company transferee to full-time student. The outstanding lookout did not make its way into the adjudication process. Nor did the adjudicator – just like the consular officer – check with Honeywell to verify that Kargudri had, indeed, been an employee. Either way, Kargudri did not matriculate and thus Grayson College cancelled his student status through the post-9/11 Student Exchange and Visitor Information System, SEVIS.
9/11 and Terrorist Travel Techniques
Like the 9/11 hijackers, Kargudri’s travel began abroad. Some similarities are as follows:
Clean travel with less scrutiny
For a terrorist, or anyone else seeking to get here illegally, if the goal is to embed and seek U.S. citizen privileges, the guise of “clean” entry is important to assuring success. Kargudri did so, using an innovative form of fraud that was less likely to be fact-checked by a consular officer. The 19 hijackers successfully obtained visas in 22 of 23 attempts by using a similar move: obtain their visas through Germany, a Visa Waiver country, or Saudi Arabia, known to be a virtual Visa Waiver country where visas were processed, but rarely reviewed more than superficially. At least two hijackers lied on their visa applications in detectable ways, but were never questioned. Over 21 months, the hijackers entered the United States through ports of entry 34 times, and only once were refused entry.
Both Kargudri and 9/11 hijackers evaded lookouts. They did so by simply gaining entry and embedding within the United States. While it was known Kargudri had committed fraud, without any other co-conspirators named or a criminal background, he simply was not a priority for an ICE investigation. A constant obstacle to ICE in determining whether they should be looking for someone is that there is still no exit-tracking system in place, and therefore no way to know whether a person has already departed the United States. Many do not see a connection between terror travel and an exit system, but a review of the 9/11 hijacker lookouts makes a clear case.
On August 23, 2001, the CIA notified law enforcement and border authorities that two of the hijackers might be in the country. While both the CIA and FBI took the information seriously, there was no way for either agency to know where to put resources to find the hijackers, as the exit system Congress had authorized in 1996 was never implemented. If an exit system had been in place, not only would authorities have more confidence that the terrorists were still in the United States, but they would also have known that one was an overstay and subject to immigration enforcement.
An exit-tracking system is still not in place today, and the interests involved are still squabbling over questions of where, who, and how to fund it, despite DHS putting out proposed regulations in May 2008. A 12-year standoff, still unresolved.
Plagiarizing information on applications
Kargudri and his 10 co-conspirators used the same information on their visa applications. They knew what was working and submitted visa applications that would be approved via the path of least resistance. The 9/11 hijackers did the same when applying for immigration benefits in the autumn of 2000. Both 9/11 pilots who crashed into the World Trade Center had used the same address, bank account information, and supporting financial documents. Moreover, their applications were processed by the same adjudicator.
The hijackers also repeated the technique when applying for the Virginia IDs acquired in August 2000. One residency certificate obtained for cash from an illegal immigrant supported five applications for Virginia ID cards, including one for the Pentagon pilot and one for the Pennsylvania pilot. In none of these situations was information cross-checked; with bureaucracies overwhelmed with applications to adjudicate, the processes and procedures for more thorough checking were simply not in place.
Applying for a change of status to student, and using that status to further embed
Three hijackers filed applications for change of status, two to student. Both of those seeking student visas used the fact of their pending applications to enable them continue to gain entry to the United States after being referred to secondary inspection, even though they had overstayed their tourist visas. The one pilot that came in on a student visa never attended school, and violated his status. Another pilot came in on a tourist visa, but began attending flight school immediately on a tourist visa, also violating his visa, and traveled into the United States at total of seven times before 9/11.
The difference with Kargudri was that SEVIS was in place, and thus Grayson College knew Kargudri was approved for student status to attend, and also had a means of informing immigration authorities when he did not show up at school. Thus, when Kargudri was stopped at San Antonio airport, and his immigration status was checked, it was immediately verified that he was not legally in the country.
SEVIS was not in place on 9/11, and thus there was a disconnect as to what authorities were able to know about the hijackers’ actual legal status. The Pennsylvania pilot should have been reported immediately for failing to show up at school; he was in violation but there was no way for immigration authorities to know. And when the two World Trade Center pilots re-entering the country were referred for further inspection in January 2001 and claimed they had filed for a change of status for a school they were attending, there was no way for border authorities to verify that information either. Lack of information prevents border authorities from making sound decisions. With SEVIS in place, ICE was in a different position with Kargudri; he had a known immigration violation on top of allegations of fraud in acquiring the visa.
Once more, it was not the immigration system that caught Kargudri’s illegal status; it was unrelated law enforcement action buttressed by derogatory information in the border system –SEVIS and the lookout system. It seems unusual that anyone – after all the notoriety from 9/11 and notices for flight restrictions – would attempt to pass through airport security with a box cutter or a homemade battery strapped to an electronic device. That aside, Kargudri is not considered a terrorist; the charges were dropped. What is the case is that Kargudri used some of the same entry and embedding tactics as the 9/11 hijackers. The Kargudri case serves as a test of the strengths and weaknesses in our border system; what we know so far:
- U.S. Consulates and the adjudication of visas. A key element of terrorist travel is to look “clean” – i.e., legitimate – while committing fraud in some manner, whether through using false documentation or acquiring genuine documents with false information. In this case, the documentation was not false, but the documents were attained without authorization and the information on the attached visa application was false. Kargudri got away with it by using a legitimate Honeywell employment petition completed in a manner that assured its approval by a U.S. consular officer. Checks for prior immigration refusals or violations and watchlists were bypassed as Kargudri had not been in the U.S. border system previously. So he looked “clean” and obtained his visa.
If the consular officer had contacted Honeywell to ensure the information was accurate, Kargudri would likely have been denied. But Kargudri (or his travel facilitator) was smart, presenting an employment petition that claimed a prior work history with Honeywell with a petition already approved for all intra-company transferees, and thus less likely for the information to be verified. With no procedures in place for an automatic query to be sent to Honeywell to conduct a quick verification – like an E-Verify system for visa issuance – the visa system showed it is still vulnerable to fraud.
- U.S. Consulates and posting a lookout. Eleven of the Honeywell employment petitions were submitted at the same Indian consulate. As soon as the fraud was discovered consular officers did the right thing and posted a lookout for Kargudri. This is proactive – if belated – security activity.
- U.S. ports of entry. The U.S. border system uses top-notch technologies at ports of entry when determining admissibility. Yet the system will never be able to catch those who use legitimate documents fraudulently to obtain a visa and enter the United States. Only watchlists, lookouts, and real-time availability of derogatory information can keep those like Kargudri out. When the ports of entry are reliant on the rest of the border system to help them decide – in 30 seconds or less – whether a foreign national should be able to gain entry into the United States, and that system fails, the last best chance to keep such individuals out fails as well.
- Immigration Enforcement. ICE is perpetually overextended. A lookout for fraud for a single individual is not going to get much attention. In addition, like the 9/11 hijackers whose visas were revoked in the weeks leading up to 9/11, a visa revoked after an individual has already entered the United States makes finding or enforcing against that visa difficult. Lack of an exit-tracking system compounds the problem; there is no way of assuring with any certainty that the individual sought is still in the country.
- Immigration Benefits. The immigration benefits system failed in the Kargudri case two times: the Honeywell blanket petition for L-1s was approved without verifying the information it contained, and Kargudri’s application for a change of status from an employment-based visa to a student visa was approved without review of potential derogatory information. Obviously, information that there was a lookout for an individual with the exact name and history as Kargudri was not available to the adjudicating officer, or was ignored. A background check was either not completed, or incompletely conducted.
- SEVIS. Made law in 1996 but not up and running until after 9/11, SEVIS is another ICE tool that is a low priority. Unless there is a terrorist angle, absconding students are not sought after by ICE. SEVIS, however, gets credit for working here by enabling Grayson College to see that Kargudri’s student status had been approved, and the date, and further permitting a relay back to the immigration system with the information that he was a no-show.
- Transportation Security Administration. TSA did its job, and in so doing, unwound a series of immigration violations that otherwise went ignored and unnoticed by the overall system.
Integrating the 20-plus immigration databases into unified “traveler histories” was a key recommendation of the 9/11 Commission. That has yet to happen, even though such integration is mandated by law. In addition, USCIS is not getting basic lookout information. The USCIS Ombudsman in his 2008 annual report http://www.dhs.gov/xlibrary/assets/CISOMB_Annual_Report_2008.pdf stated that basic background checks against biometrics are still not available in any systematic way to adjudicators. US-VISIT is currently working to fill in some of the gaps, but this is far from sufficient.
In addition, Kargudri entered in June 2005. When he was adjudicated by immigration benefits authorities, he had already been known within the border system to have entered illegally more than three years prior. USCIS granting legal status to an illegal alien should raise red flags about how USCIS does its business.
Kudos also to Grayson College for following procedures and marking Kargudri down as a no-show. The no-show information allowed federal authorities to hold Kargudri as definitively violating his immigration status.
While it’s encouraging that TSA did its job, the immigration system is still trying to catch up with terrorist travel techniques. Immigration enforcement (including an exit-tracking program), immigration benefits adjudication, and overall information sharing between immigration authorities all remain crucial to curtailing terrorist travel. We have made strides toward improved border security, but the finish line is still not in sight.
Sources for this article are:
Affidavit in Support of Criminal Complaint, U.S. v. Manoj D. Kargudri, U.S. District Court, Eastern District of Texas, September 2, 2008.
Guillermo Contreras, S.A. Shows Gap in Anti-Terror Shield, S.A. News, Sept. 12, 2008, http://www.mysanantonio.com/news/local_news/28272504.html