AILA DC Chap. Fall Conf. - Compl. 2011 DOL Decision Review



Analysis of DHS’ Fraud Detection Standard Operating Procedures

By Brian S. Green, Esq.[1] and Liane H. Cooney, Esq.[2]

INTRODUCTION

The recent production of a redacted copy[3] of the U.S. Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS)’s Fraud Detection and Nation Security Directorate (FDNS)’s Fraud Detection Standard Operating Procedures (SOPs) provides U.S. immigration law practitioners with a window into the methods of investigation utilized by not only FDNS, but federal agencies that cooperate with the FDNS’ Fraud Detection Branch. Practitioners should use this summary as a primer for the types of issues and cases that will cause an immigration benefits filing to be reviewed by FDNS and possibly by associated law enforcement agencies (LEAs).

History and Mission of FDNS

USCIS created FDNS in 2004 to help ensure that U.S. immigration benefits are not granted to individuals who pose a threat to our national security or public safety, or who seek to defraud the U.S. immigration system. In 2010, FDNS was elevated to the level of a directorate within DHS, giving it better operational control and resources. The stated purpose of promulgating these SOPs is to ensure the “consistent detection, documentation, and prevention of immigration fraud.” The SOPs outline the process for the intake, processing, investigation, possible referral and conclusion of fraud allegations submitted to FDNS. Investigations of immigration fraud may be referred to Immigration and Customs Enforcement (ICE) or other federal LEAs. Procedures are also outlined for handling Requests for Assistance (RFAs) received by FDNS from other government agencies.[4]

Format of SOPs

These SOPs are divided into four sections and one set of appendices. The substantive sections are:

1. Section 1 – Intake;

2. Section 2 – Administrative Investigation;

3. Section 3 – Statement of Findings; and

4. Section 4 – Request for Assistance.

See, SOPs at page 2. These four sections give FDNS Officers step-by-step instructions on the procedures to follow when new fraud referrals are received and initially processed, how to progress a case from a lead to various case phases, how to close a case and prepare required documentation (including updating FDNS’ databases), and how to handle RFAs that are received from agencies outside of DHS. Id.

Authority for FDNS Investigations

The drafters of these SOPs point FDNS Officers to the general authority of the Secretary of DHS to administer and enforce the Immigration and Nationality Act (INA) and all other laws relating to the naturalization and immigration of foreign nationals. Among the types of authority delegated from the Secretary to USCIS is the right to conduct interviews and to investigate alleged civil violations of U.S. immigration laws.[5]

It is important for practitioners to remind our clients that all petitions and applications submitted to USCIS are signed under the penalty of perjury and authorize USCIS to verify the information provided in the forms. USCIS retains the right to verify all information submitted to it in USCIS forms, whether the verification takes place pre- or post-adjudication.[6]

Duties of FDNS Immigration Service Officers

FDNS Immigration Service Officers (FD-IOs) perform administrative investigations in order to resolve inconsistencies in applications, petitions, supporting documentation (including personal history documents, educational documents, identity documents, financial documents and personal statements and affidavits) submitted to USCIS. FD-IOs may be found in USCIS Service Centers, District Offices and Field Offices[7] and may be supervised by a FDNS Supervisory Immigration Officer (FDNS-SIO). In smaller offices that do not have an FDNS-SIO, FD-IOs may report directly to a USCIS Field Office Director. Non-FDNS employees of USCIS are permitted to perform limited functions under these SOPs, which include Intelligence Research Specialists (IRSs) and Immigration Analysts (IAs). These individuals may conduct limited fraud verification work but are not authorized to conduct interviews or site visits.[8]

FDNS Organizational Structure

Within the four USCIS Service Centers exists a FDNS unit designated as the Center Fraud Detection Operation (CFDO), which includes the FD-IOs working in Service Centers and who may at times do field investigation work. FDNS staff are also located at USCIS Regional Offices and they monitor the quality of field work, help standardize field operations and perform statistical reporting to FDNS Headquarters (HQFDNS). FDNS Regional Offices are supervised by the Directorate’s Associate Regional Director (ARD) and act as a liaison between HQFDNS and the USCIS Field Office personnel.[9]

The Regional Offices also include Regional Fraud Quality Analysis Units (QAUs), who conduct reviews of all FDNS offices to determine the level of compliance with FDNS SOPs, memoranda and other guidance.[10]

FDNS has personnel at the USCIS National Benefits Center in its FDNS Operations unit, which is responsible for reviewing suspected fraud, national security or public safety concerns early in the adjudication process. This unit also works with the Federal Bureau of Investigations (FBI) to review FBI LetterHead Memorandums (LHMs) for national security, public safety and fraud impacts on pending USCIS benefits. FDNS Operations distributes LHMs to USCIS Field Offices and Service Centers and its IOs assist Field Offices with the investigation of marriage and employment fraud cases, including participation in administrative site visits.[11]

FDNS-IOs are embedded within various offices of the USCIS Refugee Affairs, Asylum, and International Operations (RAIO) Directorate, which involves the placement of IOs both inside the U.S. and at USCIS offices overseas.[12]

FDNS Data Systems

The SOP describes the FDNS Data System (FDNS-DS) as “integral” to the mission of the directorate as the main tool for logging, tracking and recording tips, investigations and data collected by FDNS officers. Officers are instructed to log all leads into FDNS-DS, in order to maximize data integrity and to allow for better analysis. To this end, all investigations are expected to be fully documented in the data system, including all actions and findings.[13]

Fraud Investigations

Most FDNS investigations fall under the authority granted by INA §2126(a)(6)(C)(i),[14] which many practitioners are familiar with from clients who have been found to be inadmissible to the U.S., or ineligible for visas, for instances of fraud or for making misrepresentations. FDNS is charged with administratively investigating indications of benefit fraud and producing a Statement of Findings (SOF) that may be used by USCIS Adjudicators in the adjudication of USCIS petitions or applications.

The SOP broadly defines fraud as “any manifestation by words or conduct by one person to another that, under the circumstances, amounts to an assertion not in accordance with the facts, an untrue statement of fact, or an incorrect or false representation.”[15] It also notes that fraud can occur through an act of omitting a fact when responding to a question posed under the authority of USCIS. The SOP states that establishing the elements of fraud under 212(a)(6)(C)(i) is “at the core of the work performed during an FDNS fraud investigation.”[16] Even where an FDNS investigation does not reveal evidence sufficient for USCIS to make a finding that an applicant or beneficiary is inadmissible under 212(a)(6)(C)(i), it may be substantial enough to allow a USCIS adjudicator to deny a petition or application. The USCIS adjudicator would rely on the SOF prepared at the conclusion of the administrative investigation in drafting a denial of benefits under the INA that is based in facts and evidence collected by FDNS Officers.[17] FDNS assists other ICE and other LEAs in investigating both individuals and companies or groups that conspire to defraud USCIS or other U.S. agencies. FDNS assists these LEAs in determining how to apply the INA and other immigration-related authority to specific immigration benefit fraud and “public safety” cases.[18]

Takeaways for Practitioners

It is important for immigration attorneys to understand how FDNS investigates and collects information on our clients and may provide information to USCIS adjudicators that leads to the denial of petitions or applications or even to lifetime bars on admissibility for individuals. The SOP gives step-by-step instructions for the intake, processing and analysis of leads and the conduct of FDNS administrative investigations.[19] Guidance on how to prepare Statements of Findings and respond to Requests for Assistance (RFAs) lodged by law enforcement and “intelligence agencies.”[20] While these sections of the SOPs were heavily redacted during the FOIA process, enough information remains to help private counsel prepare for cross-examination of FDNS Officers in potential law suits challenging USCIS findings based on FDNS investigations. The appendices at the end of the SOPs are useful and include a list of acronyms commonly used in FDNS and immigration cases,[21] a glossary of commonly used terms,[22] a chart of (heavily redacted) examples of immigration benefits fraud,[23] and a sample FDNS Fraud Referral Sheet.[24]

Conclusion – Insight into Growing Investigation Power

Any immigration attorneys who seek to challenge a potentially improper benefits denial or finding of inadmissibility made by USCIS should be familiar with FDNS’s SOPs. Understanding how FDNS Officers are supposed to collect information, document it in the FDNS-DS system and prepare SOFs, may permit the preparation of more productive FOIA requests and challenges to denials in Motions to Reopen or Reconsider or appeals to USCIS’s Administrative Appeals Office (AAO). These FDNS SOPs should be a resource for those private counsel who represent any individuals or organizations that seek immigration benefits and thereby expose themselves to tracking and investigation by FDNS.

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[1] Brian Green is an experienced business immigration lawyer, trial attorney and litigator who practices at Murthy Law Firm in Owings Mills, Maryland and focuses on DOL, CBP, DOS, employer compliance, investigation and federal litigation cases. He served on the AILA DC Chapter’s Fall Conference Committee for several years and was a vice-chair in 2012 and 2013. He also served on AILA’s National Consumer Protection and UPL Action Committee. He received his J.D. from Case Western Reserve University and B.A. from Washington & Jefferson College.

[2] Liane H. Cooney is a Partner in the McLean, Virginia office of Berry Appleman & Leiden. She is a former Chair of the AILA Vermont Service Center Liaison committee and served on that committee from 2009 to 2013. Liane received her J.D. from George Washington University and her B.A. from the University of North Carolina.

[3] These SOPs were released with DHS on March 17, 2011 but recently produced to Peter Williamson (a former AILA National President) in response to his Freedom of Information Act (FOIA) request and are available at AILA InfoNet Doc. No. 14092342 (posted Sept. 23, 2014).

[4] See FDNS Fraud Detection Branch SOPs, AILA InfoNet Doc. No. 14092342 (posted Sept. 23, 2014) at page 1. (Please note that references herein refer to the pagination originally listed by FDNS and not the page numbers added by AILA at the bottom right of each page. This is being done so that practitioners can use the Table of Contents at the beginning of the SOPs.)

[5] Id., citing to 8 CFR §103.2(b)(7).

[6] Id., citing to 8 USC §§1103, 1155, 1184, and 8 CFR parts 103, 204, 205, 207-209 and 2014.

[7] The SOPs use the term “Field Office” broadly to include District Offices, Field Offices, Asylum Offices and Overseas Offices. Id., at page 3.

[8] Id.

[9] Id., at page 4.

[10] Id., at page 5.

[11] Id.

[12] Id.

[13] Id. at page 6.

[14] INA §212(a)(6)(C)(i) states that “any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the U.S. or other benefit provided under the INA is inadmissible.” Id.

[15] Id.

[16] Id.

[17] Id.

[18] Id., at page 7.

[19] Id., at pages 8-40.

[20] Id., at pages 41-47.

[21] Id., at A1-A4.

[22] Id., at B1-B3.

[23] Id., at C1-C9.

[24] Id., at D1-D3.

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