In a recent article, I brought to light an existing abuse of aliens who were subjected to capping and fee-sharing by and between employment agencies and immigration lawyers. Many clients are unaware of the illegality and fraud surrounding their H-1B applications. Other clients will tolerate these abuses because they believe they have no other choice with regard to their immigration options. The purpose of this article is to educate the immigrant community as to the dangers that go hand in hand with unscrupulous employment agencies and attorneys who do not operate their business according to the basic principals of their profession. Employment agencies are known to abuse the trust of their clients, such abuses include “capping” where they send their clients to certain attorneys in return for a monetary kickback.
Employment agencies are also known to charge the client for legal fees providing only a portion of these fees to the immigration attorney, this illegal practice constitutes fraud and fee-splitting. Capping and fee-splitting by attorneys and knowledgeable paralegals and staff members is considered a misdemeanor criminal offense and repeat offenses can be prosecuted as a felony with a sentence of one to three years in state prison.
Where an employment agency may charge a client between $1,500 to $2000 in legal fees and an immigration lawyer is paid only $600 by the employment agency the client may be defrauded in an amount ranging from $900 to $1,400. Fee splitting is illegal and these fees may be recoverable under the California Business and Professions Code Section 6154.
A related problem to the abuses of fee splitting and capping is the practice of filing false H-1B documents on behalf of aliens. In these cases an employment agency and immigration attorney will file an H-1B application on behalf of a client. The problem with the H-1B application however is that the job simply does not exist.
An alien may believe that the benefit of obtaining work authorization and temporary non-immigrant status outweigh the dangers of participating in a scheme to file fraudulent H-1B applications with the United States Immigration Service. Nothing could be further from the truth. Aliens should consider all immigration options including family related visa petitions, student visas, or legitimate employment with an employer with a job description that is properly described in the H-1 B application.
It is not uncommon for H-1B applicants to later on seek permanent residence through a labor certification and filing of an immigrant visa petition, or a family related I-130 visa once a family member or spouse obtains citizenship in the United States. The problem however is that once the Immigration Service obtains a record of fraudulent representations to the INS for immigration purposes, such fraud can present a bar to future legitimate means of obtaining legal permanent residence in the United States.
Aliens often will have misgivings about submission of fraudulent H-1B applications to the Immigration Service. No matter what assurances an employment agency or attorney may have to offer, these misgivings and doubts are well founded. The fact is, the Immigration Service is aware of visa fraud, and over the years it is not difficult for the INS to identify attorneys, employers and employment agencies, who participate in H-1B visa fraud schemes. This is due to the fact that an employment agency and or attorney who has proposed an improper visa application on your behalf, may have filed hundreds of similar fraudulent applications for other persons.
Your immigration file may be compromised, and may be subject to close inspection and scrutiny as a result of association with unscrupulous employment agencies, employers and immigration attorneys. As a client of these practitioners, it may be detrimental to be associated with an attorney who has a reputation for unethical behavior.
If you or someone you know has obtained legal services through an employment agency and made payments to the employment agency for immigration benefits such as an H-1B visa application or filing a fraudulent H-1B application, it is highly recommended that you seek reputable and qualified legal counsel immediately. A well-informed and qualified practitioner can inform you of your rights, seek the return of your fees, and properly advise you as to how you should proceed with your immigration case. You deserve to have an attorney who is honest, who practices with integrity, and has your best interests in mind.