Combating Immigration Visa Fraud with the False Claims Act

John G. Connolly May 16, 2024

Recently, a Cincinnati-based healthcare staffing company agreed to pay $9.25 million (as well as pledging an additional $8 million for related healthcare projects) to resolve investigations into its visa sponsorship program. But this isn’t just about millions of dollars—it’s a cautionary tale of how federal authorities are wielding the False Claims Act and the Fraud Enforcement and Recovery Act to combat incidents of visa fraud and where related compliance obligations and liability risks for companies loom large.

Civil War-Era Law Targets Visa Violators: The U.S. is ramping up the use of the False Claims Act (FCA), a law dating back to the Civil War, to fight immigration visa fraud, when conducting investigations and ultimately prosecuting violators of U.S. immigration laws relating to immigrant and nonimmigrant visas. The False Claims Act was passed in response to rampant fraud by private contractors billing the government for goods not delivered. It has been amended several times over the past 150 plus years, most recently in 2009, which included improving the government’s ability to investigate fraud and false claims, expanding the scope of fraud covered by the False Claims Act.

Whistleblowers Play Key Role: Moreover, the Fraud Enforcement and Recovery Act (FERA) amendments include changes underscoring the importance of qui tam whistleblowers in combating fraud. In addition to the changes outlined above, the FERA amendments provide for freer exchange of information between federal, state, and local government attorneys and whistleblowers’ attorneys, and expand whistleblowers’ protection from employer retaliation.

Shift in Prosecution Tactics: Traditionally, federal prosecution of both individuals and corporations used the regulations in the Immigration and Nationality Act (INA) and other federal statutes, including 18 USC 1546, which deals with fraud and misuse of visas. Under these laws and regulations which carry serious penalties, a person or entity found guilty could be subject to fines, imprisonment, or both. While the actual penalty, which is dependent on the circumstances of the case, typically ranges from fines of several thousand dollars to imprisonment for several years, or both.

The FCA is known for its application in cases involving fraud against the government, typically related to contracts, procurement, or healthcare reimbursements. However, we see federal prosecutors using it in cases involving immigration fraud, like the Cincinnati-based healthcare staffing company. In the context of immigration fraud, the FCA may be invoked if an individual or entity submits false claims or statements to the government to obtain immigration benefits. The most common use so far has been in investigations that involve large scale employers of nonimmigrants and the petitions they submitted to the U.S. government. Violations of the FCA in immigration cases can include submitting false information on immigration applications or petitions.

The use of the FCA falls under civil regulations and often involves a whistleblower and can be a strong tool for the U.S. government for punishing the offenders as well as a deterrent to others. The reasons for this are simple – individuals or entities found guilty of violating the FCA in immigration cases may face significant penalties, including civil fines, treble damages (triple the number of damages sustained by the government). The FCA civil proceedings are parallel to the criminal prosecution.

Employers on Notice: To avoid FCA violations and criminal charges, employers must ensure visa applications are accurate and comply with regulations. Verification processes and internal audits are crucial for risk mitigation.

Avoiding FCA (False Claims Act) and criminal prosecution by a corporation in immigration visa matters requires careful adherence to immigration laws and regulations and accuracy in all dealings with government agencies. In addition, an employer can minimize their risks by:

  • Ensuring all visa applications and supporting documentation are accurate and comply fully with visa requirements. Any false or misleading information provided in visa applications can lead to liability.
  • Implementing robust processes for verifying the authenticity and accuracy of documents submitted with visa applications. This includes verifying the identity of applicants and ensuring that supporting documents, such as educational credentials and employment histories, are genuine.

Lastly and perhaps most importantly, a corporation should have in place internal controls and policies to include regular audits to ensure compliance with all immigration laws and regulations. This can help identify any potential issues or discrepancies before they become problematic. These policies should include procedures for employees to report any concerns or suspicions of wrongdoing related to immigration visa matters. Encourage employees to report any potential violations internally so that they can be addressed promptly.

By taking these proactive steps, employers can reduce the risk of issues in immigration visa matters and demonstrate a commitment to compliance and integrity in their interactions with government agencies. The consequences of missteps or oversights can be significant, potentially resulting in criminal prosecution, significant fines, loss of ability to apply for foreign workers and reputational loss.

Seek an Expert to Navigate the Complexities of Immigration Laws: Engaging with an expert immigration provider like Guidepost Solutions is essential. We have partnered with many U.S. employers to solve  and mitigate the government’s use of the FCA and other regulations and solidify immigration practices. In a recent case, our acumen was put to the test when a client faced a daunting government investigation, potentially culminating in a substantial enforcement fine. Our team conducted an exhaustive analysis and presented the government with a compelling alternative proposal. The government accepted the significantly reduced fine without amendments stating it was due to Guidepost’s esteemed reputation and deep-seated experience.

We fully understand the pitfalls and can guide employers through assisting in internal audits and reviews and mitigating risks before they snowball out of control. By partnering with Guidepost, employers can confidently navigate the immigration visa process and secure the workforce they need and contribute positively to both their business and the broader economy. 

Bottom Line: Employers must prioritize accuracy and integrity in immigration practices to prevent legal repercussions and contribute positively to their business and the economy.

John Connolly in a suit and tie smiling for a professional photograph

John G. Connolly

Senior Managing Director

John G. Connolly provides subject matter expertise to large, international corporations regarding employer compliance with federal immigration laws, including visa compliance and reviews and remediations of I-9 forms and the E-Verify processes. He also works with firms in conducting due diligence investigations as well as providing subject matter expertise in support of litigation. He previously served as the Deputy Executive Associate Director for the Department of Homeland Security Immigration and Customs Enforcement (DHS-ICE). There he had a wide range of management responsibilities, including supervision of Homeland Security Investigations (HSI) which included investigations involving money laundering, intellectual property rights and customs and immigration violations.

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