Immigration is a complicated area to navigate, and individuals who are seeking assistance can be particularly vulnerable.  Law enforcement in New York and federal authorities want to be vigilant about catching and prosecuting fraudulent services for immigrant assistance.

New York makes provision of certain types of assistance illegal unless a person or entity is properly qualified.

Examples

Immigrant assistance services fraud in New York is outlined in a purposefully broad statute.  The following examples describe circumstances where charges of immigrant assistance services fraud may be brought in New York:

• One avenue for immigrating to the U.S. is through a family relationship.  George charges foreign citizens to receive a U.S. citizen contact that will be their spouse for the purposes of an immigration application.  The individuals do not establish a genuine relationship before petitioning.  George is at risk of prosecution.
•  Laura, a trained and experienced nurse, has been through the immigration process and seen a few friends go through it.  She believes she can offer assistance to others that are attempting to figure out what to do.  In order to market her services, Laura advertises herself as an “immigration expert.”  Laura is at risk of prosecution.
• Jack offers services to help prepare documents for individuals submitting visa applications and related forms.  Jack’s college roommate now works for the Department of Homeland Security.  When working with some clients who have urgent immigration needs, Jack offers a paid “expedited” package.  He shares that he has a personal connection that can get applications seen faster.  Jack is at risk of prosecution.

The Legal Definition of Immigrant Assistance Services Fraud 

New York Penal Law, combined with provisions of New York General Business Law, establishes the crime of immigrant assistance services fraud. In order to satisfy the definition of immigrant assistance services fraud, a person must meet three elements:

1.     Intent
2.     Commission of a prohibited act
3.     Property obtained wrongfully

There are nuances and details that are essential to understanding these elements.  Let’s take a closer look at each of the elements in the following sections.

Element #1: Intent

The element of intent establishes a person’s mindset at the time the alleged crime was committed.  If a person purposefully takes or avoids a certain action, that is intent.  The element of intent also seeks to establish if a person was taking that action for a specific purpose.  In order to satisfy this element, there are two types of intent that must be established:

1. Intent to defraud
2. Intent to obtain property

The intent to obtain property is through a purpose that is not truthful or forthcoming.  The intent to obtain property is through the use of some fraud or deception.  The intent to defraud is towards someone seeking immigrant assistance services.

When considering the elements of a fraud crime, People v. Dallas stated that the intent to defraud does not have to be an intent to target a specific person, but just an intent to defraud any person.  For purposes of the crime of immigrant assistance services in New York, the intent to defraud does not need to target a specific person with those services.

Element #2: Commission of a Prohibited Act

The criminal statute points to New York General Business Law terminology to define the prohibited acts that, if committed, satisfy the second element of the crime. In order to meet the definition of a prohibited act, the action in question must be performed by a “provider.”  The statute defines a provider by specifying exceptions.

Individuals and organizations that are appropriately licensed, certified or authorized to provide legal advice or immigration assistance, and non-profit, tax-exempt organizations that charge no more than a nominal fee to provide immigration assistance are not providers.

The statute outlines fifteen categories of acts that providers are prohibited from performing.[4]  The specified prohibitions cover a few general areas:

1. Performing work that requires a license without having the appropriate license, or otherwise claiming expertise;
2. Knowingly making or causing a false statement or government submission to be made;
3. Claiming a special status, influence, or ability to expedite government processing;
4. Making unsubstantiated guarantees or representations;
5. Taking money without doing or being able to do whatever was paid for; and
6. Threatening the immigration status or application of the person seeking assistance.

Element #3: Property Obtained Wrongfully

The final element that must be proven for a conviction requires wrongfully obtaining the property that was intended to be obtained through the fraud.

For immigrant assistance services fraud in the first degree, the property value must exceed $1,000. There is no value threshold for a second-degree conviction.

Related Offenses 

Immigrant assistance services fraud is a crime that focuses on a specific subset of individuals or entities.  There are related offenses that these same people can be charged with in addition to or in lieu of immigrant assistance services fraud in New York.

In addition, there are related crimes that can be used to charge anyone not considered a “provider” under the immigrant assistance services fraud.

Federal Fraud Charges

Given that immigration is an issue of federal law, it is not surprising that there are statutes establishing crimes for fraudulent behavior related to immigration.  One relevant federal crime is the fraud and misuse of visas, permits, and other documents.

This law criminalizes any action done in furtherance of fake or otherwise improper immigration documents. Under this statute, it is a crime to make, possess, or use fake documents or the plates used for the creation of documents.

It is also a crime to make materially false statements for a required immigration document, to knowingly present a document containing a material falsehood, or to knowingly use a problematic document.

Offering a False Instrument for Filing

Anyone, including those individuals and entities excluded from the definition of “provider” under the immigrant assistance services fraud, can be charged with offering a false instrument for filing.  The elements of this crime are:

1. Intent to defraud a government or public entity;
2. Knowing a document contains false information;
3. Presentation of that document to a government or public entity; and
4. Knowledge or belief that the problematic document will be filed with that government or public entity.

Essential and Impactful Cases on Immigration Fraud 

Court cases can provide additional insight into the nuances of an immigrant assistance services fraud conviction.  In particular, courts may explore the elements that are necessary for the prosecution to prove or the evidentiary burden involved.  Conversely, a particular case may shed light on an opportunity for defending against these charges.

Some important cases are discussed below:

• The case of People v. Dallas did not consider immigrant assistance services fraud, but another type of fraud.  However, it is relevant for consideration here because it looks at a necessary element of this crime: intent to defraud.  In that case, a man was convicted on four counts of criminal possession of a forged instrument.

On appeal, he argued that the prosecution did not meet its burden of proof because it did not demonstrate any particular person who he intended to defraud.  The court did not agree with this argument.  It was sufficient to prove that there was an intent to defraud anyone. In the Dallas case, it can be inferred that a forged instrument will be used at some point to defraud a person.

In an immigrant assistance services fraud case, a case such as one in which a person who was not a lawyer held himself out to be a lawyer offering immigration assistance would likely be a sufficient intent to defraud without showing a specific target.

• The case of In re Lefkowitz directly dealt with an attorney who would not have been considered a “provider” under the immigrant assistance services fraud statute.  However, it was the fraudulent actions of individuals and entities that were not attorneys that led to the criminal issues for Mr. Lefkowitz.

The fraudulent scheme involved one individual and one company that offered immigration assistance.  The non-attorneys completed and filed applications on behalf of immigrant clients and paid Mr. Lefkowitz for representation if a court appearance was needed.

The issue was that Mr. Lefkowitz was essentially serving as a cover for the fraudulent scheme and aiding the non-attorneys in fraudulently presenting themselves as being able to perform the role of a lawyer.  While he was not convicted under the immigrant assistance services fraud statute, Mr. Lefkowitz faced disciplinary action.

• The case of People v. Michael addresses the issue of proving the element of the wrongfully obtained property.  That case did not deal with immigrant assistance services fraud, but insurance fraud.  However, fraud crimes have some similar elements such as the property obtained wrongfully.

This impact from the crime needs to be proven for a conviction.  There, the proof was a sworn insurance claim for $75,000.  There was no proof that the insurance company paid the claims.  However, the insurance fraud statute has one important difference.

Attempting to obtain the property also fulfills that element.  As that is not the case with this statute, the burden of proof is higher and requires showing the property was in fact obtained.

Detection, Investigation, and Prosecution 

The New York Attorney General has made fighting immigration fraud a priority, emphasizing its importance at the national level as well.  The initiative to combat immigration fraud has tasked the Civil Rights Bureau within the Attorney General’s office with investigating immigrant assistance services fraud.

In particular, they are looking at individuals and entities that are unqualified and use false promises to lure members of immigrant communities.  If potential cases of immigrant services fraud are identified, the Attorney General’s office will prosecute these cases.

How to investigate possible fraud assisting immigrants?

In New York, the Mayor’s Office of Immigrant Affairs (MOIA) has rolled out public resources to investigate possible immigrant assistance services fraud.  This is initiated through the New York State Office of New Americans.  In addition, they offer a legal screening resource, called ActionNYC, which ensures that individuals only work with qualified immigration lawyers.

These cases may also have a corresponding federal charge.  If so, the U.S. Citizenship and Immigration Services (USCIS) at the Department of Homeland Security will investigate.  The office within USCIS is Homeland Security Investigations.  A U.S. Attorney from the Department of Justice will prosecute the charges as appropriate.

Depending on the nature of the fraud, other federal agencies may be involved.  For example, fraud in the foreign worker’s visa scheme may need help from the Department of Labor, and certain types of fraudulent documents may need help from the Internal Revenue Service for investigation and prosecution.

Statutory Penalties for Immigrant Assistance Services Fraud 

New York law sets out criminal and civil penalties for immigrant assistance services fraud.  The penalties depend on the degree of the charge.

• Immigrant assistance services fraud in the second degree is a class A misdemeanor, which carries a prison sentence of up to one year. It also carries a fine of up to $1,000.
• If the property obtained exceeds $1,000, it could be a first-degree charge.  Immigrant assistance services fraud in the first degree is a class E felony, which carries a prison sentence of up to four years. It also carries a fine $5,000.

In addition to the criminal statute, New York General Business Law sets out civil enforcement pathways.  For this pathway, only the second element needs to be met.  If a provider commits a prohibited act, the New York Attorney General may issue an injunction.  That injunction requires the provider to stop the behavior that is a prohibited act.

This can be done without requiring proof of any actual harm done by their actions.  A court can also direct payment of $2,000 to the Attorney General, direct restitution to the victim, and a civil penalty of up to $10,000 for each violation.

Additional Consequences of Conviction 

Being convicted of immigrant assistance services fraud, like any conviction, can cause long-term challenges and issues.  This particular conviction involves a topic area that has national interest, which could make it attract even more attention than other crimes.  That attention is detrimental to your reputation and can continue to harm you long after any statutory penalties have been resolved.

The nature of the crime is that it involves professional services that were offered.  The conviction amounts to saying that you are not to be trusted to offer those professional services.  Likely, this will also ripple into providing other, related, professional services.  As a result, your ability to continue providing for yourself and your family will be hindered.

In addition, if you hold any professional licenses, you may face action or investigation by your oversight board.  In addition, this conviction and the deceit that is assumed will prove to be an obstacle for passing any future professional background checks or reviews.

Legal Defenses to Immigrant Assistance Services Fraud 

If you are charged with immigration services fraud in New York, you will hope to be able to defeat the charges.  In order to defend yourself against these charges, it is important to understand how you can go about this.  The statute does not specify any defenses that can certainly be used to defend against fraud, but that does not mean you don’t have options.

A skilled attorney can work to attack the evidence on each element, showing that the prosecution has not built a sufficient case against you.

Defenses that our lawyer can do.

• First, the strongest defense would be demonstrating that the General Business Law provisions do not apply to you.  Unless a person is a “provider” as defined by the statute, he or she cannot commit a prohibited act.  There are five categories of individuals and entities that are excluded from the scope of a “provider.”

In addition to being a lawyer or having federally-granted authority to appear in a certain immigration proceeding, individuals that work for organizations that are not considered providers are also excluded.

If you work for one of these organizations, a defense attorney would argue that you are acting within the scope of your employment and not independently.

• Second, the intent element is not usually an objectively proven element.  It is inferred based on circumstances and other evidence because it cannot be shown what was in your mind at the time a certain action was taken.

If the prosecutor presents evidence to establish intent, a defense attorney could try to argue an alternative interpretation that would show there was no intent.

If the intent to defraud was shown through an application form that was incorrect, a defense attorney may argue that this was an innocent error that could happen to anyone.

• The intent element in this crime is two-fold.  In addition to the intent to defraud, there also needs to be an intent to obtain property wrongfully.  If the defense can show that you did not seek payment or any remuneration, it would be sufficient to show that this intent element was not satisfied.
• There is also a factual defense if the property was never obtained.  Even if someone intended to obtain property, which would be shown by something like a bill for services rendered if the property was never actually obtained the elements of the crime are not met.  The defense would need to show that any proof submitted by the prosecution to satisfy this element is problematic in some way.

Let Us Help You 

We have local criminal law offices that are ready to help you.  You do not need to fight these charges alone.  Our team will be with you every step of the way, and the sooner you contact us, the sooner we can help you control the damage from these charges.

While we cannot completely take away your stress, we can help you navigate each step of the process.  When you are first being investigated, we can help you strategize.  There may be ways to show investigators that the charges are without merit.  If they offer a plea deal, we can help you evaluate whether it is worth taking.

Unfortunately, not every case will be resolved without going to court.  However, we have an experienced team that defends against criminal charges in court.  We will vigorously defend you.  We are ready to work on your behalf, and you can contact one of our local offices today.