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 copy3 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;
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.)
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 Offices7 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
5
Id., citing to 8 CFR §103.2(b)(7).
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.
6
2
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
10
Id., at page 5.
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.
11
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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.
17
Id.
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.
18
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