Utilizing the U Visa to Combat Immigrant Services Fraud

November 10, 2011

Written by Margaret W. Serrano 1

Immigration services fraud, due to its devastation of countless vulnerable immigrant communities, has recently drawn increased attention from policy makers at the local and national levels. The New York State Attorney General’s Civil Rights Bureau rates this fraud as “an issue of national importance, affecting large segments of communities,” and has taken multiple actions against fraudulent services providers. 2  It brought one Queens county woman to court for bilking immigrants out of over $250,000 for fraudulent legal services. 3

U.S. Citizenship and Immigration Services (USCIS), the Departments of Homeland Security and Justice, and the Federal Trade Commission recently began a campaign to alert communities to the dangers of incompetent or false lawyers (or notarios) 4 who regularly prey on immigrants by offering them services that either don’t exist, or that they are unlicensed to provide. 5 New York City’s Department of Consumer Affairs has inspected over 280 immigration service providers, issuing 134 violations and $288,268 in fines. 6

This type of fraud is particularly pernicious because its perpetrators repeatedly take advantage of immigrant victims’ cultural vulnerabilities to extract from them large sums of money, without ever performing the services they have promised, or performing them at a dangerously low level of quality. “These criminal operations prey on the desperation of” victims of “very limited means[,] and an unsophisticated understanding of the U.S. immigration legal system,” explains Michael Almonte, Fragomen Fellow to the City Bar Justice Center, who is actively involved in pro bono immigrant outreach efforts in areas particularly vulnerable to immigration services fraud. 7

Perpetrators “are completely aware that their victims lack the specific knowledge necessary to contest any of the advice they are given, and would sign any and all documentation that is presented to them; as long as they receive the proper assurances from individuals that they believe are experts in the field.” 8 To make matters worse, dishonest practitioners know that most of their “victims would never be able to discover the truth about their abusive schemes until it was too late[,] and they had already found themselves thrown into removal proceedings.”  9

In addition to government-led initiatives to combat the unauthorized practice of immigration law, immigrant advocates have been active in developing mechanisms to combat this problem from their end as well. One avenue many New York area advocates have been working to open is the application of the U visa to victims of these crooked immigration services providers.

U Visa Eligibility

Congress created the U visa to incentivize undocumented immigrants to report and assist in the prosecution of crimes committed here in the U.S., by offering them a visa and path to legal residence to assuage the deportation risk that arises from any interaction with law enforcement. 10 The director of USCIS has stated that the U visa is meant, “to help curtail criminal activity, protect victims, and encourage them to fully participate in proceedings that will aid in bringing perpetrators to justice.” 11

Not just any immigrant who calls the police may obtain this visa, of course. The immigrant only attains eligibility if:

• certain statutorily specified crimes were committed against him or her, including the crimes of: abduction, incest, rape, abusive sexual contact, involuntary servitude, sexual assault, blackmail, kidnapping, sexual exploitation, domestic violence, manslaughter, slave trade, extortion, murder, torture, false imprisonment, obstruction of justice, trafficking, felonious assault, peonage unlawful criminal restraint, female genital mutilation, perjury, witness tampering, and prostitution.
• a law enforcement agency will certify that the immigrant provided assistance in the investigation or prosecution of the crime, and
• the immigrant suffered substantial physical or mental abuse as a result of the crime. 12

Extending the U Visa to Fight Immigrant Services Fraud

Immigrant advocates have recognized a potential path toward utilizing the U visa as a tool against immigration services scams within the visa’s first requirement, the types of crimes that trigger eligibility for the visa. The Immigration and Nationality Act specifies that only the offenses listed in the Act—fairly serious crimes such as trafficking, witness tampering, rape, domestic violence, obstruction of justice, and murder—qualify for this visa. 13  Additionally, the visa extends to any “similar activity in violation of Federal, State, or local criminal law,” or the “attempt, conspiracy or solicitation” of any of these. 14

In theory, the extension of the U visa to fight immigrant services fraud makes sense under the spirit of the U visa’s underlying law, given that the comments to its regulations specifically state that “[t]he list of qualifying crimes” for U visa purposes, “represents the myriad types of behavior….[or] crimes of which vulnerable immigrants are often targeted as victims.” 15 One Ninth Circuit Judge seemed to appreciate the merits of this idea.  In a case in which her court denied an immigrants’ primary request, this Judge suggested that the immigrant, instead, “may be eligible for a U visa because of the fraud of [the] notario who filed the papers requesting [her] asylum.” 17

Immigrant advocates are now working on exploring which of these enumerated U visa crime categories might cover the activities that unscrupulous immigration lawyers perpetrate against their victims, which could go a long way in encouraging fraud victims to work with authorities to stop these abuses. The best fits might lie in the categories of witness tampering, obstruction of justice, perjury, or the solicitation of any of these. Examples of activities that fraudulent legal services providers often engage in, which might equate to such criminal conduct, include the inducement of an applicant to submit false information on a petition to the government, or, for non-lawyers, committing  the crime of unauthorized practice of law.

The perjury or solicitation of perjury category appeared to apply in a test case argued recently by the New York City Bar Immigrant Women and Children Project. In that case, a service provider knowingly filed false and misleading immigration papers on behalf of a client, leading to extremely negative personal consequences for the immigrant. 18

Unfortunately, USCIS denied the City Bar’s case, despite their client’s seemingly model fulfillment of U visa requirements: he was an active church and community volunteer who suffered deportation proceedings, divorce, a family member’s suicide attempt, and health problems because of notario fraud. 19 The case is currently on appeal.

Other local immigrant advocates involved in filing or contemplating the use of U visas to protect immigrants who cooperate with authorities to stop legal services include Lynn Neugebauer of Safe Horizon’s Immigration Law Project and Rex Chen of Catholic Charities of Newark. 20  Neugebauer currently has a notario fraud U visa case currently pending before USCIS. 21 Chen has lobbied the New York Attorney General’s office to sign a U visa certification relating to case in which a fraudulent notario was shut down.  In this case, the Attorney General’s office explained that it did not wish to sign U visa certifications related to “purely civil investigations,” although Chen explained to the office that this is not necessarily a barrier under the law.

What the Future Holds for U Visa Fraud Usage

Vanessa Merton, Pace Law School Professor and Faculty Supervisor of the John Jay Legal Services Immigration Justice Clinic, recently attended a panel entitled “Rooting out Fraud, Improving the Quality of Representation,” 23 in which she heard a diverse group of prominent immigration practitioners and law enforcement personnel express their hopes and beliefs that soon it may become possible for immigrant victims of legal services fraud to obtain U visas. Among the speakers were Michael Patrick, Partner at Fragomen, Del Rey, Bernsen & Loewy; Daisy Mejia of the Immigration Affairs Program at the New York District Attorney’s Office (an office which has reportedly already issued U visa certifications for legal services fraud); and Janet Sabel, Executive Deputy Attorney General for Social Justice, New York State (reportedly open to issuing such certifications in the future).

Several factors could improve the chances of these cases’ success in the future. First, law enforcement agencies must begin to sign off on more U visa certifications of immigrants’ assistance in their investigations of fraudulent immigration law practitioners. Michael Almonte, Fragomen Fellow, predicts that this may increasingly happen as these agencies come to further “understand the concepts behind” the U visa “and how it aides them in their overall efforts to combat criminal activities like unauthorized practice of immigration law.” 24 Second, educating potential victims of immigration services fraud on the U visa’s law enforcement assistance requirements, as well as its potential benefits to them, could go a long way toward encouraging increasing use of this remedy. Over time, this could contribute greatly to reducing immigration services fraud, and protect vulnerable communities across the country.

 1.   Charles H. Revson Law Students Public Interest Fellow to the Empire Justice Center, White Plains, NY.  This article was made possible in part by funds granted by the Charles H. Revson Foundation. The statements made and views expressed, however, are solely the responsibility of the author.

 2.   About Immigration Fraud, OFF. OF THE ATT’Y GEN., STATE OF N.Y., http://www.ag.ny.gov/bureaus/civil_ rights/immigration_fraud/about_sp.html (last visited Aug. 8, 2011).
 3.   Id.
 4.  In addition to those who proffer substandard lawyers’ services to immigrants, many unscrupulous notaries in the U.S. claim to perform immigration law services by holding themselves out as notarios, who, in Latin American civil law systems, are an elevated class of lawyers who have passed a very selective governmental review process, and who are authorized to provide many legal functions. See Julia Preston, New Effort to Protect Immigrants from Tricks,” N.Y. TIMES, Jun. 9, 2011; STEPHEN ZAMORA ET AL., MEXICAN LAW Ch. 2 (2004).
 5.  Preston, supra note 3; Press release, U.S. Citizenship & Immigr. Serv., National Initiative to Combat Immigration Services Scams, (Jun. 9, 2011)(on file with author).
 6.  NYC Department of Consumer Affairs and Mayor’s Office of Immigrant Affairs Join the Departments of Homeland Security and Justice Along with the Federal Trade Commission to Announce Multi-Agency Effort to Combat Immigration Service Scams, DEP’T OF CONSUMER AFFAIRS, http://www.nyc.gov /html/dca/html/pr2011/pr_060911.shtml (last visited Aug. 11, 2011).
 7.  E-mail from Michael Almonte, Fragomen Fellow, City Bar Justice Center (Aug. 12, 2011)(on file with author).
 8.  Id.
 9.  Id.
 10.  New Classification for Victims of Certain Criminal Activity; Eligility for the U Nonimmigrant Status, 88 Interpreter Releases 25 (Jan. 3, 2011); Susana Martinez and Sheila Neville, Help for Undocumented Victims of Crime, CLEARINGHOUSE REV. J. OF POVERTY L. & POL’Y 129, 129-130 (Jul.-Aug. 2010) [hereinafter Martinez].
 11.  Press Release, U.S. Citizenship & Immigr. Serv., USCIS Publishes New Rule for Nonimmigrant Victims of Criminal Activity (Sep. 5, 2007)(on file with author).
 12.  Immigration and Nationality Act § 101(1)(15)(U); Martinez, at 130.
 13.  Id.
 14.  Id.
 15.  New Classification for Victims of Criminal Activity; Eligibility for “U” Nonimmigrant Status 72 Fed. Reg. 53014, 53018 (Sep. 17, 2007) (codified at 8 CFR pt. 103, 212, 214, 248, 274a, and 299).
 16.  Acosta v. Keisler, 258 Fed.Appx. 80 (2007).
 17.  Id.
 18.  See Posting of Suzanne Tomatore, Dir., New York City Bar Immigrant Women and Children Project, to NYC VAWA Advocates Yahoo Group (Mar. 8, 2011)(on file with author); E-mail from Michal Almonte, Fragomen Fellow, City Bar Justice Center, to Vanessa Merton, Faculty Supervisor, John Jay Legal Services Immigration Justice Clinic (Mar. 23, 2011, 10:16 EST)(on file with author).
 19.  Tomatore, supra note 17; E-mail from Suzanne Tomatore, Dir., New York City Bar Immigrant Women and Children Project (Aug. 4, 2011)(on file with author).
 20.  E-mail from Lynn Neugebauer, Supervising Attorney, Safe Horizon Immigration Law Project (Aug. 12, 2011)(on file with author) ;E-mail from Tomatore, (Aug. 4, 2011), supra note 18.
 21.  E-mail from Neugebauer, supra note 19.
 22.  Posting of Rex Chen to AILA Message Center (Feb. 11, 2011 11:47 EST)(on file with author).
 23.  Seminar Brochure, Study Group on Immigrant Representation, Innovative Approaches to Immigrant Representation: Exploring New Partnerships (May 3, 2011)(on file with author).
 24.  E-mail from Michael Almonte, supra note 6.