SPEAKERS CONTENTS INSERTS Tables
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NONIMMIGRANT VISA FRAUD
IMMIGRATION AND CLAIMS
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTH CONGRESS
MAY 5, 1999
Serial No. 12
Printed for the use of the Committee on the Judiciary
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For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
COMMITTEE ON THE JUDICIARY
HENRY J. HYDE, Illinois, Chairman
F. JAMES SENSENBRENNER, Jr., Wisconsin
BILL McCOLLUM, Florida
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR S. SMITH, Texas
ELTON GALLEGLY, California
CHARLES T. CANADY, Florida
BOB GOODLATTE, Virginia
ED BRYANT, Tennessee
STEVE CHABOT, Ohio
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
ASA HUTCHINSON, Arkansas
EDWARD A. PEASE, Indiana
CHRIS CANNON, Utah
JAMES E. ROGAN, California
LINDSEY O. GRAHAM, South Carolina
MARY BONO, California
SPENCER BACHUS, Alabama
Page 3 PREV PAGE TOP OF DOCJOE SCARBOROUGH, Florida
JOHN CONYERS, Jr., Michigan
BARNEY FRANK, Massachusetts
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
STEVEN R. ROTHMAN, New Jersey
TAMMY BALDWIN, Wisconsin
ANTHONY D. WEINER, New York
THOMAS E. MOONEY, SR., General Counsel-Chief of Staff
JULIAN EPSTEIN, Minority Chief Counsel and Staff Director
Subcommittee on Immigration and Claims
LAMAR S. SMITH, Texas, Chairman
BILL McCOLLUM, Florida
Page 4 PREV PAGE TOP OF DOCELTON GALLEGLY, California
EDWARD A. PEASE, Indiana
CHRIS CANNON, Utah
CHARLES T. CANADY, Florida
BOB GOODLATTE, Virginia
JOE SCARBOROUGH, Florida
SHEILA JACKSON LEE, Texas
HOWARD L. BERMAN, California
ZOE LOFGREN, California
BARNEY FRANK, Massachusetts
MARTIN T. MEEHAN, Massachusetts
GEORGE FISHMAN, Chief Counsel
JIM WILON, Counsel
LAURA BAXTER, Counsel
CINDY BLACKSTON, Professional Staff
LEON BUCK, Minority Counsel
C O N T E N T S
May 5, 1999
Page 5 PREV PAGE TOP OF DOC Smith, Hon. Lamar, a Representative in Congress from the State of Texas, and chairman, Subcommittee on Immigration and Claims
Bromwich, Inspector General Michael, U.S. Department of Justice
Esposito, Jill, Post Liaison Division, Visa Office, U.S. Department of State, Bureau of Consular Affairs
Mancini, Mark, Wasserman, Mancini & Chang Law Firm
Ratigan, John, retired Consular Officer, Immigration Consultant, Paul, Weiss Law Firm
Sambaiew, Nancy, Deputy Assistant Secretary for Visa Services, U.S. Department of State, Bureau of Consular Affairs
Shotwell, Lynn, American Council on International Personnel
Williams-Bridgers, Inspector General Jacquelyn L., U.S. Department of State
Yates, William A., Director of Immigration Services, Immigration and Naturalization Service
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LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Bromwich, Inspector General Michael, U.S. Department of Justice: Prepared statement
Esposito, Jill, Post Liaison Division, Visa Office, U.S. Department of State, Bureau of Consular Affairs: Prepared statement
Mancini, Mark, Wasserman, Mancini & Chang Law Firm: Prepared statement
Ratigan, John, retired Consular Officer, Immigration Consultant, Paul, Weiss Law Firm: Prepared statement
Sambaiew, Nancy, Deputy Assistant Secretary for Visa Services, U.S. Department of State, Bureau of Consular Affairs: Prepared statement
Shotwell, Lynn, American Council on International Personnel: Prepared statement
Williams-Bridgers, Inspector General Jacquelyn L., U.S. Department of State: Prepared statement
Yates, William A., Director of Immigration Services, Immigration and Naturalization Service: Prepared statement
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NONIMMIGRANT VISA FRAUD
WEDNESDAY, MAY 5, 1999
House of Representatives,
Subcommittee on Immigration
Committee on the Judiciary,
The subcommittee met, pursuant to call, at 10:10 a.m., in Room 2237, Rayburn House Office Building, Hon. Lamar Smith [chairman of the subcommittee] presiding.
Present: Representatives Lamar Smith, Edward A. Pease, and Sheila Jackson Lee.
Staff present: George Fishman, Chief Counsel; William Griffith, Pearson Fellow; Judy Knott, Staff Assistant; and Leon Buck, Minority Counsel.
OPENING STATEMENT OF CHAIRMAN SMITH
Mr. SMITH. The Subcommittee on Immigration and Claims will come to order. You may not be familiar with the rules of the House, which is that two Members are required to be present before we can start the hearing. So this morning Ed Pease of Indiana is the indispensable second person. Thanks to him, we will be able to proceed.
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I am told by the Ranking Member's chief counsel that we can proceed as well.
I am going to recognize myself for an opening statement and then if the Ranking Member is here we will receive her opening statement and other opening statements.
Today's hearing focuses on nonimmigrant visa fraud, specifically fraud with employment-based and student visas.
With aliens paying tens of thousands of dollars to be smuggled into the United States in derelict vessels and across arid and inhospitable deserts, obtaining a visa fraudulently is a very tempting solution for aliens seeking to enter the U.S. illegally.
Who wouldn't choose a comfortable seat on an airplane over the unventilated hold of a ship or a long distance trek through the wilderness? Traveling with a visa offers safety and comfort. Some even fly first class.
While our primary concern about visa fraud is over its use as a means to facilitate illegal immigration into the United States, we should not forget that it also can be utilized by terrorists and criminals. Front companies that file fraudulent petitions on behalf of aliens who want to work illegally in the United States can just as easily be used as front companies for organized crime.
The INS and Department of State have identified pervasive fraud with some petition-based visa categories. First, let's look at L visas. Those visas enable personnel of multinational organizations to transfer to offices in the U.S. A 1997 report by the INS's California Service Center on L visa fraud by Chinese applicants, entitled ''The Great Wall of Deception,'' described how paper companies play a shell game with phony sales invoices, business contracts and other documents that give the appearance of legitimate business activities.
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Site checks of subsidiaries in the United States, the destination where the L visa holders are supposed to work, turned up a ''flea bag motel, a residential home, an immigration consultant's office, and a legitimate business that allows subsidiary companies to use their address.''
According to the report, 90 percent of the Chinese L visa petitioners investigated were found to have submitted fraudulent documents to the INS. Department of State reporting from China posts described similar levels of fraud with L visa petitions.
Although many fraudulent L visas are denied, the Department of State still issued 38,000 L1 visas in fiscal year 1998 and over 150,000 have been issued in the past 5 years. Thousands more acquired L status by changing their nonimmigrant status with the INS while in the U.S. While many of these visas were issued to the employees of well-known, legitimate companies, the true circumstances of many of the petitioning companies were undetermined.
Next, the H1B program is not without fraud. A March 1999 report by the INS's Vermont Service Center on Indian H1B fraud described companies that established subsidiaries in the U.S. and then solicited job candidates and guaranteed them employment in the U.S. for a fee of $8,000 to $10,000.
If the applicant did not have the necessary educational background to qualify for an H1B visa, the recruiting agency would charge an additional fee and provide the applicant with fraudulent educational certificates or employment experience letters.
Page 10 PREV PAGE TOP OF DOC One of the questions we need to ask today is whether there are ways to eliminate structural vulnerabilities that exist in these visa categories while maintaining them as vehicles that are responsive to the real needs of legitimate companies.
One option would be for the INS to establish a system to track the immigration status of the holders of petition-based visas after they enter the country. These individuals can remain in the United States legally for as long as 7 yearswe need to know where they are and what their status is.
Today in a related matter we will hear from the INS about a system that is developing in collaboration with the schools to monitor foreign students in the U.S. Section 641 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 mandated that INS set up a system to track foreign students in the U.S.
Congress' primary concern in setting up this system was with students who legitimately entered the U.S. with a visa but either do not show up at school or drop out after a short time and seek illegal employment. Up until now, the INS and the academic initiations have not had an effective tracking system in place.
I will recognize the Ranking Member when she arrives. We will now go to the first panel, and let me introduce our two witnesses.
First is Inspector General Michael Bromwich with the Justice Department and Inspector General Jacquelyn L. Williams-Bridgers from the State Department. Mr. Bromwich, we are delighted to have you here again.
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STATEMENT OF INSPECTOR GENERAL MICHAEL BROMWICH, U.S. DEPARTMENT OF JUSTICE
Mr. BROMWICH. Thank you very much. Mr. Chairman, members of the subcommittee. I appreciate the opportunity to appear before you to discuss the work of the Office of the Inspector General of the Justice Department with respect to fraud involving nonimmigrant visas and other immigration documents.
In my oral testimony this morning I will do three things. First, I will provide an overview of the potential for fraud in the nonimmigrant visa programs; second, discuss the OIG's role in investigating visa and other immigration document fraud; and, third, update the subcommittee on testimony I provided 2 years ago on the steps that INS has taken to address recommendations in our 1996 inspection of document fraud records.
Mr. SMITH. Let me interrupt you. I forgot to make my usual statement that we do need to limit everybody to 5 minutes, to get through with the hearing and out of fairness to the subsequent witnesses. I want to say that now so no one takes it personally.
Mr. BROMWICH. Last October, the OIG's Inspections Division developed an in-house reference document devoted to exploring the potential for fraud in various visa programs, particularly nonimmigrant visa programs. This document was designed to provide background information as a prelude to doing further work in this area. I plan to make copies of this report available to members of the subcommittee.
Page 12 PREV PAGE TOP OF DOC Based on our review we identified four common types of nonimmigrant visa fraud or fraud related to the use of visas. First, a person uses fraudulent documents to obtain a legitimate visa. For example, a person improperly obtains letterhead from a U.S. business and creates a letter inventing a false reason for traveling to this country. If the State Department has issued a B1, or temporary visitor for business visa, the INS inspector on duty has no basis for denying the person entry into the U.S.
Second, a person obtains a fraudulent visa. An individual can attempt to use the passport and visa of a person who has a similar appearance and similar bio characteristics, or the person can purchase an altered document. Accomplished counterfeiters can alter the biographical data and digitized photographs on even the most secure visas in use today.
Third, an individual may not meet the spirit or intent of the specific visa program. For example, the GAO found that 85 percent of individuals requesting religious worker visas are already in the U.S. and are attempting to adjust their status. Many of these individuals are requesting visas through unaffiliated so-called ''store front'' churches whose legitimacy may be open to question.
Fourth, after arriving legitimately, an individual may overstay his or her visa and plan to reside in the United States permanently. The subcommittee is well aware of this phenomenon in light of its hearing in March on nonimmigrant overstays.
In developing our in-house report we did not find comprehensive data related to nonimmigrant visa fraud. In fact, there is very little hard data available to gauge the magnitude of visa fraud, a point noted by GAO in its reports on this subject. For example, the State Department does not track visa refusal rates by visa types. Similarly, INS told us that individuals made more than 42,000 attempts to enter the U.S. between October 1992 and May 1993 with fraudulent or altered documents. While INS was able to produce these statistics for a State Department audit report, they are unable to update these figures because they do not maintain centralized statistics on fraudulent or altered documents. This lack of comprehensive statistics hinders the ability of the State Department and the INS to appropriately respond to visa fraud.
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Based on the information we collected, potentially the greatest risk to national security and illegal immigration appears to come from nonimmigrants visiting under the visa waiver pilot program. I understand the subcommittee will examine the subject next year when the law comes up for reauthorization.
Our Investigations Division spends a significant portion of its resources investigating immigration document related corruption in INS. During the past 5 years, a large number of OIG investigations have involved document fraud. This is particularly true for our field offices along the southwest border. I have in my prepared remarks a description of a couple of those cases, but I will skip over those in the interest of time. These kinds of investigations are essential to protecting the integrity of the lawful immigration process and to help deter INS employees who might be susceptible to corruption.
Finally, I would like to update the subcommittee on actions taken by INS in response to our inspections report that formed the basis for my testimony before this panel in May 1997.
As you may recall, our inspection found that in successful document fraud investigations the Government generally prosecutes the vendors of the documents, the middlemen who paid the bribes, and any corrupt INS employees who accept bribes. If the vendors and middlemen are illegal aliens, INS usually initiates deportation proceedings. What was less clear was what INS did with the aliens who obtained immigration documents by fraudulent means. Our inspection found that INS took no action against these aliens. They were not prosecuted or deported. In addition, INS had no method of even flagging the names or alien numbers in INS's records systems to alert INS officers who subsequently came in contact with these aliens. Consequently, these aliens were free to continue to reap benefits from their illegal scheme and to use one illegally obtained benefit to obtain additional benefits.
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We pointed out the deterrent value of pursuing and deporting aliens identified through document fraud investigations while recognizing constraints on INS's ability to do so. In its response to our report, INS agreed to develop a fraud flagging system and to begin working on the necessary enhancements to its automated systems. INS has since provided us with a copy of a document indicating it has taken action in this area. Based on this information, we closed the recommendations in our inspections report. This is the type of issue in which OIG follow-up work would be warranted. We have not yet had the ability to do so.
In closing, Mr. Chairman, nonimmigrant visa fraud poses a threat to the orderly operation of our immigration system, and both the State Department and Justice Department have vital roles to play in this process. As resources permit, the OIG will continue to conduct investigations, inspections and audits that address some of the key vulnerabilities that exist in the system.
I am very pleased to answer any questions that you may have.
[The prepared statement of Mr. Bromwich follows:]
PREPARED STATEMENT OF INSPECTOR GENERAL MICHAEL BROMWICH, U.S. DEPARTMENT OF JUSTICE
Mr. Chairman, Congresswoman Jackson Lee, and Members of the Subcommittee on Immigration and Claims:
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I appreciate the opportunity to appear before the Subcommittee to discuss the work of the Office of the Inspector General (OIG) with respect to fraud involving nonimmigrant visas and other immigration documents.
Combating nonimmigrant visa fraud is a responsibility shared primarily by the State Department and the Immigration and Naturalization Service (INS). The State Department has primary responsibility for administering immigration laws outside the United States. Specifically, the State Department's Bureau of Consular Affairs administers visa-processing operations at overseas posts. The primary goal of Consular Offices is to provide expeditious visa processing for qualified applicants while denying entry to individuals who pose a security threat or are likely to remain in the United States illegally. The Inspector General from the State Department can address these issues in greater detail.
Domestically, the primary responsibility for controlling entry of non-citizens into the United States falls to INS. When nonimmigrants arrive at a port of entry and present a visa and passport, an INS inspector determines whether to grant the nonimmigrant entry to this country. If the visa is machine-readable, the inspector scans it. If it is not, the inspector types the nonimmigrant's name and date of birth into the Interagency Border Inspection System (IBIS)commonly known as the ''Lookout System.''
This morning I plan to do four things during my testimony: first, provide an overview of the potential for fraud in the nonimmigrant visa program. Second, describe the OIG's role in investigating visa and other immigration document fraud. Third, update the Subcommittee on testimony I provided two years ago this month on the steps INS has taken to address recommendations in our 1996 inspection of document fraud records corrections. And finally, briefly address the potential for fraud inherent in the Visa Waiver Pilot Program (VWPP), which comes up for reauthorization next year.
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II. POTENTIAL FOR NONIMMIGRANT VISA FRAUD
In October 1998, the OIG's Inspections Division developed an in-house reference document entitled, ''Potential for Fraud in the Visa Program'' that focused specifically on nonimmigrants. This document was designed to provide important background information as a prelude to doing further work in this area. To compile the report, OIG Inspectors interviewed staff from INS, the State Department, and the General Accounting Office (GAO). They also reviewed documents from these three agencies as well as relevant legislation. I have copies of this report for members of the Subcommittee and their staff.
Based on our review, we identified four common types of nonimmigrant visa fraud or fraud related to the use of visas:
A person uses fraudulent documents to obtain a legitimate visa. For example, an individual improperly obtains letterhead from a United States business and creates a letter supporting a false reason for traveling to this country. The State Department generally will issue a B1 visa (temporary visitor for business). In such cases, the INS inspector has no reason to deny the individual entry into the United States.
A person obtains a fraudulent visa. An individual can attempt to use the passport and visa of a person who has similar looks and biographical characteristics (e.g., hair and eye color, age) or can purchase an altered document. Accomplished counterfeiters can alter the biographical data and digitized photographs on even the most secure visas in use today.
Page 17 PREV PAGE TOP OF DOC An individual may not meet the spirit or intent of the specific visa program. For example, GAO found that 85 percent of individuals requesting religious worker visas are already in the United States and are attempting to adjust status (e.g., from a student visa to a religious worker visa). Many of these individuals are requesting visas through unaffiliated, ''storefront churches.''
After arriving legitimately, an individual may overstay his/her visa and plan to reside in the United States ''permanently.''
We did not find comprehensive data related to nonimmigrant visa fraud. In fact, there is very little hard data available to gauge the magnitude of visa fraud, a point noted by GAO in its reports on this subject. For example, the State Department does not track visa refusal rates by visa type. Similarly, INS told us that individuals made 42,299 attempts to enter the United States between October 1992 through May 1993 with fraudulent or altered documents. While INS produced these statistics for an audit report, they are unable to update these figures because they do not maintain centralized statistics on fraudulent or altered documents. This lack of comprehensive statistics hinders the ability of the State Department and INS to appropriately respond to visa fraud.
Based on the information we collected, however, potentially the greatest risk to national security and illegal immigration appears to come from nonimmigrants visiting under the VWPP, a subject I will return to later in my remarks. With the extensive use of VWPP and without comprehensive systems to track or without aggressive efforts to identify nonimmigrant visa fraud, it is difficult to provide accurate risk assessments for the various visa classes.
Page 18 PREV PAGE TOP OF DOC That said, we offer an opinion in our in-house report of the relative risk for each visa type based on the information we reviewed. We also provide for each visa type a description of the visa, the maximum initial period of admission, the number of visas the State Department issued in FY 1996, the number of arrivals INS recorded in FY 1996, and additional information.
III. OIG ROLE IN INVESTIGATING IMMIGRATION FRAUD
The OIG spends almost one-fourth of its Investigations Division resources investigating immigration document-related corruption in INS. During the past five years, 22 percent of all OIG investigations involved document fraud; this percentage is significantly higher for our field offices along the southwest border. A statistical breakdown follows:
To assist the Subcommittee in its examination of this issue, I highlight several examples of investigations of visa fraud or other types of document fraud conducted by the OIG:
Between 1987 and 1995, four Korean nationals bribed a supervisory Immigration Adjudications Officer in the INS San Jose, CA, office to unlawfully adjust the status of aliens to permanent residence. At least 275 aliens, almost exclusively from Korea, initially entered the United States on nonimmigrant visas. The corrupt INS employee created false records in INS databases indicating that the aliens changed their status from ''nonimmigrant'' to ''immigrant'' (i.e., permanent resident). The INS officer admitted receiving a total of $450,000 in bribe payments from four Korean nationals who made at least a million dollars from this scheme. The former Immigration officer and the four Korean nationals have been indicted.
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A former INS Officer-in-Charge in Hong Kong was arrested for trafficking in blank Honduran passports (i.e., containing no name, photograph, or biographic data) containing fraudulent U.S. nonimmigrant visas. The passports and nonimmigrant visas were apparently being sold in Hong Kong to Chinese nationals who would use them to enter the United States. The OIG investigated this case jointly with the Hong Kong Independent Commission Against Corruption.
In the Eastern District of New York, an INS immigration inspector assigned to JFK International Airport was arrested on charges of providing altered U. S. passports and other identity documents to illegal aliens. The inspector was videotaped accepting a total of $10,000 in bribes in exchange for identity packages that contained U.S. passports, INS Alien Registration Receipt Cards (Green Cards), and drivers' licenses.
These investigations are essential to protect the integrity of the lawful immigration process and to help deter INS employees who might be susceptible to corruption. The experience and expertise of OIG investigators make this office uniquely suited to conduct these complex investigations.
IV. UPDATE: INSPECTOR GENERAL'S MAY 1997 TESTIMONY
I would like to update the Subcommittee on actions taken by INS in response to the recommendation made in our report, Immigration and Naturalization Service Document Fraud Records Corrections, that formed the basis for my testimony before this panel in May 1997.
Page 20 PREV PAGE TOP OF DOC As you may recall, our inspection found that in successful document fraud investigations the government generally prosecutes the vendors of the documents, the middlemen who paid bribes, and any corrupt INS employees who accepted bribes. If the vendors and middlemen are illegal aliens, INS usually initiates deportation proceedings. What was less clear was what INS did with the aliens who obtained immigration documents by fraudulent means.
Our inspection found that INS took no action against these aliens. Not only did INS fail to prosecute or deport these aliens, it had no method of even flagging the names or alien numbers (''A-numbers'') in INS's record systems to alert INS officers who subsequently came into contact with these aliens. Consequently, these aliens were free to continue to reap benefits from an illegal scheme and even use one illegally obtained benefit to obtain additional benefits.
We pointed out the deterrent value of pursuing and deporting aliens identified through document fraud investigations while recognizing constraints on INS's ability to do so. Short of deportation, we recommended that INS correct fraudulent database entries and develop a flagging system to alert INS personnel to alien participation in fraud schemes.
In its response to our report, INS agreed to develop a ''fraud flagging system'' and to begin working on the necessary enhancements to its automated systems. INS has since provided us with a copy of its ''Flagging of Fraudulent Records in INS Automated Systems Operational Policy and Procedures'' document and reported that the automated system has been implemented. Based on this information, we closed the recommendations in our Inspection report. This is the type of issue in which OIG follow-up work would be warranted; however, we have not yet done such work because of resource constraints.
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V. VISA WAIVER PILOT PROGRAM
The OIG issued a report in March 1999 that examined the potential for fraud in the VWPP, a program that waives visa requirements for visitors from 26 countries who travel to the United States for business or pleasure. In FY 1997, 14.5 million visitors entered this country under the VWPP, representing 51 percent of all nonimmigrants admitted.
The VWPP allows aliens who might otherwise be inadmissible or who present law enforcement or security concerns to avoid the pre-screening that consular officers normally perform on visa applicants. All that is required is a passport from one of the 26 participating countries. Our review found that terrorists, criminals, smugglers, and others have attempted to enter the United States using stolen blank passports from a Visa Waiver country or by altering or counterfeiting these passports.
While the recommendations in our report will assist INS in reducing the risks of the VWPP, we recognize that many important issues related to the VWPP are beyond INS's control. These include the State Department's ability to nominate countries for the VWPP that INS considers problematic, when or whether participating countries will be required to implement ''machine readable'' passports that will facilitate the inspection process and are fraud resistant, and coordinating participating countries' reporting of stolen passports. These are problems that may potentially compromise INS's inspection process.
I understand that the Subcommittee may address this issue in detail next year when the VWPP program comes up for reauthorization. We stand ready to assist the Subcommittee in its deliberations.
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VI. NONIMMIGRANT VISA OVERSTAYS
Finally, I wanted to mention a Special Investigation by my office released in March 1998''Bombs in Brooklyn: How the Two Illegal Aliens Arrested for Plotting to Bomb the New York Subway Entered and Remained in the United States''that highlighted the threat that some non-immigrant overstays may be involved in terrorist activities. In this particular investigation, one of the two Palestinians arrested for allegedly planning to bomb the Brooklyn subway illegally remained in the United States after his visitor's visa expired.
We found that because the Palestinian's alleged purpose for traveling to the United States was solely to catch a connecting flight to Ecuador, he should not have received a visa that permitted him to remain in this country longer than the time needed to board a connecting flight. We recommended that the INS and the State Department more carefully consider when ''transit without visa travel'' is appropriate; in this particular case, the Consular Office did not even consider this status as an option.
As I testified at the Subcommittee's March hearing on nonimmigrant overstays, our investigation discovered significant differences of understanding between INS and the State Department about various officials' roles in the visa process. Neither the immigration inspector at the port of entry nor the Consular Officer who issued the visa thought it was his or her role to verify that the Palestinian actually had a ticket to Ecuador or adequate funds for the trip. Neither thought that it was his or her responsibility to consider restricting the period of his stay to something less than the 29 days permitted under a ''person in transit'' or C1 visa. We believe that this confusion over the appropriate role of INS and State Department officials needs to be addressed and clarified in the interests of controlling illegal immigration.
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Nonimmigrant visa fraud poses a threat to the orderly operation of our immigration system and both the State Department and Justice Department have vital roles to play in this process. As resources permit, the OIG will continue to conduct investigations, inspections, and audits that address some of the key vulnerabilities that exist in the system.
I would be pleased to answer any questions.
Mr. SMITH. Thank you, Mr. Bromwich. Ms. Williams-Bridgers.
STATEMENT OF INSPECTOR GENERAL JACQUELYN L. WILLIAMS-BRIDGERS, U.S. DEPARTMENT OF STATE
Ms. WILLIAMS-BRIDGERS. Thank you for the opportunity to testify before the subcommittee on nonimmigrant visa fraud. I am pleased to provide an overview of our work relating to consular antifraud efforts in the State Department. Over 230 overseas missions processed over 700,000 immigrant visa applications and over 7 million nonimmigrant visa applications during 1998.
The Department has faced significant challenges in its visa processing operations over the years. Immigrant and nonimmigrant visa processing has been identified in the Department as a material weakness since 1987. The Department and my office have cited unfilled computer needs, insufficient consular staffing and inadequate interagency exchanges of intelligence on undesirable aliens as creating a greater likelihood of fraud.
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My office has also identified weaknesses in consular training and antifraud program management. Currently we are reviewing the Department's consular antifraud programs. While we have not yet finished our final report, my statement does include preliminary observations based on our ongoing review.
The Department has made significant progress in enhancing its visa and passport processing operations in recent years. It has introduced a photo digitized passport, and enhanced data sharing via the interagency border inspection system. It has modernized consular systems worldwide, improved effectiveness of the name check system, and is introducing a more secure border biometric crossing card (laser visa) in Mexico. The Department has also developed a model for ranking high fraud posts and now issues an antifraud monthly magazine devoted to global and regional fraud trends.
In my statement today I will focus on consular staffing and training of our consular line officers and our foreign service national investigators and the management of the antifraud program overseas. I will also discuss our investigative work as it pertains to consular fraud cases.
My discussion of the Department's antifraud efforts is not limited to nonimmigrant visa fraud, but rather applies more broadly to all types of consular fraud. At overseas posts, consular officers are the first line of defense against consular fraud. When consular officers are suspicious of an applicant or the documentation used to support an application, they may refer the case to an antifraud officer at the post for investigation.
Page 25 PREV PAGE TOP OF DOC Our overseas antifraud efforts are hampered however, as our missions continue to face consular staffing shortages for a variety of reasons. High fraud posts are unable to attract enough experienced antifraud officers because these posts are generally in undesirable locations with heavy workloads and therefore receive few bidders during the assignment cycle at the Department.
Also, no correlation exists between the fraud level of a post and whether a full-time antifraud officer is assigned to that post. Of the 12 full-time antifraud officers in the Department, only four are assigned to high fraud posts.
Antifraud units also have difficulty retaining foreign service national investigators because these positions are classified at a lower grade level than comparable positions of other agencies. High turnover of such staff who leave for better paying jobs has a negative impact on the effectiveness of antifraud units. Junior Foreign Service officer antifraud training is inadequate. We have found officers who are receiving limited or in some cases no country specific training prior to serving on the visa lines. Also regional antifraud training conducted specifically for consular line and antifraud officers is needed.
In commenting on our draft testimony yesterday, the Department said that it has taken a number of initiatives in response to our audit to improve training in the consular area. Site visits by Washington staff to posts are one method of supporting overseas antifraud operations. Of the 37 overseas site visits made by Washington staff during 1997, only two were to posts ranked in the top 10 high fraud category. The Department has reported it has recently increased its visits to high fraud posts.
Page 26 PREV PAGE TOP OF DOC Antifraud officers at posts are also not provided with adequate guidance to run an antifraud operation. Individuals assigned as antifraud officers are often inexperienced and untrained for the position and do not carry the prerequisite knowledge or background to do an adequate job. For example, at the sixth highest ranked fraud post, the antifraud unit consisted of a part-time junior officer in a rotational position and a newly hired inexperienced foreign service national investigator.
We also found posts that were not analyzing data from their nonimmigrant visa operations for fraud. When applicants are turned away from U.S. borders, documentation detailing the actions is routinely sent to the applicable post. While posts generally review this documentation on a case-by-case basis, few posts we visited ever performed an overall analysis of this information.
I will turn now to OIG's investigations of visa and passport fraud. OIG historically has conducted passport and visa fraud investigations primarily involving employees of the Department who are party to fraud schemes. Many of our investigations involve cooperative efforts with other law enforcement agencies. Fraud involving petition based nonimmigrant visas, such as the H1B visa program, often involves large scale complex investigative operations.
The H1B visa program is an emerging area of program fraud for us. What we are increasingly seeing are cases where brokers are facilitating production of visas approved for individuals to enter the U.S. on the premise that they will assume a highly technical job only to find that the individuals are low skilled workers, slated for employment as janitors or nurse's aides or store clerks in companies that have handsomely paid the brokers. We found our joint investigations with entities such as INS, the Department of Labor OIG, the Department of Labor, Wage Hour Division, the Bureau of Diplomatic Security and the creation of task forces particularly useful and often necessary when dealing with H1B visa fraud. We will continue to pursue these productive collaborative efforts to combat consular fraud. Thank you.
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[The prepared statement of Ms. Williams-Bridgers follows:]
PREPARED STATEMENT OF INSPECTOR GENERAL JACQUELYN L. WILLIAMS-BRIDGERS, U.S. DEPARTMENT OF STATE
Mr. Chairman and Members of the Subcommittee:
Thank you for the opportunity to testify before your subcommittee on nonimmigrant visa fraud. I am pleased to provide an overview of our work relating to consular antifraud efforts in the Department of State, as well as some of our activities as they relate to OIG visa fraud investigations.
Each year, millions of individuals apply for passports and visas at the more than 230 U.S. embassies and consulates throughout the world. During FY 1998, our overseas missions processed over 311,000 passport applications, 700,000 immigrant visa applications, and over 7 million nonimmigrant visa applications. Antifraud units at overseas posts conducted over 142,000 consular fraud investigations.
Attempts to falsify, alter, or counterfeit U.S. visas or passports, or obtain genuine documents by fraudulent means are a constant problem both within the United States and overseas. Fraud associated with these official documents focuses on either the document itself through counterfeiting or altering it, or on the issuance process through trickery or bribery. Defeating these efforts requires secure documents that are difficult to counterfeit and easy to detect when altered. Additionally, countering fraud requires competent and honest officials who are well trained and informed about common methods of fraud. People are willing to pay a tremendously high cost to obtain entry into the United States. Depending on the locale, quality, and type of a counterfeit visa, the cost can range anywhere from $1,500 to $5,000.
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The Department has faced significant challenges in its visa processing operations over the years. Since 1987, immigrant and nonimmigrant visa processing has been listed as a material weakness in the Department's annual Federal Manager's Financial Integrity Act report. The Department has cited unfilled computer needs, insufficient consular staffing, and inadequate interagency exchanges of intelligence on inadmissible aliens as problems that create a greater likelihood of fraud by weakening management controls over consular operations.
Since 1988, my office has also identified a number of weaknesses in the Department's consular operations, particularly in the areas of staffing, training, and program management. Currently, my office is reviewing the Department's consular antifraud programs. While we have not yet issued a final report, my statement includes observations based on our ongoing review.
In recent years, the Department has made significant progress in enhancing visa and passport processing operations. It has introduced a photodigitalized passport, enhanced data sharing via the Interagency Border Inspection System, installed modernized consular systems worldwide, improved effectiveness of the namecheck system, increased efforts to counter document fraud, and is introducing a more secure border crossing card in Mexico. The Department reports that its TIPOFF program, using all-source, U.S. intelligence information, has been used to deny U.S. visas to over 400 terrorists since 1997. In addition, the Office of Consular Fraud Prevention Programs has shifted focus from looking at individual fraud cases to identifying systemic fraud-related issues across a large number of cases. The Department has also developed a model for ranking high-fraud posts and now issues a monthly magazine devoted to global and regional fraud trends.
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In my statement today I will discuss ongoing challenges the Department faces in preventing consular fraud. These include staffing shortages in key areas, inexperienced staff, and insufficient training for consular line officers. I will also address problems in the management of antifraud programs including a lack of support for overseas post operations, insufficient analysis of data to provide fraud trends, and inadequate supervision in antifraud units overseas. Finally, I will discuss our investigative work as it pertains to passport and visa fraud cases. My discussion of the Department's antifraud efforts is not limited to nonimmigrant (NIV) fraud, but rather applies more broadly to all types of consular fraud.
The Department's antifraud programs are designed to deter applicants, including terrorists, organized criminals, drug traffickers, foreign smuggling rings, and others wanting to illegally immigrate to the United States, from illegally obtaining visas or passports. In the Department, the Office of Consular Fraud Prevention Programs is responsible for developing policies and programs to ensure the integrity of U.S. passports and visas and to prevent consular fraud; coordinating passport, visa, and consular cases involving document fraud; acting as a liaison with other government agencies on fraudulent matters; and providing antifraud training for passport agents and consular officers.
At overseas posts, consular officers are the first line of defense against consular fraud. When consular officers become suspicious of an applicant or the documentation used to support an application, they may refer the case to the antifraud officer for investigation. The antifraud unit will attempt to verify the applicant's identity and the application documents by phone, mail, site visits, or a combination of these techniques.
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In 1997, the Assistant Secretary of Consular Affairs testified before your subcommittee, and cited the importance of adequate staffing levels to effective fraud prevention. My office's 1995 report on the nonimmigrant visa process, and 1997 report on the machine readable visa program also stressed the importance of staffing and identified problems related to inadequate staffing levels for consular operations.
Overseas consular offices and antifraud units continue to face staffing shortages. High-fraud posts are not able to attract enough experienced consular officers, or enough full-time, experienced antifraud officers because these posts are generally in undesirable locations and have heavy workloads. In addition, no correlation exists between the fraud level of a post and whether that post has a full-time antifraud officer. In the course of our work we have found that many high-fraud posts lack full-time antifraud officers, while many moderate- to low-fraud posts employ such officers on a full-time basis. Of the 12 full-time antifraud officers in the Department, only 4 are assigned to high fraud posts.
Antifraud units also have difficulty retaining Foreign Service national (FSN) investigators because investigator positions are classified at a lower grade than investigator positions for other agencies. High turnover of such staff, who leave for better paying positions, has a negative impact on the effectiveness of antifraud units.
The Department also needs to better match the expertise of its staff with antifraud program priorities and workload. The overwhelming numbers of antifraud investigations relate to visa applications at overseas posts, however the majority of staff has experience working primarily in domestic passport operations. In addition, a 1995 reorganization of the Office of Consular Fraud Prevention Programs changed staff responsibilities from reviewing individual cases to identifying trends and providing operational support. Many employees did not have the skills necessary for the new responsibilities.
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At overseas posts, inexperienced consular officers often rely too heavily on antifraud unit staff for routine cases, limiting the time antifraud staff can devote to more serious antifraud efforts. At posts we visited, we found a number of routine visa fraud cases referred to the antifraud units that line officers should have been able to recognize and handle themselves. These types of fraud cases were forwarded to the antifraud unit partly because posts lacked clear guidelines for case referrals. Also, insufficient training and experience caused consular officers to question their own judgement.
Inadequate training for consular officers has been a problem identified in several past OIG reports. Our ongoing review of the Department's consular fraud prevention programs has focused on the antifraud training provided to junior officers and passport specialists, antifraud officers and passport fraud managers, and antifraud unit FSN investigators. While the Department has made improvements in its antifraud training efforts, deficiencies still exist.
Antifraud training for the junior officers is inadequate. The Department's basic consular course, which all consular officers are required to attend prior to departing for post, contains a 4-hour antifraud training segment. Because fraud varies from country to country, this training segment is general in nature. The Department relies on posts to provide country-specific antifraud training. We found that officers were receiving limited, or in some cases, no country-specific antifraud training prior to serving on the visa lines. Instead, officers were expected to learn on the job. As a result, we found that officers did not have confidence in their ability to decide whether to approve visas and were routinely sending applications to the antifraud unit, overwhelming the antifraud officers with routine cases that should have been dealt with on the line.
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In response to OIG's ongoing review, the Department has already made some improvements to its antifraud officer training. The Department has initiated a 1-week course for antifraud officers, which it plans to offer annually. Prior to this there was no specific training related to this function. While this training is a good initiative, the Department needs to ensure that those antifraud officers assigned to high fraud posts attend this training. The Department has also initiated a series of regional training conferences for FSN antifraud unit investigators. This is the first formal training for many of the investigators.
The Department needs to expand the concept of regional training to the antifraud officers. Although the Department frequently offers regional training conferences to deliver and reinforce training for many jobs overseas, with the exception of one post-initiated effort, no regional training has been devoted specifically for consular antifraud officers. Regional training would help improve and coordinate posts' antifraud efforts by disseminating regional fraud trends and patterns that may otherwise go unnoticed, allowing officers to share best practices and unique antifraud tools or techniques, and improving communication among the officers.
FRAUD PROGRAM MANAGEMENT
Support to Overseas Posts
The Bureau for Consular Affairs is responsible for providing antifraud guidance and support to passport agencies and overseas posts. Site visits by Washington staff to posts and passport agencies are one method of support by identifying and correcting antifraud operational deficiencies, providing training, obtaining hands-on knowledge of fraud trends, and establishing working relationships between the Department and the post or passport agency visited. However, site visits are infrequent and rarely include visits to those posts with the highest fraud.
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Instead of prioritizing site visits based on the fraud level, posts were being selected based on requests from a post and on invitations to consular or other conferences. For example, of the 37 overseas site visits made by Washington staff during FY 1997, only 2 were to posts ranked in the top 10 high-fraud category, and only 4 were ranked from 11 to 20 for high fraud. When site visits have been conducted, the quality of the visits has been inconsistent, since there are no standardized written procedures for reviewing the operations or reporting the results of the visits. As a result of the lack of visits to these locations, deficiencies in antifraud operations continue, unnoticed by the Department. By neglecting to make site visits, the Department missed opportunities to improve its understanding of field operations and to train entire consular sections and passport agencies. More recently, the Department has conducted site visits to more high fraud posts such as Manila, Kingston, and Santa Domingo.
Antifraud officers at posts are also not provided with the basic guidance needed to run an antifraud operation. Officers assigned as antifraud officers are often inexperienced and untrained for the position and do not have the knowledge or background to do an adequate job. Few posts overseas maintain fully-staffed antifraud units, therefore officers must generally start from scratch in developing procedures. For example, at the sixth highest ranked fraud post, the antifraud unit consisted of a part-time junior officer in a rotational position and a newly hired, inexperienced FSN investigator. Antifraud officers at posts we have visited want to perform their jobs effectively but were frustrated by the lack of guidance. Lack of guidance resulted in serious management deficiencies, such as inadequate supervision of FSN investigators, insufficient or nonexistent case management tracking systems, poorly documented investigative files, and failure to set workload priorities and control workflow.
Page 34 PREV PAGE TOP OF DOCData Analysis and Verification
We also found that posts were not adequately monitoring their nonimmigrant visa operations for fraud. There are several methods by which this can be done such as: analyzing Immigration and Naturalization Service data on applicants turned away at the border; sampling prior issuances to determine whether the applicants returned to the host country as required; or routinely verifying the return of applicants who obtained visas under the posts' referral programs.
When applicants are turned away from U.S. borders, documentation detailing the actions is routinely sent to the applicable post. While posts generally review this documentation on an individual case basis, few posts we visited ever performed an overall analysis of this information. One post began doing this at our suggestion and subsequently reported back that its analysis had helped develop information on a smuggler who was able to enter the United States five times on a photosubstituted Machine Readable Visa. The analysis also led to the arrest of two visa vendors, provided leads for future investigations of certain travel agencies, and resulted in post's restricting the use of the drop box for certain other suspect travel agencies. The review also identified operational weaknesses on the visa line and helped the antifraud officer to focus the training of the line officers. In fact, this particular post ended up recommending such analysis to the Department as a best practice.
Conducting samples of prior issuances to identify which applicants remained illegally in the United States is also a method to monitor fraud. These reviews, called validation studies, are recommended by Washington as a best practice, but in actuality are rarely conducted by posts. Those posts that have conducted studies have been able to use the information to identify which categories of applicants that are higher risk and therefore require interviews, and which categories of applicants can have interviews waived. In many cases, this not only helps to identify fraud patterns and trends, but also helps to streamline nonimmigrant visa operations by reducing the number of applicants who are required to appear in person. The Department has reported that it has completed a statistical sampling model for validation studies, and has piloted it successfully at six posts. However, unless the Department has an enforcement plan, effective implementation of this practice by posts is doubtful.
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Consular sections often use referrals from travel agencies, businesses, universities, and U.S. personnel at post to facilitate visa processing. This allows low-risk applicants to bypass the interview process, thereby relieving consular officers of heavy workloads, facilitating the visa process for host country officials, and allowing officers to help important contacts. These programs, however useful, are extremely vulnerable to fraud and need to be closely monitored for noncompliance and abuse. We have found that posts rarely conduct spot-check verifications to determine whether the applicants remained in the U.S. illegally.
Antifraud Unit Supervision
Supervision over FSN investigators is lax at many posts, often resulting in internal malfeasance. Investigators are especially vulnerable because of the independent nature of their day-to-day work and their frequent direct contact with those people who are committing fraud. American officers rarely, if ever, accompany the investigators on their field investigations. Other supervisory controls are often lacking. Officers often do not control the investigative process by establishing priorities, assigning cases, and reviewing investigative reports, but instead delegate this function to the supervisory investigator.
These weaknesses can often be attributed to the overall lack of full-time antifraud officers at posts. Antifraud responsibilities are often ancillary and therefore officers have little time to focus on antifraud work. As a result, there have been several instances of malfeasance, which have been identified through outside sources, not through management controls. At one such post where my office identified serious supervisory deficiencies, two of the investigators were subsequently fired due to evidence of visa fixing.
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OIG INVESTIGATIONS OF PASSPORT AND VISA FRAUD
OIG is mandated to prevent and detect waste, fraud, and mismanagement. Specific allegations or other information indicating possible violations of law or regulation are investigated by OIG special agents supported by experts from other OIG offices as appropriate. For the most part, OIG's investigative caseload is reactive.
The Office of Investigations, for its part, historically has conducted passport and visa fraud investigations, primarily targeted against employees of the Department who are part of these schemes. Often the investigations involve cooperative efforts with the Department's Bureau of Diplomatic Security and with other law enforcement agencies.
Visa and passport fraud currently comprises over 25 percent of the cases being investigated by OIG. Our cases include a broad range of malfeasance related to consular fraud. For example, in 1998, OIG investigated a case involving ''marriages of convenience'' for illegal aliens currently in the United States. OIG, working with INS and the Federal Bureau of Investigation, identified the marriage broker who had arranged at least 30 sham marriages between aliens and U.S. citizens over a 5-year period.
In 1996, a joint investigation conducted by OIG and INS uncovered an operation run by an individual who was illegally obtaining nonimmigrant tourist visas, selling fraudulent documents and U.S. passports, and smuggling aliens into the United States. Also in 1996, OIG conducted a joint operation with INS, on a case involving visa swindling, forgery, and passing fraudulent identity documents to defraud the INS. Using an undercover operative, INS and OIG purchased numerous documents and a fraudulent political asylum package. It is believed that the subjects filed over 1,200 false political asylum applications, with unreported income from the scheme in excess of $1 million. In a passport fraud case, OIG conducted an undercover operation in which an individual sold a fraudulent passport to a confidential informant. The individual had sold at least 20 such passports for $3,000 each.
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Some of OIG's investigations also include fraud allegations in the H1 nonimmigrant visa program. These investigations are typically brought to our attention by informants and through contacts with other Federal, State and local law enforcement agencies. The H1B program permits eligible foreigners to enter the U.S. temporarily to perform services in a specialty occupation that requires the theoretical and practical application of a body of highly specialized knowledge to fully perform the occupation. It may require a baccalaureate degree or equivalent experience in a specific occupational specialty.
Fraud involving the H1 visa program often involves large scale and complex operations. Joint investigations and the creation of task forces are particularly useful and often necessary when dealing with H1 visa fraud. Moreover, the magnitude of the smuggling operations usually associated with these fraud cases requires significant investigative resources.
In our latest semiannual report, I reported on a case involving selling fraudulent H1B nonimmigrant visas to illegal aliens. A joint investigation was initiated with the U.S. Customs Service, INS, the U.S. Social Security Administration's Office of Inspector General and my office. The investigation developed evidence that an individual, posing as a financial and legal consultant in a storefront office, was manufacturing fraudulent H1B visas, as well as INS entry stamps and INS employment authorization stamps, and was inserting them into passports supplied by the subject's customers. The passports containing the fraudulent documents would then be used as documentation in support of applications for social security cards and driver licenses. Judicial proceedings are pending in U.S. District Court on this matter.
Page 38 PREV PAGE TOP OF DOC This concludes my statement Mr. Chairman. Thank you for the opportunity to testify before the subcommittee. I look forward to answering any questions you may have.
Mr. SMITH. Thank you.
Mr. Bromwich, let me address a few questions to you, and let me say to Congressman Pease I am going to try to finish up in 2 or 3 minutes and then yield to him.
Mr. Bromwich, you mentioned in your testimony and alluded to it verbally a minute ago that the INS and the State Department and all of us can benefit from a better exchange of information electronically and otherwise. Do you think the INS and the State Department have been making improvements in that type of communication to avoid future visa fraud?
Mr. BROMWICH. My sense is that there are improvements in the process, but we have a long way to go. This is just one of the areas where data exchange between the State Department and INS are so important to protect our immigration system.
Mr. SMITH. What are the consequences of that long ways to go in the communications between State Department and INS? What are the risks involved?
Mr. BROMWICH. I think we currently have holes in our systems where information gathered by State Department consular posts that reflect concerns and problems with individual applicants are not passed along to the INS. This means that when people present themselves and presents their visas, the INS inspector is not aware of the information. If the information does not go to INS, it is not available to be used for checking up on the visa holder later if there are concerns about whether the person who holds the visa is in fact behaving consistently with the purposes for issuing the visa and leaves after the time the visa expires. So that information has to go to INS for those two purposes so that the inspector on the line has the information that he or she needs to do a good job of examining the visa holder. Second, at least as importantly, to provide to the INS for its internal enforcement efforts.
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Mr. SMITH. Is there any good excuse why that communication does not exist? Is it technologically impossible or impractical or is it just a lack of initiative?
Mr. BROMWICH. It is not impossible, it is not impractical. I am not saying that there are not technical difficulties, but I think both agencies can and must work harder to overcome those difficulties.
Mr. SMITH. So part of visa fraud is of our own doing as far as not communicating better?
Mr. BROMWICH. I think that is right.
Mr. SMITH. A couple of years ago you issued a report and pointed out accurately that there are two groups of individuals who are culpable when it comes to visa fraud, the organizations or entities that produce the documents and the individuals who knowingly either use fraudulent documents or fraudulently obtain documents. At that point you said that the INS did not prosecute or deport and did not flag or track the individuals who are arguably guilty themselves of visa fraud. Has there been improvement in that area?
Mr. BROMWICH. There has been in the sense that there is now a flagging system, such that the beneficiaries of such visa fraud schemes are now flagged in the INS system. Whether that has had real consequences in terms of cutting off the benefits to those individuals, much less more draconian consequences, is not something that we have been able to look at yet.
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Mr. SMITH. Does the INS itself prosecute or deport any of these hundreds of individuals that are sometimes part of these scams?
Mr. BROMWICH. If they are simply beneficiaries of the scams, the answer is no. If they are more active middlemen, brokers, the answer is sometimes yes.
Mr. SMITH. And those thousands of people who have taken the advantage and benefited from visa fraud are still allowed to remain in the United States?
Mr. BROMWICH. That is correct.
Mr. SMITH. Thank you. Let me yield to the gentleman from Indiana, Mr. Pease.
Mr. PEASE. Mr. Bromwich, I was going to ask questions in the same area that the chairman did, and they may be better directed to the Justice Department folks that are going to testify later, but why is it that we are not prosecuting folks that are the beneficiaries of illegal activity?
Mr. BROMWICH. My sense is that it is primarily a resource issue, and that INS views the people who are most culpable in the schemes as the organizers and the people who actually reap large numbers of dollars. I think if you asked both people in INS and people who are in U.S. Attorneys Offices and the Criminal Division why they don't make more cases against the individual beneficiaries of these scams, they would say that the system would be flooded with such cases. There are simply too many of them around to allocate the necessary resources to make those cases. I am not in a position to evaluate that claim, but that is certainly the claim that is made. And to preserve resources, what they try to do is go after the heavy hitters, the people who organize these schemes and benefit from them in a big way financially.
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Mr. PEASE. And I will pursue that. We are going to have a hearing later on the visa waiver pilot program, but you mentioned it in passing, and I thought I heard you say that it was in your view one of the bigger problems in this area of fraud. Did I hear that correctly?
Mr. BROMWICH. You did, and I deliberately did not focus on it in this testimony because we have just issued a report a couple of months ago which I will be happy to supply to you on that, and I understood that the committee is going to be holding hearings a year from now when it comes up for reauthorization.
Mr. PEASE. And I would appreciate having that.
Mr. BROMWICH. We will do that.
Mr. PEASE. Thank you.
Ms. Williams-Bridgers, can you explain why there is not a correlation between the posts with high incidences of fraud and the posting of antifraud officers?
Ms. WILLIAMS-BRIDGERS. The Department has just begun ranking its posts according to the level or incidence of fraud. We hope they will be using those rankings as a method of determining resources to be allocated in the future and as a source of information in determining who needs training, and when fraud program management personnel from Washington need to go out to assist the post. To date there has been no systematized way of determining which post had the highest level of fraud and therefore needed more attention in the Department.
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Mr. PEASE. I am also very much interested in your comments on H1B fraud, particularly given the tremendous attention that was paid to that in the last year. Has there been any work with or work contemplated with all those companies that came and lobbied us for more H1B visas to ensure that is what they are actually used for? What I heard you saying, is that is not what they are all being used for.
Ms. WILLIAMS-BRIDGERS. We have not nor do I know if the Department has been working specifically with those companies. Our investigative work with regard to H1B visa fraud cases has been reactive, reacting to allegations that we have received. We have been increasingly faced with more allegations and cases recently in the H1B area. For example we have three ongoing cases now whereas in the past 10 years we only had two. Apparently there are a number of reasons why we are seeing more of these types of cases, but we have not had direct contact with companies.
Mr. PEASE. Thank you. Thank you, Mr. Chairman.
Mr. SMITH. We are going to need to go vote. Ms. Williams-Bridgers, I just wanted to say to you, and you are not going to have time to respond, but I appreciate the good suggestions you have, or at least there were criticisms combined with solutions as far as the high fraud consular posts. I won't ask you to comment why officials don't aspire to go to the high fraud posts, and instead go to Paris or London or wherever they go, but apparently that is improving and you made lots of good points why those high fraud posts should be visited by officials themselves, and I think those are criticisms I hope that the INS will take to heart. It looks like there has been some movement on that as well.
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Let me thank you both for your testimony, and we will now move to the next panel andwhat we are going to do is something unusual. You all are excused. We are not going to recess. We are going to stay in session until the Ranking Member arrives and then she is going to start with the second panel, and I hope will introduce them and we will have a tag team. Thank you.
Ms. JACKSON LEE. [Presiding.] Before we proceed with the second panel, I will present my opening statement and then we will present the panel.
Good morning, Mr. Chairman. I would like to thank you for holding a hearing on the various visa programs for nonimmigrants and the fraud that exists within them.
A nonimmigrant is an alien who seeks temporary entry to the U.S. for a specific purpose. The alien must have a permanent residence abroad for most classes of admission and qualify for the nonimmigrant classification sought. Common types of nonimmigrant visas, NIVs, are those issued for specialty and other employees. Nonpetition-based visa fraud occurs when aliens in a specialty occupation, such as H1B, intracompany transferees and intracompany transferees continuing employment with international firms or corporations overstay their temporary visas in the United States and continue to work at the jobs that they have been recruited to work for by their United States employers.
The student visa fraud category includes academic students and exchange students who sometimes come to the United States with the false intent of studying and continue to overstay their visas.
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I am aware, Mr. Chairman that a common type of fraud is to sometimes misrepresent the alien's intention to remain temporarily in the United States and to return to the native country. On some occasions nonimmigrants use false business relationships to gain visas as specialty workers or intracompany transferees. These groups gain employment in the United States by permission, then overstay their temporary visas. Some aliens use their temporary status to begin criminal activities on a prolonged basis.
I would like to say from the onset that I not only oppose visa fraud on all levels but I am very interested in learning what the State Department and the INS are doing to wipe out nonimmigrant visa fraud. I will also be interested in learning how the Department of State is responsible for the issuance of these visas, and what strategy has been implemented to combat the potential for fraud. I am sure in their testimony they have ably and amply indicated that they are all-out to fight against this kind of fraud.
The fraud in these programs is more so the exception and not the general rule. However, the INS has estimated that there are as many as 5 million illegal aliens currently residing in the United States. While not the primary source of illegal immigration to the United States, the visa fraud is a matter of concern.
According to the GAO, illegal aliens are creative in their use of fraudulent documents to gain entry into the United States. A common practice is to paste the photo of an ineligible individual into a stolen passport with a valid visa or otherwise alter the data on the visa.
Page 45 PREV PAGE TOP OF DOC Criminal passport and visa fraud arrests by the State Department's Diplomatic Security Service have more than doubled since 1992. Problems with visa document fraud and INS document fraud will probably always be with us. Criminals will always find a way to alter or steal a document. We will not eliminate this problem overnight, but we can try to curtail it.
According to a story in this Tuesday's L.A. Times, a group of Chinese high school students who were in the United States for a one-month study program disappeared at the Los Angeles airport and were found to have been enrolled in new classes. This happens a lot.
Investigations by the State Department and INS and interviews with the parents indicate that the incident at the airport in this instance was a glitch in a sophisticated new immigration ploy parlaying a short-term student visa into potentially a U.S. passport.
According to research done for this same article in the L.A. Times, last year U.S. officials began to notice that more and more high school exchange students were not returning home. All applicants for visas are potential immigrants until they can convince the officer that they will come back home. Lying while applying or entering the country violates U.S. law and is cause for cancelling a visa or curtailing a stay.
On the other side of the coin, I have worked with many of my constituents who have, because of the suggestion or belief that there are a lot of visa overstays, a difficulty in getting visas to enter into this country.
This latest group from China which is missing can be a new generation of parachute kids; that is, youth dropped alone into the U.S. to grow up here and to become naturalized by sponsorship or a relative or company or by marriage. While in the U.S. they are cared for by a relative or family friend.
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Section 641 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 mandates the INS to implement a system to collect information on and track foreign students in the United States. I am very interested in hearing from our witnesses from the INS and State Department about the status of such tracking system, which I understand is known as Coordinated Interagency Partnership Regulating International Students, or CIPRIS system.
It is absolutely essential that the State Department and the INS work together in solving this problem. The INS and the Department of State must also be on the lookout for fraud with the L and L1 visas, which are intended to permit established international businesses to move personnel into the United States on a prolonged basis with permission to work.
It has been reported that organized crime enterprises, including those based in Russia, China and elsewhere in the Far East, have set up staged international businesses and successfully obtain L visas to move their operatives into the United States where they engage in drug trafficking, financial crimes and a wide range of other racketeering activities. In some cases the fraud is used simply as a means of smuggling an intended immigrant into the United States through apparently legal means.
I hope, Mr. Chairman, we can work cooperatively in the true spirit of bipartisanship to eliminate visa fraud and make the necessary changes in the law that must be made so that those who legally apply for their visas can do so without the cloud of the possibility that they are intending to perpetrate fraud when they come to the United States.
However, I would like to say for the record that although there is ample and substantial evidence of fraud existing in these visa programs, this hearing should in no way be used as a vehicle to discourage talented men and women from different countries from coming to the United States to exchange creative thought and ideas and businesses from temporarily moving their employees who contribute to our economy and our way of life and work alongside of our American workers. We should discourage fraud but not discourage fair and equal opportunity either.
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Thank you, Mr. Chairman. I will be participating in this hearing briefly. I will stay as long as I can. The bankruptcy bill is on the floor, and if I am not in the room I will be attending to that business with respect to that legislation.
Panel 2, we have Mr. Williams A. Yates, Director of Immigration Services, Immigration and Naturalization Service, accompanied by Gary Bradford, Assistant Director, Texas Service Center, Immigration and Naturalization Service; Nancy Sambaiew, Deputy Assistant Secretary for Visa Services, U.S. Department of State, Bureau of Consular Affairs; and Jill Esposito, Post Liaison Division, Visa Office, U.S. Department of State, Bureau of Consular Affairs.
I would assume that we want to start with Mr. Yates. Thank you very much for being here this morning.
STATEMENT OF WILLIAM A. YATES, DIRECTOR OF IMMIGRATION SERVICES, IMMIGRATION AND NATURALIZATION SERVICE
Mr. YATES. Thank you, Ms. Jackson Lee, and members of the committee for the opportunity to appear before you today to discuss immigration document and benefit fraud. I last spoke before the committee on May 20, 1997. Today I would like to discuss the Immigration and Naturalization Service's investments and initiatives in fraud detection since that time.
INS encounters two types of immigration benefit fraud, fraud relating to applications or petitions for immigration benefits and document fraud. A very important aspect of immigration benefit fraud involves the purpose of the fraud. In most cases the end goal of the fraud scheme is simply to support an individual's entry or ability to remain in the United States.
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A second and more problematic purpose of the benefit fraud is to facilitate the operation of criminal enterprises within the United States. In the latter instance, the fraud is not the end point but rather the vehicle to support other illegal activities. An example of this type of fraud is a drug organization that seeks permanent resident cards or employment authorization documents to facilitate the criminal activities of its couriers and drug gang members.
The nonimmigrant visa petition process for temporary professional workers, managers and those possessing specialized knowledge makes us particularly vulnerable to well organized fraud schemes. For example, following the collapse of the Soviet Union, INS witnessed an influx of L1 petitions for intracompany transferees from former Soviet bloc countries. Over time, we learned that many of these petitions, and they were well-documented petitions, were fraudulent and were filed as part of an organized effort to establish illicit businesses in the United States. In that instance, INS instituted cooperative efforts with the FBI and the State Department to deny those petitions and to prosecute those who were able to enter the United States under the L category.
The H1B temporary professional worker category benefits American companies by supplying critically needed professional workers, but also presents opportunities for fraud. The typical H1B fraud involves either individuals who have overstated or falsified credentials, or it involves schemes where nonimmigrants work at companies other than that of the petitioning employer. This occurs both with and without the knowledge of the petitioning employer.
I would like to move on now to five key components of our current antifraud efforts: fraud detection initiatives at our four service centers, joint antifraud efforts with the State Department, the development of the coordinated interagency partnership regulating international students, known as CIPRIS, the forensic document laboratory of the INS, and finally creation of new immigration documents with heightened security features.
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Fraud detection at the service centers. This concentration of labor petitions at the service centers permits INS greater control and consistency in processing, but presents some unique challenges and opportunities for fraud. The challenges result from the fact that the centers are remote and decisions are based solely on the written record as opposed to in-depth interviews. Opportunities present themselves, however, because of investments that INS has made in the creation of antifraud units at the service centers where petition information may be retrieved from INS automated systems. This permits INS to conduct computer assisted link analysis on a regional basis. Intelligence research specialists at the four centers provide support for fraud detection, then continue that support through the investigative and prosecutorial phases of fraud investigations.
Another key component of our effort is joint antifraud efforts with the State Department. INS and the State Department have joined together in a number of antifraud efforts with the goal of preventing fraudulent nonimmigrant visa petitions from being approved.
More H1B visas are issued in India than anywhere else in the world. The American Consulate in Chennai, India process 20,000 H1 visas last year. A joint effort between the Department of State and INS was initiated approximately a year ago to look into suspected fraud cases. Of the 3,247 cases referred from the service centers to the American Consulate in Chennai, the Department of State was unable to verify the authenticity of 45 percent of the claimed education and experience. In these cases, working with the Department of State, INS issued a notice of intent to deny those petitions providing the petitioners with an opportunity to provide additional evidence. I might add that 21 percent of the cases referred, it was determined that they were fraudulent and INS could move directly to denials in those cases. This joint effort with the Department of State continues.
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We talked about students and the current inability of our systems with INS and the Department of State to carefully track students and maintenance of status for students. INS is currently developing with the Department of State the Coordinated Interagency Partnership Regulating International Students, and that is known as CIPRIS. INS and the Department of State have encountered visa fraud in the current paper based process for establishing eligibility of F, M, and J students or exchange visitors. The current system is vulnerable to forged eligibility forms. CIPRIS is an electronic interactive process that has great potential to dramatically reduce student visa fraud. The system requires the school or sponsor to create the eligibility record and to transmit it to the INS via the Internet. The CIPRIS system will then verify the legitimacy of the school or sponsor, verify the legitimacy of the designated official, as well as verifying the program information listed on the alien's petition against that record.
Upon completion of the verification process, a notice will be sent to the alien advising him or her to apply for the nonimmigrant student visa. At the consulate, the State Department officer will have full access to CIPRIS, will verify information in the electronic record. If a visa is granted, the alien's record again will be updated at that stage and will be available to the inspector at the port of entry when they apply for admission into the United States.
Mr. SMITH. [Presiding.] Are you bringing your remarks to a conclusion here? You are over time. And as I mentioned earlier, in an effort to try to finish up this hearing before the next subcommittee takes over the room, we are going to need to adhere to that 5-minute limit.
Page 51 PREV PAGE TOP OF DOC Mr. YATES. I have further detail in the written record explaining the full CIPRIS system, but let me just finalize my comments by indicating that at every stage of the process, including when the alien reports to the school or if the alien fails to report to the school, this system will track that progress. So we will have complete information at every stage of the visa entry process.
[The prepared statement of Mr. Yates follows:]
PREPARED STATEMENT OF WILLIAM A. YATES, DIRECTOR OF IMMIGRATION SERVICES, IMMIGRATION AND NATURALIZATION SERVICE
Thank you, Mr. Chairman and Members of the Subcommittee, for the opportunity to appear before you today to discuss this important issue. I last spoke before you on immigration benefit fraud on May 20, 1997. Today, I will discuss the Immigration and Naturalization Services' (INS') investments and initiatives in fraud detection since that time and their current status.
INS' COMMITMENT TO FRAUD PREVENTION AND DETECTION
The INS encounters two types of immigration fraud: fraud relating to applications or petitions for immigration benefits and document fraud. Fraud relating to petitions for immigration benefits (or immigration benefit fraud) is any misrepresentation of fact with the fraudulent intent to gain an INS benefit. Document fraud consists of the creation and or utilization of fraudulent documents to enter and/or remain in the United States. The former is particularly problematic, if undetected, in that it may result in the issuance of valid documents. Immigration benefit fraud has increased both in scope and complexity in recent years. As INS has increased enforcement pressure at borders and at ports of entry aliens have increasingly resorted to immigration benefit fraud as an alternative means to enter and remain in the United States. Although immigration fraud is certainly not new, the volume and complexity of the fraud schemes and the exploitation of the benefit petition process by criminals and criminal organizations generate serious concern.
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During the first half of FY 1999, INS received approximately 158,000 I129s (Petitions for Nonimmigrant Worker) and completed approximately 146,000. INS denied a total of approximately 7% of the 146,000 petitions completed (for all reasons combined). This denial rate is consistent with prior year reports. For all fraud cases, including benefit fraud, Servicewide reports during the first 5 months of Fiscal Year 1999 indicate that presentations for prosecution far exceeded anticipated midyear goals. The actual number of fraud conspiracy investigations presented for prosecution Servicewide was 164 cases. These cases accounted for the presentation of 247 principals for prosecution. For those fraud prosecutions involving immigration benefit fraud, the number of immigration benefit petitions related may be one or 10,000. INS has also increased Special Agent attention to fraud activities. Based on the hours reported during first 6 months of FY 1999, INS will devote the time of nearly 200 Special Agents to fraud.
The INS is committed to detecting fraud. The INS has increased programs to combat and prevent fraudulent visa petitions and student petitions that would result in the issuance of valid immigration documents if approved. INS has concentrated its efforts at detection of fraudulent visa petitions the Service Centers where the majority of nonimmigrant worker petitions are filed. The INS is also piloting a new database system for student petitions that may prove to be a powerful safeguard against student visa fraud. The INS also has several initiatives underway to combat and prevent the creation of fraudulent documents, including the Forensic Document Laboratory and the Integrated Card Production System.
FRAUDULENT BENEFIT PETITION DETECTION AND PREVENTION
Immigration Benefits Fraud in Nonimmigrant Petitions
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While improvements in forensic document capability and improvements in the technology used to create permanent resident cards, and other INS documents, has combatted document fraud, these efforts have created potential for fraud in petitions for H1 (temporary skilled workers) and L1 (intercompany transferee, specifically designed for large, multinational companies) nonimmigrant visa programs. Prior to these anti-fraud document efforts, immigration documents used to be much more widely available in the counterfeit market.
INS' Service Centers receive approximately 98% of all nonimmigrant worker petitions filed with the Service. As a result, they have created anti-fraud operational units to detect and investigate fraudulent applications. The Service Centers have initiated several anti-fraud measures, including: a check by the Service Center of the requesting company and address in INFOTEK (a commercially available database of public source information that provides corporate record information, zoning for a provided address, etc.), site visits by either the Service Center or INS office closest to the petitioning company, and computer assisted link analysis. These measures are employed when the Service Center receives petitions from small or new companies with little or no prior petitioning record, and/or companies having problematic past records with the Service. During site visits INS verifies the legitimacy of the company and that the beneficiary is actually employed there and performing the duties specified in the petition. The Service Center's Special Agents conduct site visits in the local area for H1 and L1 petitions. For companies outside the Service Center commuting area, the Service Center transfers the case to a Special Agent assigned to the local office with jurisdiction. The Service Centers have substantially increased their ability to use automated systems to conduct immigration benefit fraud link analysis. Because the four Service Centers each cover large geographical areas, opportunities exist to uncover large scale regional fraud conspiracies. Intelligence research specialists assigned to the Service Centers use commercial database tools as well as data from INS systems to link individual fraud cases, then continue to provide support for field investigations and prosecutions.
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The H1B category requires a baccalaureate or higher degree in a specialized field. Currently 115,000 persons are allowed to enter the United States (U.S.) annually under the H1B classification. The individual must work in the specific job and for the requesting company. INS has received and processed these petitions for many years. Recently, however, annecdotal reports by INS Service Centers indicate that INS has seen an increase in fraudulent attempts to obtain benefits in this category. These fraud schemes appear to be the result of those wishing to take advantage of the economic opportunities available in the U.S. The INS encounters 2 primary types of H1B fraud: either the fraud on the part of the requesting employer and/or the beneficiary.
Examples of fraud associated with the requesting company include instances where: the company is non-existent and/or operating from a post office box, residence, apartment, or many companies are sharing one of the above. Often the requesting company acts as an employment agency, petitions for the foreign workers, but then attempts to find them other jobs, with associated additional fees, paid for by the intending company. In some cases, an existing company petitions for employees, but terminates them on arrival, enabling an otherwise ineligible person to enter into the U.S. These actions are accomplished both with and without the beneficiary's advance knowledge.
Beneficiary fraud involves the falsification of either the education or prior job experience of the petitioner. This information is difficult for INS to verify as it originates from foreign sources and the format or form for submission by foreign businesses and schools is not standardized. These documents are easily falsified and, currently, the INS must rely on the American Consulate personnel as the means of verification. The employer may not know that the information is false.
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As an example, more H1B visas are issued in India than anywhere else in the world. The American Consulate in Chennai, India (AmCon Chennai) processed 20,000 H1Bs last fiscal year, more than any other post in India. As early as 1996, AmCon Chennai estimated that a significant percentage of their H1B petitioners, almost all of whom were computer programmers, were misrepresenting their academic or professional credentials. The INS Service Centers worked with the AmCon Chennai in a joint effort aimed at verifying claimed education and work experience from the petition submitted to the INS. These joint efforts were initiated one year ago. Between the inception of the joint effort and March 31, 1999, of the 3,247 cases referred to AmCon Chennai's anti-fraud unit, they were unable to verify the authenticity of close to 45% of the claims made on the petitions. Twenty-one percent of the work experience claims made to the INS were confirmed to be fraudulent in this investigation. In the cases where we are unable to verify the authenticity of the claims, INS issued an ''intent to deny'' to the petitioner, providing the petitioner with the opportunity to refute or overcome the presumption through countervailing evidence. The investigation and joint effort continues.
The L1 category was designed to allow a foreign company to executive or managerial personnel to a U.S. subsidiary. Some examples of fraud schemes found in this category include instances where the petitioning company is started in the U.S. with no parent company overseas, or where the petitioning company does not exist. In the first instance the parent company is either nonexistent, or has no relationship to the U.S. subsidiary. Often, multiple companies will use the same address, will lease store fronts, or will operate from post office box addresses, residences, or apartments.
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INS often relies upon consular offices and embassies overseas to verify the foreign parent company information. Nationals most commonly encountered by the INS utilizing the above L1 schemes are from China, Russia, and Brazil. Of the site checks done by the Texas Service Center on 108 Chinese companies in the Houston, TX area that had submitted petitions for L1 employees, 37 were determined to be involved in fraudulent schemes similar to those listed above, and the case was referred to the adjudications section with a recommendation to issue an ''intent to deny''.
Coordinated Interagency Partnership Regulating International Students (CIPRIS)
The INS and the Department of State have encountered visa fraud in the current, paper-based process for establishing visa eligibility for F, M, and J student or exchange visitor and their dependents. Because there is no system against which the consular officer can check, and because verifying the authenticity of each individual form I20 (Verification of Nonimmigrant Student Status Eligibility) or IAP66 (Certificate of Exchange Status Eligibility) is impractical, some aliens may use forged forms and counterfeit supporting documents to obtain F, M, and J visas. In cases where the forged forms and/or counterfeit supporting documents are suspect or are submitted to posts with historically high fraud rates, then individual beneficiaries are interviewed. Consular officers will check the beneficiary's eligibility documents with the alleged school or exchange sponsor to verify the legitimacy of the I20/IAP66.
Once issued a visa, the alien travels to the United States and applies for admission through a Port of Entry (POE). The alien is admitted on the basis of a valid visa and the I20/IAP66 forms and supporting evidence. The POE transmits the master copy of the form I20/IAP66 for data entry into either the INS' Student Schools (STSC) data system or the United States Information Administration's Exchange Visitor Information System (EVIS). Once the master copy of the I20/IAP66 has been data-entered, the school or exchange program reconciles the list against their records. Some aliens, posing as F, M, or J students or exchange visitors are, therefore, able to enter the U.S. because these systems are not connected to consulate posts or POE's. INS is usually alerted to this fraud long after the malafide alien has been admitted to the U.S.
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The Coordinated Interagency Partnership Regulating International Students (CIPRIS) system is an electronic interactive process that has the potential to reduce all F, M, or J visa fraud as described above. In CIPRIS, the school or sponsor creates the eligibility record and transmits it via the Internet to the INS' CIPRIS data system. The CIPRIS system verifies the legitimacy of the school/sponsor, and the Designated School Official/Exchange Program's Responsible Officer, as well as the program information listed on the alien's petition against this record, and sends a notice to the alien overseas. The alien brings the notice to the Consulate, along with evidence in support of their visa petition.
At the Consulate, the consular officer verifies the legitimacy of the alien's record in CIPRIS. If the school/sponsor record is not in CIPRIS at the time of visa petition, the alien's visa petition is denied. If a record exists in CIPRIS, the consular officer then interviews the petitioner and verifies the authenticity of supporting evidence and enters the decision in CIPRIS. If approved, the visa information, passport information, and photo/fingerprint of the alien are downloaded into CIPRIS, and the system notifies the school/sponsor of the alien's visa issuance. At the time the alien appears at the POE for admission, the inspector is able to verify the visa, passport, and appearance of the alien against the data in CIPRIS. The inspector updates the system to reflect whether the alien was admitted, deferred or denied admission. This action results in the notification of the school/sponsor from CIPRIS via the Internet. When the alien enrolls or registers at the school/exchange program, the school/exchange program, via the Internet, updates the alien's record in CIPRIS. If the alien fails to enroll, the school/exchange sponsor updates the alien's record in CIPRIS, and CIPRIS flags the record as a ''no show'' initiating look out procedures by the Service.
Page 58 PREV PAGE TOP OF DOC CIPRIS is a joint partnership effort of the INS, the Department of State, the United States Information Agency, and the Department of Education, working in close relationship to schools, universities and exchange programs. CIPRIS is currently being pilot tested at the INS Atlanta Port of Entry and district office, the Texas Service Center, Department of State and United States Information Agency headquarters, and 21 pilot institutions located in the states of Georgia, Alabama, North and South Carolina.
FRAUDULENT DOCUMENT DETECTION AND PREVENTION
Forensic Document Laboratory
The INS Forensic Document Laboratory (FDL) provides a wide variety of forensic document analysis and support services to all INS programs in the enforcement of the immigration laws. Support is also provided to other Federal, State, and local agencies in joint operational initiatives involving immigration fraud. FDL services include: the scientific examination of questioned document evidence; the provision of testimony as expert witnesses in judicial proceedings and hearings; technical advice and assistance in major criminal cases involving fraudulent documents; training programs in the detection of fraudulent documents; the identification of document evidence; the production and dissemination of ''Document Intelligence Alert'' bulletins; collection of document exemplars; real-time assistance via the Photophone network in resolving questions concerning suspect travel documents and identity documents; and guidance to INS Headquarters program managers and foreign immigration authorities on policies and procedures involving document fraud.
Visa fraud is one such area in which FDL staff support INS field personnel. The INS Field Offices request forensic examinations of suspect immigration and identity documents used in status claims. Field personnel also utilize the Photophone network to obtain immediate assistance from FDL Intelligence staff in determining the disposition of suspect documents. In addition, the FDL provides advice and assistance to the Department of State Office of Fraud Prevention Programs and the Bureau of Diplomatic Security in common efforts to enforce the immigration laws.
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The INS Service Centers also have small forensic document labs on site because of the large number of petitions and documents received. These labs are able to focus on the less complex and more common detections and rely on the support and expertise of the FDL for the more complex cases.
Creation of New INS Documents with Heightened Security
Over the last several years, the INS has initiated processes to create new and more secure immigrant documents to both prevent the creation of counterfeit documents and to increase detectability of counterfeit documents. These initiatives include the creation of new permanent resident cards, employment authorization cards, and LaserVisas (in conjunction with the Department of State).
These documents take advantage of improvements in technology; making them more difficult and significantly more expensive to counterfeit.
Recent INS Fraud Prosecution Efforts
The following case scenarios illustrate the variety and extent of immigration fraud that the INS must combat.
In Los Angeles this past November, INS undercover agents executed a search warrant for two storage facilities and seized more than 2,000,000 counterfeit identification documents. These documents included resident alien cards, Social Security cards, and driver's licenses from 9 states. The INS Forensic Document Laboratory has linked counterfeit documents seized in more than 80 other INS cases from across the country as being manufactured by the same organized crime group that was responsible for producing the stockpile seized in the Los Angeles raid. Commissioner Meissner has said of the operation, ''We put out of business what we believe to be the largest organized crime group responsible for manufacturing and distributing phone identification documents in the United States.''
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Also in Los Angeles, a college student from Taiwan was found to be arranging marriages for other F1 students in exchange for the student obtaining a reduction in tuition costs.
An undercover investigation conducted jointly by INS and the Office of the Inspector General led to a 19 count indictment against an Alcohol Tobacco and Firearms Agent, an attorney, and two immigration brokers in March 1998. Those indicted had attempted to bribe an INS officer with $82,100 to obtain resident alien cards for 35 Korean families. The aliens paid $350,000 to obtain the cards to the indicted.
INS is committed to improving our fraud detection and prosecution and is actively pursuing joint ventures with other agencies to better utilize resources and technology. I appreciate the opportunity to testify before you today. I will be happy to take any questions you may have at this time.
Mr. SMITH. I am going to follow up with my questions in regard to that. Thank you very much. I understand that my Texas friend, Mr. Bradford, is just accompanying you and does not have testimony himself.
Mr. BRADFORD. That is correct.
Mr. SMITH. Thank you for being here.
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STATEMENT OF NANCY SAMBAIEW, DEPUTY ASSISTANT SECRETARY FOR VISA SERVICES, U.S. DEPARTMENT OF STATE, BUREAU OF CONSULAR AFFAIRS
Ms. SAMBAIEW. And I am also from the Panhandle of Texas.
If I may, Mr. Chairman and Congresswoman Jackson Lee, thank you for the opportunity to provide to the subcommittee the views of the Department of State on some of the more problematic aspects of our current nonimmigrant visa specialty worker, intracompany transferee and student visa programs. While the large majority of these visas are issued routinely, our experience shows that worldwide there is a small percentage of fraud in these categories, and in a few geographic locations there are serious problems.
I think it would be useful to give the committee some idea of the magnitude of the job consular officers face in carrying out the visa function. In 1998, approximately 800 consular officers adjudicated 8.1 million visa applications, more than 10,000 applications per officer. Our antifraud efforts must be practical and selective in application. We gain nothing by subjecting bona fide applicants to delays and random investigations. We constantly make judgments about where our vulnerabilities are the greatest and what methods have the greatest pay off.
Today my colleague Jill Esposito and I are going to tell you about real fraud investigations by consular officers which have broken up major fraud scams and have given us invaluable insights into the vulnerability of our highly skilled worker, intracompany transferee and student visa programs.
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Mr. Chairman, the Department of State has a strong antifraud program, with the personnel in all field offices dedicated to addressing fraud concerns. It is centered on the expertise and vigilance of our consular officers who become familiar with the economy and culture of the countries where they are assigned and where they learn to speak the local language. Consular officers examine documents, interview the applicants and make the final determination on visa issuance. In doing so, they use a powerful and constantly improving tool, the consular lookout and support system, our name check database, that has links to the data resources of other agencies. Further, they rely on the support of our Fraud Prevention Programs Office within the Bureau of Consular Affairs.
This office provides training, gathers and shares intelligence on patterns and trends and offers guidance on strategies posts can use to effectively integrate antifraud efforts into their overall consular management.
Given available resources, we believe we are doing a good job in detecting fraud. Perhaps the best evidence of this is the large numbers of illegal immigrants who attempt to bypass our officers completely and pay thousands of dollars to smuggling organizations or for counterfeit travel documents.
Despite these efforts, for every fraud scam we detect, another better one can emerge. That is why we must continue to seek improvements in our methods and resources. Some of our greatest successes have come as a result of cooperative programs with INS, and we intend to continue to work with INS.
Page 63 PREV PAGE TOP OF DOC For example, we would like to work more closely with them on additional data sharing arrangements, especially on the development of an electronic system for secured shared access by our posts overseas to a central INS database of all approved petitions. With regard to students, we are actively participating in the CIPRIS project.
Mr. Chairman, turning to specific problems we encounter in the visa categories that are the focus of today's hearing, we have several general observations to share with the subcommittee that it may find useful as it considers the issue of fraud.
First, in general large well-known national and international companies and institutions, including schools, rarely present a problem, whereas very small closely held companies that have disproportional numbers of nonimmigrant aliens are more problematic. My colleague will provide some examples of the types of problems we face with smaller companies.
Our second observation is that to the extent feasible, added focus ought to be placed on preventing the initial approval of employment-based petitions that involve fraud by the petitioner. Employment based nonimmigrant visa cases are initiated by the approval of a petition and conclude with the issuance of a visa. In our view, more fraud detection up front before the petition is approved would save much time and resources for both INS and the Department of State.
One thing we found overseas is that if we are able to make some simple checks to verify phone numbers, sometimes we can stop the fraud dead in its tracks. We would suggest that this might be useful domestically, checking with IRS on tax filings and using other resources at the beginning of the process just to clarify if this a viable company or not.
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With that, Mr. Chairman, I am going to conclude my remarks. I will skip overI had some information on students but in the interest of time I will skip that. But I do hope at some time you will let me tell you where we have conducted our antifraud site visits in the last 9 months.
[The prepared statement of Ms. Sambaiew follows:]
PREPARED STATEMENT OF NANCY SAMBAIEW, DEPUTY ASSISTANT SECRETARY FOR VISA SERVICES, U.S. DEPARTMENT OF STATE, BUREAU OF CONSULAR AFFAIRS
Mr. Chairman, thank you for this opportunity to provide to the sub-committee the views of the Department of State on some of the more problematic aspects of our current nonimmigrant specialty worker, intracompany transferee and student visa programs. While the large majority of these visas are issued routinely; our experience shows that, worldwide, there is a small percentage of fraud in these categories, and in a few geographic locations there are serious problems. I think it would be useful to give the committee some idea of the magnitude of the job consular officers face in carrying out the visa function. In 1998 approximately 800 consular officers adjudicated 8.1 million visa applications. That is more than 10,000 applications per officer. Our anti-fraud efforts must be practical and selective in application. We gain nothing by subjecting bona fide applicants to delays and random investigations. We constantly make judgments about where our vulnerabilities are the greatest and what methods have the greatest payoff. Today Ms. Esposito and I are going to tell you about real fraud investigations by consular officers which have broken up major fraud scams and have given us invaluable insights into the vulnerability of our highly skilled worker, intracompany transferee and student visa programs.
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Mr. Chairman, the Department of State has a strong anti-fraud program, with personnel in all field offices dedicated to addressing fraud concerns. It is centered on the expertise and vigilance of our consular officers who become familiar with the economy and culture of the countries where they are assigned and where they learn to speak the local language. Consular officers examine documents, interview the visa applicants and make the final determination on visa issuance. In doing so they use a powerful and constantly improving tool, the ''Consular Lookout And Support System'', our name check database, that has links to the data resources of other agencies. Further, they rely on the support of the Office of Fraud Prevention Programs, within the Bureau of Consular Affairs. This office provides training, gathers and shares intelligence on patterns and trends, and offers guidance on strategies posts can use to effectively integrate anti-fraud efforts into their overall consular management.
Mr. Chairman, given available resources, we believe we are doing a good job in detecting fraud. Perhaps the best evidence of this is the large numbers of illegal immigrants who attempt to bypass our officers completely and pay thousands of dollars to smuggling organizations or for counterfeit travel documents. Let me mention a few of the successes we have had in modernizing our anti-fraud programs lately. Our innovations are designed to thwart the increasingly sophisticated and pervasive types of fraud we are countering abroad and at home by:
First, a monthly e-mail magazine of fraud trends and consular best practices that have been successful in defeating recent fraud phenomena. The articles in this publication are based upon consular reporting, INS intelligence reports, and other law enforcement sources.
Page 66 PREV PAGE TOP OF DOC Second, CD ROM guides to train our consular officers in the field.
Third, regional training courses for our locally hired Foreign Service National investigators from the former Soviet Union, Eastern Europe, the Caribbean, Central America, Africa and the Middle East.
Fourth, a one week training course for anti-fraud officers at the National Foreign Affairs Training Center.
Fifth, we have urged our posts to undertake a managerial approach, including an analysis of their particular vulnerabilities, in order to find appropriate management tools and approaches to make sound consular decisions.
Sixth, we are surveying our 35 most experienced anti-fraud units on their methods for tracking cases under investigation. From the models we plan to develop a standard consular anti-fraud tracking system.
However, despite all of these efforts, for every fraud scam we detect, another better one can emerge. That is why we must continue to seek improvements in our methods and resources. Some of our greatest successes have come as a result of cooperative programs with INS. We intend to continue to work with INS. For example, we would like to work more closely with them on additional datasharing arrangements, especially on the development of an electronic system for secure shared access by our posts overseas to a central INS database of all approved petitions. With regard to students, we are actively participating in the ''Coordinated Interagency Partnership Regulating International Students'' or CIPRIS project, and look forward to the enhanced anti-fraud capabilities INS is building into the CIPRIS data system.
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Mr. Chairman, turning to specific problems we encounter in the visa categories that are the focus of today's hearing, we have several general observations to share with the subcommittee that it may find useful as it considers the issue of fraud. First, in general, large well-known national and international companies and institutions, including schools, rarely present a problem. Whereas, very small, closely held companies that have disproportionate numbers of nonimmigrant aliens are more problematic. In her testimony my colleague from the Visa Office, Jill Esposito, will provide some examples of the types of problems we face with the smaller companies. I would like to thank the members of Congress for including in last year's American Competitiveness and Workforce Improvement Act provisions to better regulate job shops in the H-1B category. Our posts had complained that in too many instances the large numbers of aliens headed for job shops indicated to them that U.S. workers frequently were being excluded from the possibility of employment and alien employees would experience substandard wages and working conditions.
Our second observation is that, to the extent it is feasible, added focus ought to be placed on preventing the initial approval of employment-based petitions that involve fraud by the petitioner. Employment-based nonimmigrant visa cases are initiated by the approval of a petition and conclude with the issuance of a visa. In cases where the destination employment in the United States is bogus, but the alien would be qualified for the alleged employment if it were real, the consular officer often is in a poor position to make a judgment on the bona fides of the U.S. petitioner or the actual availability of a real job. Currently, petition approval appears to be based primarily on a review of the documentation submitted by the petitioner without any attempt to meaningfully verify the authenticity of the petitioner's submission. In our view, more fraud detection up front, before the petition is approved would save much time and resources for both INS and the Department of State. I include INS here since consular officers are instructed to return petitions to INS for possible revocation proceedings when the officer has reason to believe there is fraud involved. Overseas, we have been able to make use of simple procedures such as verifying the phone numbers of the petitioning company to determine bona fides. However, these checks of domestic petitioners can be conducted more efficiently and economically in the United States. A simple call often reveals that no business exists, or that the nature of the business is actually unrelated to the skills of the alien visa applicant. Routine checks of this nature, or perhaps others, such as checking alleged employer filings with the IRS, may help to eliminate some fraudulent cases before the visa applicant reaches our window. Ms. Esposito will also tell you a little about a special project we have initiated at one of our posts abroad with the cooperation of INS. The project involves local investigation at post in certain types of cases prior to petition approval.
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Finally, Mr. Chairman, with regard to fraud in student visa applications, it is very difficult for our consular officers to determine which student visa applicants may in fact be intending immigrants. In view of the fact that a school in the United States can be found for even the poorest academic achiever, we cannot base visa determinations on academic credentials alone. Unfortunately, schools that actively recruit foreign students for primarily economic reasons, and without regard to their qualifications or intentions, may encourage such high-risk underachievers to seek student visa status as a ticket into the United States. We do screen for authenticity of any required documentation, availability of funds to sustain the alien while in the United States and for the existence of a residence abroad to which the alien intends to return. And, in fact, many applicants are refused for lack of resources or home country ties. However, when outward appearances are reasonable, we cannot do much to detect those who intend to work or immigrate rather than study. An excellent case in point of which you may already be aware occurred recently when thirty two otherwise very well qualified Chinese high school students entered the United States, allegedly for a brief period of study. After the completion of their short course school officials were astounded to see every one of them hustled away from the airport by unknown third parties just prior to the departure of their return flight home. It is presumed that all will seek somehow to extend their stay in the United States. Even veteran consular officers are aghast at the audacity of this particular scheme. Subsequent investigation showed that the parents intended for their children to remain in the United States indefinitely and had paid thousands of dollars to a recruiter to get their children into the United States. The fact that these were well-qualified student visa applicants from good backgrounds demonstrates the difficulties encountered by consular officers in adjudicating student visa cases.
Mr. Chairman, this concludes my remarks. I would like to thank you again for the opportunity to speak to the subcommittee today. I would be happy to answer any questions the members may have.
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Mr. SMITH. Thank you. I will ask you about that. Ms. Esposito.
STATEMENT OF JILL ESPOSITO, POST LIAISON DIVISION, VISA OFFICE, U.S. DEPARTMENT OF STATE, BUREAU OF CONSULAR AFFAIRS
Ms. ESPOSITO. Thank you, Mr. Chairman. At the Directorate of Visa Services, my responsibilities include oversight of developments in the H and L nonimmigrant visa categories, so I would like to focus my remarks on them.
There is no doubt that many foreign workers currently in the United States in H1B and L1 categories are indeed skilled professionals and experienced managers as envisioned by law. Nonetheless, along with these desired professionals, thousands of marginally qualified applicants are also entering the United States in the H1B and L1 categories. To demonstrate this point, I would like to share with you a sample of some of the cases we have seen in the field.
Consular officers in the Consulate General in Guangzhou, China, have seen a problem with L1s. Recently, they chose 10 random L1 petitions from those that had been approved by the INS and forwarded for visa issuance. The officers then set out to verify the accuracy of the information contained in the petitions. Of these 10 petitions, only two were bona fide companies whose petition beneficiaries were actual managers. Of the other eight approved petitions, three companies could not be located at all and did not appear to exist except on paper. One beneficiary was totally unknown to the claimed parent company that supposedly wanted to transfer her to the United States. The other companies investigated were extremely small and unable to establish that their interests were international in scope.
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There are many examples where listed addresses of parent companies seeking to establish an operation in the United States turn out to be beauty salons, private residences or small groceries. Indeed, a common abuse of the L1 intracompany transferee visa involves a small shop owner traveling to the U.S. on a visitor's visa, setting up an international branch of the family grocery store or fabric store, and then petitioning himself for an L1. Once the petition has been approved, the remaining family travels to the United States on dependent visas. No real relationship between the store in their country of origin and their new enterprise in the United States is maintained.
Just such a case was recently brought to our attention by the Consulate General in Jerusalem. Sometimes consular officers can prove that the case is a total fabrication, but often the case is like the one described above where it meets certain technical standards, but certainly does not meet the purpose intended by Congress in establishing the intracompany transferee visa category. As these petitions have already been approved by the INS, the only recourse available to a consular officer is to return the petition to the INS Service Center that approved it pointing out the irregularities. However, INS as the adjudicating authority may reaffirm the petition and return it to post for visa issuance.
Another example recently reported by the Consulate General in Casablanca illustrates a different problem for H1B cases. The company that filed the petition turned out to be the doughnut shop owned by the applicant's sister and brother-in-law in the United States. The doughnut shop supposedly needed her skills as a comptroller to direct the financial activities of the company. This applicant was 23 years old and a recent university graduate. The petitioning firm is a bona fide entity, the doughnut shop really does exist, and the applicant does indeed have a bachelor's degree as required under the law. Still, the interviewing consular officer wondered how this was an alien with highly specialized knowledge going to a specialty occupation.
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Let me explain how this can happen. All employment visa petitions are adjudicated by the INS based upon a paper review. All applications are often filed by professionals who take care to package their clients in a way that will fit the requirements of the category. The INS officer will be buried in certifications and attestations as to how the beneficiary's degree and accounting experience in a prestigious firm entitles her to be qualified as a specialty occupation employee. The doughnut shop will never be referred to as just that, but always as the corporate body or petitioning firm. INS will approve the petition based on documentation included and send it to the consular officer for visa issuance. If a picture is worth a thousand words, I wonder how much an interview is worth? When the applicant shows up at the visa interview, the real picture becomes clear. The consular officer learns that the comptroller does not speak English and that her employment experience had really been an internship.
Very often in cases like this, the petition technically meets the requirements of law. The company exists, and the employee meets the minimum qualifications. In such cases we are concerned that existing law leaves a large gray area where it is difficult to refuse issuance of a visa when there is not clear evidence of outright fraud. State consular officers may raise concerns regarding marginally and minimally qualified cases to the INS. However, INS is the adjudicating authority and may reaffirm the petition and return to it to post for visa issuance.
Nor is the problem of paper review limited to the H and L nonimmigrant categories. The P3 category designed to bring artists and entertainers to the United States for performances is also subject to abuse.
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The Embassy in New Delhi recently reported that intensive scrutiny of the bona fides of P3 petitions forwarded to their post revealed that 40 percent of the petitions contained information that was not credible. Since beginning their review of promoter credentials, P3 petitions in New Delhi have plummeted 86 percent from the same period last year from 2,016 to 278.
As Mr. Yates mentioned, a recent initiative aimed at preventing H1B fraud has been taking place in Chennai, India. As Indian nationals account for over 40 percent of all H1B's issued, establishing this pilot in Chennai has been extremely appropriate.
We have investigated suspect job experience letters, companies, and degree certificates for the INS prior to their adjudication of the petition, and as Mr. Yates mentioned, it has had great success in facilitating their issuance of intents to deny. Checks such as this help prevent fraud such as front companies, but are not necessarily effective in preventing abuse from the creative packaging of doughnut shops and whatnot, as I explained.
As long as the legislation governing these visa categories remains so vague and open-ended as to encourage this type of abuse, I believe we will continue to receive petitions for applicants who do not have the highly desirable skills or managerial experience that Congress intended to bring into this country.
Thank you very much.
[The prepared statement of Ms. Esposito follows:]
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PREPARED STATEMENT OF JILL ESPOSITO, POST LIAISON DIVISION, VISA OFFICE, U.S. DEPARTMENT OF STATE, BUREAU OF CONSULAR AFFAIRS
My name is Jill Esposito and I am a Consular officer in the US Foreign Service. I am currently assigned to the Directorate of Visa Services where my responsibilities include oversight of developments in the H and L nonimmigrant visa categories.
There is no doubt that many foreign workers currently in the United States in H1B and L1 nonimmigrant employment visa status are indeed skilled professional workers and experienced managers of multinational companies with operations in the United States, as envisioned by the law. Nonetheless, along with these desired professionals, thousands of marginally qualified applicants are also entering the United States in the H1B and L1 categories.
To demonstrate this point, I would like to share with you a sample of some of the cases that we have seen in the field.
Consular officers at the Consulate General in Guangzhou, China, recently chose ten random L1 petitions from those that had been approved by the INS and forwarded for visa issuance. The officers then set out to verify the accuracy of the information contained in the petitions. Of these ten petitions, only two were bona fide companies whose petition beneficiaries were actual managers. Of the other eight approved petitions, three companies could not be located at all and did not appear to exist except on paper. One beneficiary was totally unknown to the claimed ''parent company'' that supposedly wanted to transfer her to the US. The other companies investigated were extremely small and unable to establish that their interests were international in scope.
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There are many examples where the listed addresses of ''parent companies'' seeking to establish an operation in the US turn out to be beauty salons, private residences, or small groceries. Indeed, a common abuse of the L1 ''intracompany transferee'' visa involves a small shop owner traveling to the US on a visitor visa, setting up an ''international branch'' of the family grocery stand or fabric store, and then petitioning himself for an L1. Once the petition has been approved, the remaining family travels to the United States. No real relationship between the store in their country of origin and their new enterprise in the United States is maintained. Just such a case was recently brought to our attention by the Consulate General in Jerusalem.
Sometimes consular officers can prove that the case is a total fabrication. But often the case is like the one described above where it meets certain technical standards, but certainly does not meet the purpose intended by Congress in establishing the intracompany transferee visa category. As these petitions have already been approved by the INS, the only recourse available to a consular officer is to return a petition to the INS Service Center that approved itpointing out the irregularities. However, INS as the adjudicating authority may reaffirm the petition and return it to post for visa issuance.
Another example recently reported by the Consulate General in Casablanca illustrates a different problem for H1B cases. The company that had filed a petition turned out to be the donut shop owned by the applicant's sister and brother-in-law in the United States. The donut shop supposedly needed her skills as a ''comptroller'' to ''direct the financial activities of the company.'' This applicant was 23 years old and a recent university graduate. The petitioner firm is a bona fide entitythe donut shop really does existand the applicant does indeed have a bachelor's degree as required under the law. Still, the interviewing consular officer wondered how this was an alien with highly specialized knowledge going to a specialty occupation.
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Let me explain how this can happen. All employment visa petitions are adjudicated by the INS based upon the documents submitted. The applications are often filed by professionals who take care to ''package'' their clients in a way that will fit the requirements of the category. The INS officer will be buried in certifications and attestations as to how the beneficiary's degree and accounting experience in a ''prestigious'' foreign firm entitles her to be qualified as a specialty occupation employee. The donut shop will never be referred to as just thatbut always as the ''corporate body'' or ''petitioning firm.'' INS will approve the petition based on the documentation included and send it to the consular officer abroad for visa issuance.
If a picture is worth a thousand words, I wonder how much an interview is worth? Only when the applicant shows up at the visa interview does the real picture become clear. The consular officer learns that the ''comptroller'' does not speak English, and that her employment experience had actually been an internship. The consular officer also recognizes that the prospective specialty occupation employee's professional background is not relevant to US accounting standards. Very often in cases like this the petition technically meets the requirements of the lawthe company exists and the employee meets the minimum qualifications. In such cases, we are concerned that existing law leaves a large gray area where it is difficult to refuse issuance of a visa when there is not clear evidence of outright fraud. State consular officers may raise concerns regarding marginally and minimally qualified cases to the INS. However, INS as the adjudicating authority may reaffirm the petition and return it to post for visa issuance.
Nor is the problem of paper review limited to the H and L nonimmigrant categories. The P3 category, designed to bring artists and entertainers to the United States for performances, is also subject to abuse. Embassy New Delhi recently reported that an intensive scrutiny of the bona fides of P3 petitions forwarded to their post revealed that 40% of the petitions contained information that was not credible. Since beginning their review of promoter credentials, P3 petitions in New Delhi have plummeted 86% from the same period last year, from 2016 to 278.
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INS and State share frustration over such abuse in these employment visa categories. In a recent initiative aimed at preventing H1B fraud, INS and State have shown that cooperation in fraud investigations can be beneficial. The US Consulate in Chennai (Madras), India has offered to perform investigations for the INS on suspect H1B cases PRIOR to their adjudication of the petition. Chennai issued over 20,000 H1B visas in FY 98more than any other overseas post. Indeed, as Indian nationals account for over 40% of all H1B's issuedestablishing this pilot in Chennai has been extremely appropriate.
The three participating INS Service Centers forward to Chennai requests to investigate the authenticity of suspect job experience letters, companies and degree certificates. After almost one year of this initiative, the results are impressive. INS sent 3,247 cases to Chennai. The anti-fraud unit was unable to verify the authenticity of close to 45% of the claims made on the petitions. 21% of the work experience claims made to the INS were confirmed to be fraudulent.
Checks such as these prior to petition approval by the INS help prevent fraud such as ''front companies'' set up for immigration purposes only, and the fabrication of an applicant's education or experience. Unfortunately, we simply do not have the staff to conduct routine investigations for the INS. Also, investigations will not prevent abuse from ''creative packaging'' as described above. As long as the legislation governing these visa categories remains so vague and open-ended as to encourage this type of abuse, I believe we will continue to receive petitions for applicants who do not have the highly desirable skills or managerial experience that Congress intended to bring into this country.
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Mr. SMITH. Thank you, Ms. Esposito.
Your testimony is a good example of why we need to hear from people on the front lines. You can speak from personal experience, and that is a real advantage to the committee.
Mr. Yates, I want to follow up on a question that I asked Mr. Bromwich a few minutes ago, and that is, is it still standard practice for the INS, even when they can identify these individuals who have benefited from visa fraud, that there is a decision made not to prosecute or deport those individuals? In other words, we go after the companies or the person who is responsible for getting these individuals into the country, but there are individuals whose names are known, location is known, and why is it we don't deport those individuals who have benefited from visa fraud?
Mr. YATES. Generally speaking, it depends on the category. If this individual is not a criminal, we talked about L1 Russian fronts for organized crime, in those cases we will go after the beneficiaries of the petitions to make sure that we have removed entire organizations.
When we are talking about individuals, noncriminals, generally speaking, that is correct, we do not. It is simplyit is a resource
Mr. SMITH. If someone comes in on an L visa and has presented falsified or inadequate documents or you have determined that they didn't really have the requisite background that they said they did, you do deport those individuals?
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Mr. YATES. No, I am saying just in specific instances. It depends on the investigation. In the example I gave about a Russian organized crime, Chinese organized crime, those kinds of cases where they are using theespecially the L provisions, we will institute deportation removal proceedings against the beneficiaries. But in the average case, we do not.
Mr. SMITH. So you have all these people whom you can't identify who are in the country wrongly or on the basis of fraudulent documents, and you still don't deport those individuals?
Mr. YATES. That is correct.
Mr. SMITH. It would be easier to deport those individuals than those in the country illegally whose names you don't know. It seems to me that would be a good use of resources.
Mr. YATES. I might argue that in terms of where they are at is an issue because in some of these fraud schemes, it is the ability to get into the country and then they disappear in the woodwork. So it is not simply a matter of
Mr. SMITH. But you don't know that until you make an effort?
Mr. YATES. Yes, you are correct. In terms of prosecutions, however, that depends on an individual jurisdiction and the priorities of the local U.S. attorney and the resources of the U.S. attorney. In many areas we do prosecute even the beneficiaries in some of these cases. But in most that is not the case simply because it is not going to meet the priorities.
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Mr. SMITH. It seems that would be sending the exact opposite message you want to send, and the message that you are sending is if you get into the country under false pretenses, you are pretty much home free. And it probably doesn't take long for that message to be passed around and result in more visa fraud.
Mr. YATES. I would agree, that is certainly a draw.
Mr. SMITH. You mentioned in your testimony that you have seen an increase in various types of visa fraud, particularly in the H1B category. Go into a little more detail on that, and what is the kind of fraud that you all have had to confront there?
Mr. YATES. Well, two types basically. One is the fact that peopleindividual aliens overstate their qualifications. Frankly, the requirements are fairly low, a baccalaureate degree in the area in which the petition has identified them in that particular labor category. But we do see a lot of people who will provide documentation which may be false or experience letters which are false.
In addition to that, we see organized efforts where recruiters will bring people in and will funnel fraudulent documents to these individuals for fees to get them into the United States.
Mr. SMITH. When you find those individuals who abuse fraudulent documents, you don't make any effort to deport them either in the H1B category?
Page 80 PREV PAGE TOP OF DOC Mr. YATES. Generally, no. We will seek to deny the benefits because of our priorities which are to focus on criminals and smugglers and people involved in more dangerous activities.
Mr. SMITH. You don't think if the INS had more border patrol agents, they might be better able to deport some of these individuals, do you?
Mr. YATES. I don't think that would help in this area.
Mr. SMITH. Maybe I should talk about interior enforcement.
Mr. YATES. I would say in terms of our interior enforcement strategy that fraud has been elevated. It is now a key component of our strategy.
I am out of time, but I will come back in a minute to ask you more about the Cypress program, which I am very much interested in in regard to student visa fraud. The gentlewoman, I started to say, from Houstonfrom Texas is recognized.
Ms. JACKSON LEE. Thank you, Mr. Chairman. I think we owe it to the American people to stamp out fraud and the abuse that it results in in the issue of visas. At the same time, I am going to ask separate questions, but I would appreciate it if you'd thinkkeep this anecdotal story or truthful story, factual story, in mind as I raise questions with you.
Many times we have these horror stories in our office, and one example is a Chinese citizen is seeking a visa because her mother was dying of cancer, and all of that is documented, so her story was not an untrue story. Her sister was an academician, and we worked very closely with the officer in China, and to our chagrin and horror, you disallowed or took so long and was so deleterious that she did not arrive in time to answer her mother's dying wish, which was to see her; and finally, she got in here for the funeral, which I think is a paltry and pitiful substitute for being able to see someone during the time of their life, albeit painful.
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So I am very interested in why wehow do we balance that with the issue of stopping the tide of fraud, if that is an enormous issue.
To Mr. Yates, if you wouldif you would give me a sense ofin the cases of the Chinese and Russian L1s, how was it determined which cases would be sent for investigation? Are these investigations ongoing? And what investigations is INS currently pursuing and how many cases are currently involved in the investigations?
Mr. YATES. The initial determination was that we were experiencing fraudand I will take the Russians, first of alland that was my experience from the Vermont service center, came from some of our officers adjudicating the cases when they were concerned about some of the documentation and created a checklist that they sent out for more documentation.
And when they did that, they noticed that not only did they get back on that one petition everything that they asked for but it came in on other petitions in unrelated, seemingly unrelated, that were filed in different States but still filed with the service center.
When we started to do some link analysis and determine linkages from boards of directors, we reached out to the Department of State and to the FBI for assistance. The Chinese L1 wasthere was more activity on the West Coast. The California service centerthat service center does have special agents assigned right at the center.
And when they saw a dramatic increase in the numbers, they sent teams of agents out to just conduct on-site visits for looking at, at these alleged operations that were located in the Los Angeles area and found very, very high fraud rates, continued to do link analysis, linking different companies, different individuals who are involved in those schemes.
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May I ask, Mr. Bradford, if you have anything further on that?
Mr. BRADFORD. Sure. We rely a lot on what our examiners or adjudicators pick up. A lot of this is what you call boilerplate applications. You see the exact same application for a number of people even though they are from nonrelated companies.
A lot of the information or leads we get come from our field elements, investigators, the border patrol. The service centers have a tremendous data base there from the applications we get. Many times they will get a case and suspect that this may have ties to other benefit fraud and will call us, and we have the capability of checking our computer data bases and finding out that this is a larger scale case than they originally thought with only the apprehension of key people.
So we are directly involved, not only while we deal with the service center, but we get it from investigations and border patrol and inspections, also.
Just to give you a couple of examples of some of the cases; and I will go, Mr. Chairman, into some of the questions asked Mr. Yates a while ago. I will go specifically to a case we are investigating now in the Dallas area.
It involves an H1B scheme where this guy is actually bringing people in that do not have jobs. He is acting as a job broker for them. They do not have jobs when they arrive, but this is not the case in all the situations. We have 700 petitions filed by this person here. Out of that 700, unless we go to each one individually and look at it, some of these are legitimate people. Some of these people are working for him.
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So in a lot of the cases that is reason we do not do follow-up on some of these schemes that have the large numbers. We know that some of these petitions or applications were filed in good faith and that people are working in some of these areas. So it is a tremendous resource arearesearch issue going back on these.
Another case in the Houston area regarding the L1we investigated along with the Houston office 108 Chinese companies. We found 37 of these either did not exist or were storefront companies. So those are some of the things we do to identify what we call the ''sort criteria'' or the computer link analysis work that we do.
Ms. JACKSON LEE. Well, II am going to go to the floor.
Mr. SMITH. Mr. Bradford, you remind me that I have lost a little bit of an edge to my Texas accent.
Mr. BRADFORD. I am sorry to hear that, sir.
Mr. SMITH. Me, too. Me, too. Ms. Sambaiew and Mr. Yates, let me go back to the CIPRIS system for just a minute, which I think is off to a good start with the pilot program, but I would like to hear from you-allI did get you-all in there, Mr. Bradford. I would like to hear from you-all in regard to whether we are getting the cooperation that we want and need from the schools who are involved, what schools are involved; and Mr. Yates, I guess to you, whether the administration has requested full funding and whether you are going to make your target of 2002 to implement it across the country.
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But Ms. Sambaiew, if you will begin and give us a little bit more detail about the program, how it is working, cooperation and so forth andif you-all can remember my question. Since Ms. Jackson Lee has to go to the House floor, I am going to yield to her and let her finish up her questions before she leaves.
Ms. JACKSON LEE. Mr. Chairman, I thank you very much for your kindness. If I could get a brief answer, I would greatly appreciate it.
One, I need you to comment on this issue of what happened to this woman. It is just an example of what we hear, but also how many applications are denied on the basis of fraud or misrepresentation each year and what percentage are based on subjective determination of the applicants' intent and not objective documentary evidence?
If you can wrap that into what ability does an applicant have to overcome a determination of fraud or misrepresentation by a council officer and can they appeal? My point here is if the officers get in their mindset that everybody is fraudulent, I mean, how do you overcome that burden? I appreciate it.
Thank you very much, Mr. Chairman.
Mr. SMITH. Sure.
Ms. SAMBAIEW. Let me just address the case you mentioned of the humanitarian visa for the individual from China. We adjudicate about eight million visas a year, and a certain percentage of those are humanitarian cases; and I know my boss, Mary Ryan, just sent a cable last week reminding posts abroad that you will have these cases, but inevitablythere is a tension in visa work. The law requires that the applicant demonstrate a tie abroad to a place that he will return. Nonetheless, circumstances in the States dictate something a bit special.
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So Assistant Ryan reminded all of our consular officers abroad to give those humanitarian cases a close look because they are unique; and of course, we see a certain number. We do try to make sure that the facts as presented are correct.
And I would like to offer that should you get additional cases in the future, don't hesitate to call us in the Visa Office because we oftentimes will run interference, call a post late at night. I have been on the phone in the middle of night many times for these kinds of humanitarian cases.
I won't say all are concluded happily for everyone, but we do try to make an effort to get more detail to the post; As you say, in the case of China, some of these posts inevitably I found in visa work, are the posts that are in the furthest time zones and usually with the quickest need for a turnaround. So we make a lot of calls in the middle of the night.
You asked about how manyhow many visa refusals we have based on fraud. We don't actually break our statistics out that way. We refuse probably out of those eight million applications probably about 18 or 19 percent. Some of those would have been refused for fraud, others for different reasons. Inevitably, the bulk are refused for what we call 214B, the individual just couldn't demonstrate a tie abroad that would return them home at the end of a visit.
Some of those decisions I'm sure are considered by at least the applicants, if not their sponsors, to be somewhat subjective. It is based on the interview. It is based on information that the applicant will have supplied at the time of the interview. It is probably much rarer to make a finding of an eligibility based on documents alone.
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Nonetheless, applicants are able to come back and reapply certainly if they have additional documentation, and I think most of our posts try to make sure if an applicant comes back for a second interview they see a different officer. We don't want to prejudice a case, and if someone has new information, it should be considered. So the tendency is, I know at least at my past posts, to let that individual see another officer and make another presentation.
Ms. JACKSON LEE. Thank you very much. Thank you, Mr. Chairman.
Mr. SMITH. Ms. Sambaiew, can you remember all my questions?
Ms. SAMBAIEW. Yes, on CIPRIS?
Mr. SMITH. Yes.
Ms. SAMBAIEW. I am probably going to have to defer a little bit more to our colleagues here from INS, as State Department is the next link. We have been working with INS to make sure that what we do for pilots abroad is
Mr. SMITH. The reason I began with you is I interrupted you when you were talking about it during your testimony, so I was going to give you a chance to respond, but we will go to Mr. Yates and have him respond first.
Ms. SAMBAIEW. Okay.
Page 87 PREV PAGE TOP OF DOC Mr. YATES. Mr. Chairman, we currently have a pilot operating using our Atlanta district office, our Atlanta port of entries, the States of Georgia, North and South Carolina and Alabama. There are 21 schools that have been signed up in this pilot.
I have not been and am not intimately familiar with the details of that pilot. I am told it isit is working well in terms of theand we are working as we develop this systemwe are developing it within concert with the Department of State.
In terms of the funding issue that you raised, we have allocatedwe do have an allocation in our 2000 and 2001 budget for this. We are also working on the development of a publication of a regulation to establish a fee so it will be self-supporting by the time that we implement
Mr. SMITH. Are you on schedule to have it fully implemented by 2002?
Mr. YATES. I have been informed that we are, sir, yes.
Mr. SMITH. Let me ask one more question in regard to Cypress. When you identify a student or would-be student who has been admitted for fraudulent reasons or for one reason or another is no longer legitimately either a student for one reason or another or no longer enrolled at that educational institution or so forth, do you make any effort to take any action against that individual to deport them or anything else?
Mr. YATES. Well, that is athat is a part of the strategy. As I went through the document, we are building in the identification on how to do that. I cannot really comment at this point in time if they have built in part of the plan the resources necessary to address that, but I will have to get back with you on that.
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Mr. SMITH. As of when those individuals are identified, is anything happening to them?
Mr. YATES. I am not aware that anything is happening at this point.
Mr. SMITH. The larger question here that we are discovering is, what is the point of having all these visa laws on the books if you are not going to take any action against the individuals who violate the visa laws?
Mr. YATES. Well, if you deny them the benefit and if we focus on denying employment to individuals, then you try to deny them the opportunity really to remain in the United States.
Mr. SMITH. But if you don't take any deportation action against them, why aren't they going to remain?
Mr. YATES. Well, hopefully because by denying benefits you deny them the opportunity to find gainful employment.
Mr. SMITH. Well, we know that that is
Mr. YATES [continuing]. Is problematic.
Page 89 PREV PAGE TOP OF DOC Mr. SMITH. Yes. So, in effect, whether we are talking about people coming in on L visas, H1B visas or student visas or any other kind of visas, nothing happens to them after they are identified as being userabusers of the system.
I shouldn't say ''never'' to anybody, but we talked about the criminal element. But except for that, these folks are here to stay. They may be in an illegal capacity, but there is no one taking any action to make them go back to their home country.
Mr. YATES. Generally speaking, that's correct.
Mr. SMITH. Does that sound to you like an immigration system that is working?
Mr. YATES. I think with any agency we have got to deal with the resources we have and the priorities we have; and so based upon our priorities in looking at the worst offenders and those that pose the most serious risk to the people of the United States, I
Mr. SMITH. You understand my point. Here we are going to a lot of trouble and effort and money to implement a number of systems, whether it be CIPRIS or some other system, and yet when we identify the individuals who are guilty of visa fraud, we are not taking any action against them. That is the frustration that I think a lot of us have. Okay. I guess it isI guess you agree to that.
Let us see, Ms. Sambaiew. Let me ask a couple of questions based upon your testimony. You talk about that there are a few geographic locations where there are more serious problems than others. On the basis of your testimony, I gather that that is China, India. Where else?
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Ms. SAMBAIEW. Russia.
Mr. SMITH. And Russia. Does that justify scrutinizing individuals who apply for certain types of visas from those countries more than individuals who are applying for the same visas from other countries?
Ms. SAMBAIEW. I think it does. We havewe have certainly tried in India. I want to point out, though, in each of those three countries we have many bona fide applicants as well. In India we issue40 percent of our H1Bs are done out of India, so that inevitably you would expect probably a high number of fraud cases out of such a large group.
But we have tried. As my colleague mentioned, in Chennai we have a joint program with INS to go ahead and check.
Mr. SMITH. Was it your testimony or Ms. Esposito's testimony where the H1B applicants from India, 40 percent were determined to have fraudulent backgrounds? Was that your testimony?
Ms. SAMBAIEW. It was in my colleague's testimony. For forty-five percent we couldn't verify that they had the academic background to actually qualify for the H1B.
Mr. SMITH. That seems to me a pretty high rate of fraud
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Ms. SAMBAIEW. It is unusually high.
Mr. SMITH [continuing]. That is surpassed even by the sampling of the 10 applicants from China, where, what, 8 out of the 10 were fraudulent.
Ms. SAMBAIEW. It is a huge number, and therefore, we felt like certainly it was worth the resource effort that we put into that project because the numbers were so high. The H1B is an attractive category. I think people will say that to come to the United States, and it is worth the risk if you can package yourself that way.
Mr. SMITH. Ms. Esposito, you didyou started a while ago, and you did a good job of explaining why sometimes eyeballing somebody, seeing them in person, gave you a better sense of the degree of fraud that was present than otherwise.
And you also touch in your testimony on how someone might have all of the documentation that would indicate that they are not taking advantage of our visa laws, but when you talk to them individually, you find out that in fact it is not all that it appears to be.
Can you elaborate a little bit more on that and on the training that is given to enable you and others to detect that visa fraud?
Ms. ESPOSITO. I think it is more than training. It is being a resident in that country. When you live in a country, you become familiar with the country. You become familiar with the culture. You are there. You are specializing in that particular country. So some red flags are going to be raised to you that wouldn't necessarilyno offense to Texasbe raised to someone in Texas, and so we are in a better position.
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Training is very helpful, and it can go a long way to preparing you to catch that sort of fraud, but a little experience on the ground is really what helps.
Mr. SMITH. It goes a long way.
Ms. ESPOSITO. That is the most important thing and having new officers mentoring and having an officer who has been there a little while sort of watch over you and say, oh, you got to look a little more closely at that document, that sort of thing, is the most valuable sort of on-the-job.
Mr. SMITH. Last question. This is based upon the last paragraph of your prepared testimony. I don't believe you got to it, but you said: ''As long as the legislation governing these visa categories remains so vague and open-ended as to encourage this type of abuse, I believe we will continue to receive and so forth.'' Do you have any specific suggestions on how the language should be tightened or what we ought to do legislatively?
Ms. ESPOSITO. I am going to defer to my boss on that
Mr. SMITH. Okay. Now, that was your testimony I was reading from, though. Right?
Ms. SAMBAIEW. It was.
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Mr. SMITH. Collaborative effort.
Ms. SAMBAIEW. We didn't bring specific items. I think there are two or three that I might throw out. One is certain things that I think we in State and INS can do to work together to tighten this front end on better vigilance on documents, but I think what we have found that when you move into the huge company versus a very marginalized company, we see more trouble at the very marginal end.
So perhaps in terms of looking toward legislation, I think it is that marginal end of the spectrum that we are definitely going to be looking at. The large international companies have not presented a problem to us at all, but I would say we would be more than happy to work with staff on that.
Mr. SMITH. Okay. And I think you did point out in your testimony that it wasor actually, no, it is Lynn Shotwell in the next panel that points out accurately that a majority of the companies are legitimate. They are trying to rightly bring people in who benefit the corporations, the company. So we are talking about a very small number of individuals, small number of companies; but that doesn't mean our efforts should be any less, I don't think.
Thank you-all for being witnesses for us today. It is an important subject, and let me say as the next panel comes forward that we are expecting a vote in 15 minutes, at noon; and we are going to have to adjourn at that time because of the next subcommittee, the Constitutional Law Subcommittee needing to set up at 12:30.
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So I started to say I was going to give you-all a choice of whether you-all wanted to make your opening statements and avoid having any questions or whether we were going to put your opening statements in the record and I would get to ask questions. I think maybe I will resolve that, but in any case, would you-all please come forward.
I will introduce you as you are sitting down. The first witness on Panel 3 is John Ratigan, retired consular officer, immigration consultant, Paul, Weiss law firm.
Also, Lynn Shotwell with the American Council on International Personnel, who is making her first appearance today before this subcommittee and whose mother is in the audience, and we would like to askwe would like to askI tell you we have our sources, Lynn. It is just as simple as that. Would Lynn Shotwell's mother please stand and identify herself. We are glad you are here. Don't you want to move up a little bit? You are welcomeplease move up so at least we can see you, too. I can watch your expression as your daughter testifies. If you would like to move up and be any closerare you okay? Now that I have totally embarrassed Lynn's mother.
And also our third witness is Mark Mancini with Wasserman, Mancini & Chang law firm. Also, our colleague Bob Goodlatte of Virginia has joined us and we appreciate his presence always.
Mr. Ratigan, we will start with you, but in the interest of being able to ask questionsand it is not fair to youif you can just give us a 1-minute summary. We have to do 1-minute speeches on the House floor all the time. If you can give us a 1-minute summary, then that way at least you can say what you consider to be most important and then we will come back with our questions.
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STATEMENT OF JOHN RATIGAN, RETIRED CONSULAR OFFICER, IMMIGRATION CONSULTANT, PAUL, WEISS LAW FIRM
Mr. RATIGAN. Mr. Chairman, that will be fine. I want to focus primarily on possible legislative approaches to some of the problems we have outlined this morning.
The first would be to establish some sort of basic qualifying business activity level for L visas. The second in the case of H1Bs would be to try to upgrade the skill level and relieve the overcrowding in that category basically by tightening up the definition, as Ms. Esposito and Ms. Sambaiew alluded to.
Mr. SMITH. Right.
Mr. RATIGAN. To upgrade the skill level and relieve the overcrowding, we need to return to the core definition of the H1B ''specialty occupation,'' that is, that is it.
Mr. SMITH. Okay. I am going to ask you a follow-up question on all those categories in just a minute.
[The prepared statement of Mr. Ratigan follows:]
PREPARED STATEMENT OF JOHN RATIGAN, RETIRED CONSULAR OFFICER, IMMIGRATION CONSULTANT, PAUL, WEISS LAW FIRM
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Good morning, Mr. Chairman, Mrs. Jackson Lee, members of the subcommittee. Thank you for the opportunity to testify today. My experience in immigration includes 25 years as a State Department Foreign Service Officer, specializing in immigration and visa matters. During that time, I served as the Consul General or supervisory consular and visa officer in Singapore; Cairo, Egypt; Toronto, Canada; and Seoul, Korea. I also served 2 1/2 years on detail from the State Department to the Senate Immigration Subcommittee, where I served as Counsel, most recently in 199596. I retired from the State Department in 1997, and have worked since then as an immigration consultant to the law firm of Paul, Weiss, Rifkind, Wharton & Garrison. The views I will express today are entirely my own, and do not reflect the views of my firm or any of its clients.
We have seen in the past decade, beginning with the 1990 Immigration Act, a considerable expansion in the importation of foreign workers. The 1990 Act redefined and put a numerical limit on H1B workers, liberalized the L provisions somewhat and added the new visa categories of O, P, Q and R.
American employers can now choose from at least eight different categories of legal nonimmigrant alien workers: E, J, H, L, O, P, Q and R visa-holders. The ''H'' category actually comprises several different visa categories. In addition, holders of ''F'' student visas can be granted employment authorization for up to one year of practical training, and holders of ''M'' vocational training visas up to six months of such training.
Page 97 PREV PAGE TOP OF DOC This expansion has for the most part gone quite well. Unanticipated demand, however, has left the one numerically limited category, H1B, currently oversubscribed. Because of the powerful magnet of the US job market, there are some areas of fraud and perhaps more areas of varying degrees of abuse.
B. AREAS OF FRAUD AND ABUSE IN H1B AND L VISAS.
The best known sources of ''employment'' visas are the H1B and L visas. This subcommittee is quite familiar with the debate over H1B visas. L visas, by which overseas employees of multi-national firms come to the U.S. for up to 7 years to gain experience in the U.S. office, fulfill a very useful function for both U.S. and foreign corporations. They have enjoyed a highly positive and well deserved reputation for many years.
Both visa categories have experienced fraud, however, simply because, for those in the business of moving aliens to the United States, H and L are prime ''people movers''. Both categories have been misused, for example, by Chinese alien smugglers and Russian organized crime figures.
1. Collapsible corporations.
In China, the method of operation has remained fairly constant for more than a decade. Small, essentially sham companies are set up, in the US and in China or the targeted foreign country. The US and foreign corporations which facilitate these transactions are usually nothing more than a P.O. box, an abandoned building or a fictitious address and a single telephone number, often shared by dozens or even hundreds of these collapsible corporations. An H or L visa petition is filed by the US company requesting that a visa be granted to the foreigner who is to be smuggled. The petition is routinely approved, and the alien gets his visa from the local US embassy or consulate.
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A similar system of small, shell corporations was and apparently continues to be used in Russia as well. Because many of the Russian underworld figures had ties to major business corporations, it was also possible to use those corporations and their U.S. and Canadian ''subsidiaries'' as the source of petitions and visas for some Russians.
2. Manipulable criteria.
The press commonly refers to holders of H1B visas as ''high tech workers,'' but in fact many of them are relatively low-tech workers. That is because the rather broadly written and flexible criteria for qualification make the H1B visa a vehicle to bring to the U.S. almost anyone with a college degree, often in entry- or low-level jobs. An au pair care giver with a college degree, for example, may become an H1B ''household manager.'' A degree-holder in physical education can be brought to the United Statesoften by a relativeas a tennis coach or a soccer coach.
3. Staffing ''job shops.''
In recent years, we have seen the growth in the U.S. of ''job shops'' or ''job contractors,'' who import foreign workers in large numbers and then sell their services as temporary workers to other corporations, either as replacements for existing workers or as a means of outsourcing of work previously done internally. Anecdotal evidence is that these contractors utilize up large quantities of H1B visas, and are thus major contributors to the overcrowding in the H1B category.
Page 99 PREV PAGE TOP OF DOC Because job contractors tend to be larger business enterprises, they commonly have offices in both the United States and the country that is the source of their labor supply. In that way, the local office can hire the alien in the foreign country, and employ him or her there, and then move the alien to the US by either the H1B or L1 route when the circumstances require it. If the H1B category is unavailable, L1 may become the preferred status, since it carries no numerical limit and provides for multi-person admissions through the ''blanket L'' visa procedure.
C. POSSIBLE SOLUTIONS.
1. Establish qualifying levels for Corporations utilizing ''L'' visas.
Congress intended L visas to be a training vehicle for large multi-national corporations, and to a very large extent that is exactly what they are. The great majority of L visas are bona fide. Virtually all of the fraud and abuse in this category takes place at the very lowest end of the corporate spectrum, i.e., with corporations of virtually no assets and minimal ongoing business activities.
Rather than trying to investigate and detect the present fraud on a case-by-case basis, which is extremely labor intensive and often not feasible, it would seem prudent to establish in the law some minimum level of ''substantiality'' before a corporation would be authorized to utilize L1 Intracompany Transferee visas.
The level would not need to be particularly high, simply enough to require a showing of a reasonably substantial level of business activity, to eliminate usage by either collapsible sham corporations or small enterprises which have no need of L1 personnel. I have not tried to research or develop a particular measure of baseline business activity, but it should not be difficult to settle on a revenue level, or some other indicator of substantiality, that would effectively include virtually all the bona fide L1 users that would need inclusion, while screening out the marginal or sham entities that are the source of abuse.
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2. Adjudication of H1B visas needs to focus on the core definition of the H1B ''specialty occupation.''
In the H1B category, the problem is more one of misuse and insufficiently specific standards than outright fraud. The rather loose standards for qualification as an H1B have resulted in apparent overcrowding in this category, even when the numerical limitation has been nearly doubled in the past year.
If we want to make H1B a source for truly high-tech workers, as I think we do, and at the same time relieve the overcrowding in this category, we should try to avoid having so many of the available numbers sopped up by persons with a college degree and a bit of artful packaging. We need to return to the core definition of the H1B ''speciality occupation'' in section 214(i) and give it a sharper, more tightly-connected focus, so that adjudicators will have a clear picture of the eligibility boundary lines for this category. Specifically, we should require that:
the applicant have a college degree;
the degree must be in the field in which he will be employed in the U.S.;
the occupational field must be one in which a bachelor's degree is required for entry and which requires application of a body of highly specialized knowledge (and I think adjudicators particularly need guidance in this latter area: it is simply too broadly defined and open to varying interpretations).
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In addition, policy-makers need to address such questions as, 1) to what degree should we allow H1B visas to be used for entry-level positions, and 2) do we want to put any limits on their use by job contractors.
3. To relieve overcrowding in the H1B category, further review of the standards may be necessary.
Our goal should be to upgrade the current skill level in the H1B category. To do that, policy makers should insist that, if we are to accord the alien such a high priority over U.S. workers as H1B permits, the alien possess a bachelor's degree in the field he will be working in, and not a high school or a 2-year vocational degree and several years of experience.
Specifically, to relieve the current overcrowding, Congress should examine whether section 214(i)(2)(C), permitting equivalents to the H1B educational requirements, does not significantly undermine the core definition of ''specialty occupation.'' I believe that allowing educational equivalents contributes to the lowering of the skill level in H1B and its use for relatively low-level positions.
Some may well object that removing the equivalency language would bar entry to various great talents who do not have a degree in their field. I would note, however, that such non-degree persons would not be lost to us, but would simply be asked to qualify for ''O'' rather than H1B visas, which the highly talented workers would be quite likely to do. Alternatively, those without college degrees in the field could be required to show some of the indicia of outstanding accomplishment current required for ''O'' visas. This is therefore not such a dramatic proposal as it might at first appear, and in my view, given the desirability of both upgrading the skill level and relieving the overcrowding in the category, a policy option definitely worth considering.
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Before concluding, I would like to comment briefly on J visas.
D. ''J'' CULTURAL EXCHANGE VISAS.
During the past decade, since the passage of the 1990 Immigration Act, the ''J'' cultural exchange visa has become a growing source of imported workers. Whether it is Australian ski instructors, Irish bartenders or specialty chefs, the J cultural exchange visa provides opportunities for foreign workers that were unavailable ten years ago. Since the J visa operates without a formal petition process, and is administered by the United States Information Agency rather than INS or the Department of Labor, it in many ways operates off the radar screen of traditional immigration oversight.
My sense is that the J visa program may once again need regulatory attention. After a major study of the program by the GAO in the early 1990's, USIA undertook to scrutinize and re-evaluate each individual program sponsor in the mid-1990's. The number of program sponsors has now grown to more than 1200. These sponsors operate the cultural exchange programs and are responsible for the issuance of the form IAP66 which authorizes visa issuance. USIA, which has historically shown more interest in the cultural elements of the program, will soon turn over responsibility for the J program to the State Department.
That transition would seem an appropriate point for a thorough re-evaluation of current practices. The goal should be to ensure that the integrity of the IAP66 issuance process has not been compromised, and to determine whether certain elements of the cultural exchange program have become de facto temporary worker programs. Congress may also wish to play a part, both in exercising oversight over this program, and perhaps in seeking to harmonize it with existing temporary worker programs already in the law.
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Mr. SMITH. Ms. Shotwell.
Ms. SHOTWELL. Thank you.
Mr. SMITH. And you get more than 1 minute since you have an audience here.
STATEMENT OF LYNN SHOTWELL, AMERICAN COUNCIL ON INTERNATIONAL PERSONNEL
Ms. SHOTWELL. Thank you. I am sure my mother appreciates the opportunity to see how Congress really works.
Mr. SMITH. Would you want to expand on that?
Ms. SHOTWELL. No. It is a good thing. ACIP, as you know, represents large multinational companies, and we appreciate the opportunity to testify here. What we would like to do is propose that combating fraud and expediting processing for legitimate users of visas are not contradictory goals.
I think there are a number of steps that we could put into place to both speed processing and to help screen out fraud. And one of the activities that we would propose is to establish more of a fast-track system, a way to distinguish between companies who file multiple petitions every year, petitions that are consistently approved and where there are consistently no problems, either at INS or Department of State; and put those petitions on a fast track with very limited review both at INS and the Department of State.
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I think this does two things: it gets our petitions processed and legitimate employees that we need in this country very quickly. We can have them in place to work on projects and to meet client demands. At the same time that frees resources for the Government to focus its effort on paying more attention to petitions which may be questionable and also to devoting resources to investigating fraud and perhaps helping free INS resources to deport some of the people who have entered the country fraudulently.
We are very happy to work with Congress to develop these ideas in more detail. I think there are a number of different steps we could take. Thank you.
Mr. SMITH. Thank you, Ms. Shotwell.
[The prepared statement of Ms. Shotwell follows:]
PREPARED STATEMENT OF LYNN SHOTWELL, AMERICAN COUNCIL ON INTERNATIONAL PERSONNEL
Mr. Chairman and members of the House Subcommittee on Immigration and Claims, thank you for the opportunity to testify on the impact of nonimmigrant visa fraud on U.S. employers.
The American Council on International Personnel (ACIP) is a not-for-profit trade association founded in 1972. Our mission is to facilitate the movement of personnel across national borders. We do this through educational seminars and publications aimed at helping human resource professionals understand and comply with our complex immigration laws. ACIP also works with Congress and the Administration to develop policies which help U.S. employers compete in today's global economy by ensuring access to needed professionals. ACIP has over 300 corporate and institutional members, each with at least 1,000 employees worldwide. Our members file tens of thousands of nonimmigrant visa petitions each year and devote untold resources to complying with our laws.
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In today's economy, U.S. employers must have the ability to readily deploy workers around the globe. Nonimmigrant visas are used to transfer international personnel, hire U.S.-educated foreign students who will be trained and then sent abroad, and to fill positions where sufficient numbers of qualified U.S. workers are simply not available. In most of our member companies, more U.S. citizens are sent abroad each year than foreign nationals are brought into the United States. Our immigration policies and government agencies should work in cooperation with U.S. employers to expedite this beneficial activity just as many of our foreign trading partners do.
Visa fraud interferes with this cooperative relationship by causing our government agencies to be suspicious of legitimate employers. We do not blame the agencies for they are confronted with a daunting task. Several multinational companies have reported to me that their corporate letterhead has been used in visa fraud schemes. We also know that fraudulent credentials abound. However, we should not let the presence of fraud cast a pall on all employers or ensnare the system in unnecessary red tape. We must work together to combat fraud while helping employers meet their valid personnel needs.
Fraud adds paperwork to and diverts resources from the adjudication of legitimate petitions. Currently, all employers are required to file the same documentation with each petition regardless of how many they file each year. Detailed job descriptions, copies of the foreign national's credentials, annual reports and extensive organizational and financial information often make nonimmigrant visa petitions an inch thick. This voluminous documentation combined with the increasing number of petitions being filed has led to long processing delays at the Immigration and Naturalization Service (INS) and the Department of State (State). Employers frequently wait more than a month for INS to adjudicate clear-cut L petitions which are supposed to be decided within 30 days. H-1B petitions which have no processing deadline often take several months. Once the petition is approved, the foreign national may have to obtain an appointment for a consular interview and undergo a background check before receiving the visa. This can add months to the process depending upon the country. Fraud further backlogs the process by squandering scarce visa numbers in the H-1B and permanent immigration categories.
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It is difficult for employers to plan and conduct business around these uncertainties. Failure to have the right person in the right place at the right time leads to missed deadlines, idle U.S. workers, unhappy clients and foregone business opportunities. This is not a system with which we should move into the 21st Century.
Combating fraud and expediting the processing of legitimate petitions are not contradictory goals. Our government agencies must begin to think creatively to develop new ways to use their limited resources to distinguish valid from questionable petitions. We must acknowledge that the vast majority of employers are not in the business of hiring unqualified persons, filing accommodation cases for friends and relatives, underpaying foreign nationals, or otherwise breaching our immigration laws. We should get rid of the assumption that all petitions should get the same level of scrutiny and shift the burden of determining whether a foreign national is qualified for the position to the employer.
Several simple steps could be taken to both improve processing and reduce fraud. One system ACIP would support is streamlined processing for employers with a history of filing approvable petitions and complying with our immigration laws. Such employers could obtain approval from INS and State to file petitions on a ''fast-track'' system. To speed review, minimal documentation would be filed with the petition and consular interviews could be waived. Various controls could be put in place to guard against fraud and abuse. Designated authorized signers or forms with control numbers, which are measures which used in the J program, would help INS and State identify legitimate fast- track petitions. Further, establishing dedicated processing centers for fast-track petitions would enable the agencies to get to know their customers. Then, if questions arose about the use of letterhead or the foreign national's credentials, government officials could personally contact the designated corporate authority and they could work together to quickly resolve suspicions.
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This type of system could be a win for all parties. Fast-tracked employers would file less paperwork and would receive more timely adjudications . Government resources would be freed for the adjudication of other legitimate petitions as well as for fraud investigations. Employers welcome the opportunity to work with the agencies to meet our mutually identifiable goals.
ACIP appreciates the opportunity to present our views to the Subcommittee today. We would be delighted to work with Congress and the agencies to develop these or other ideas in more detail.
Mr. SMITH. Mr. Mancini.
STATEMENT OF MARK MANCINI, WASSERMAN, MANCINI & CHANG LAW FIRM
Mr. MANCINI. Thank you, Mr. Chairman. My 1 minute summary.
I think everyone agrees that we are talking about a small number of cases here. It is bad apples in a large barrel. I agree with the previous witnesses that I think the remedy, if there is a legislative remedy, lies in you.
The definitionsI was somewhat taken aback by previous witnesses referring to marginally qualified applicants. There are no marginally qualified applicants under the statutory definition. There is qualified and there is unqualified. You can change the definition of an H1B; you can change the definition of an L1; and I think that that is not necessarily a bad thing. But it has not been changed.
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And it is unfair to use the word fraud when referring to someone, for instance, who is in overstay; that is not a fraud. Fraud is a very definite and very serious accusation against not just a petitioner but against an alien, and it shouldn't be used in that sense.
There is no definition of fraud in the act which is anotheranother issue, which raises the question of expedited removal, and the use of the term ''fraud'' in that process as well.
[The prepared statement of Mr. Mancini follows:]
PREPARED STATEMENT OF MARK MANCINI, WASSERMAN, MANCINI & CHANG LAW FIRM
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.
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NONIMMIGRANT VISASTHE 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 Statesnonimmigrantscoming 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.
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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 fraudthose 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.
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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 consequencesan 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 wellpotential 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.
2) 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.
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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.
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This situation flies in the face of our judicial tradition of due process, and, to manyboth 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.
3) 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 L1 fraud cases led INS offices around the country to refer all new office L1 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.
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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 salesdid 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.
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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 judgeor 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.
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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 agoa 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.
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Thank you for the opportunity to speak today, and I am pleased to answer any questions you may have.
Mr. SMITH. Okay. Fair enough. Thank you, Mr. Mancini.
Mr. Ratigan, your testimony was useful in that you had specific solutions in regard to the L visas, the H1Bs, and the cultural exchange visas; and you are the only individual talking about those today.
But in regard to the first two, if you will just go into a little bit more detail as to how in the case of the L visas you think we should establish those qualifying levels for the corporations; in the case of H1Bs how we might come up with a better core definition of specialty occupation.
Mr. RATIGAN. In the case of Ls, I think it should be a fairly simple task, actually, to develop some sort of measure of baseline business activity, some level, perhaps, of annual revenues that would effectively include all the bona fide L1 users while screening out the marginal and sham entities that we have heard this morning are really the source of the abuse. I would agree with many previous speakers that the high end of the L1s are really no problem at all.
As to H1Bs, I think the definition is malleable and that we need to return to what I would call the core definition of the ''specialty occupation.'' Specifically, we should require that the applicant have a college degree; that the degree be in the field in which he will be employed in the United States; and that the occupational field be one in which a bachelor's degree is required for entry and which requires, as the statute now says, application of a body of highly specialized knowledge. But I think it is in this area in particular that adjudicators need some guidance and some help.
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I think these phrases such as ''bachelor's degree required for entry'' and ''body of highly specialized knowledge'' are rather broadly written, and that they are susceptible to differing interpretations.
Mr. SMITH. Okay. Ms. Shotwell, I am going to ask you to respond to Mr. Ratigan's proposals for improving what we might say the H1B or L visas and whether you agree that that would be an improvement.
Ms. SHOTWELL. I think there areI wouldn't disagree with what he said, and I think it would be a great opportunity for Congress to take a look at how we can maybe tighten some of those categories to the extent that we can link abuses in the program with specific criteria.
One of things we have looked at doing is maybe expanding the Blanket L Visa program. I think that has been
Mr. SMITH. What is that?
Ms. SHOTWELL. The Blanket L Visa program, which is a programwhich allows companies of a certain size that do a certain number of visa petitions to go through an expedited process.
Mr. SMITH. This is your fast-track proposal?
Page 119 PREV PAGE TOP OF DOC Ms. SHOTWELL. The blanket L is similar to the fast track, but I think the fast track idea could be extended to other categories and that we could put some controls in place like we have in the J program.
I think simple steps like having designated signers within a company or having controlled forms would help guard against fraud and insure that certain petitions have gone through an appropriate screening process within the company.
Mr. SMITH. So you would support both having the minimum qualifying levels in some visas but also rewarding individuals who have played by the rules for a long time and making the process easier for them?
Ms. SHOTWELL. I think we could support both.
Mr. SMITH. Mr. Mancini, you have had 25 years as an immigration lawyer.
Mr. MANCINI. For better or worse.
Mr. SMITH. Should we admit that publicly? What?
Mr. MANCINI. For better or worse.
Mr. SMITH. Well, you have been practicing for a long time, and you no doubt have been an eyewitness to many of the different types of fraud. Give us an example ofwhen you talk about the definition of fraud, what are you talking about?
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Mr. MANCINI. Well, I am talking about
Mr. SMITH. And particularly in regard to the L and H1B categories.
Mr. MANCINI. There are six elements of fraud set forth. I know you don't want to hear those, but the petitionto do all six is quite an achievement, but I have seen, certainly, lying on I129s, nonimmigrant worker petitions. I have seen what was referred to as packaging on I129s. It isas I say, it goes back to the statutory definition, which is a very liberal definition.
The donut shop example was an example which I could well believe because at no point are you asked if it is a donut shop. It is a corporation. It is a legitimate corporation that exists under the laws of State which it is incorporated. It could pay the salary of a comptroller and the person had the bachelor's degree to qualify as a comptroller.
I have seen that many times. I would not call it fraud. I would call it an abuse, and I believe that the remedy lies, as was previously stated, in either changing the statutory definition to tighten it up or to
Mr. SMITH. Should anything happen to those individuals whom you identify as abusers as opposed to
Mr. MANCINI. I am sorry. I didn't hear that.
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Mr. SMITH. Should anything happen to people whom you identify as abusing the system rather than using fraudulent documents?
Mr. MANCINI. Under the present statute, there is no remedy for service, I don't believe, because the facts on the petition are true as stated. You didn't ask the right questions, that is the answer.
Mr. SMITH. And immigration lawyers are very good at finding those loopholes.
Mr. MANCINI. We are adept.
Mr. SMITH. Thank you, Mr. Mancini. I thinkwe are expecting a vote in 4 minutes. I think we don't need to ask you-all any more questions. We appreciate your being here and contributing to this hearing, and if I didn't do so, we will have your entire opening statements made a part of the record so we can have the advantage of that as well. Thank you all for being here.
[Whereupon, at 12 p.m., the subcommittee was adjourned.]