Immigrant Assistance Services Fraud
In 2014, New York State passed two Immigrant Assistance Services Enforcement Act. As part of that act, New York passed two Immigrant Assistance Service Fraud charges, designed to protect immigrants from consumer fraud. Currently, all five of the New York City District Attorney’s Offices and many District Attorney’s Offices outside New York City have dedicated bureaus dedicated to handling immigrant assistant services fraud cases.
Specifically, these two New York Immigrant Assistance Service Fraud Charges are:
- Immigrant Assistance Services Fraud in the First Degree (PL 190.89)
- Immigrant Assistance Services Fraud in the Second Degree (PL 190.87)
The difference in these charges is explained below.
Immigrant Assistance Services Fraud in the Second Degree (PL 190.87)
Under New York Penal Law 190.87, the crime of Immigrant Assistance Services in the Second Degree has the following elements:
- Intent to defraud another person seeking immigrant assistance services as defined in article twenty-eight-C of the General Business Law, AND
- Violation of section four hundred sixty-d of the General Business Law with intent to obtain property from such other person by false or fraudulent pretenses, representations or promises, and thereby wrongfully obtains such property.
What Are Immigrant Assistance Services as Defined in Article 28-C of General Business Law?
Under Article 28-C of the New York General Business Law, Immigrant Assistance Services means:
- Providing Assistance for a fee or for other compensation,
- To persons or the person’s representatives who have, or plan to come, to the United States from a foreign country,
- In relation to any proceeding, filing or action affecting the non-immigrant, immigrant or citizenship status of a person,
- Which arises under the immigration and nationality law, executive order or presidential proclamation, or which arises under actions or regulations of the United States citizenship and immigration services, the United States Department of Labor, or the United States Department of State.
What Does General Business Law Section 460-d Prohibit?
General Business Law § 460-d contains 15 subdivisions, all of which are “prohibited acts” and contains 15 subdivisions. Under General Business Law § 460-d, no person, corporation, partnership, limited liability corporation, or sole proprietorship that provides immigrant assistance services SHALL NOT:
1. Give legal advice, or otherwise engage in the practice of law.
2. Assume, use or advertise the title of lawyer or attorney at law, or equivalent terms in the English language or any other language, or represent or advertise other titles or credentials, including but not limited to “notary public”, “accredited representative of the board of immigration appeals,” “notario public”, “notario”, “immigration specialist” or “immigration consultant,” that could cause a customer to believe that the person possesses special professional skills or is authorized to provide advice on an immigration matter; provided that a notary public licensed by the secretary of state may use the term “notary public.”
3. State or imply that the provider can or will obtain special favors from or has special influence with the United States Citizenship and Immigration Services (“USCIS”), the United States Department of Homeland Security, the Executive Office for Immigration Review or any other governmental entity.
4. Threaten to report the customer to immigration or other authorities or threaten to undermine in any way the customer’s immigration status or attempt to secure lawful status.
5. Demand or retain any fees or compensation for services not performed, services to be performed in the future, or costs that are not actually incurred.
6. Advise, direct or permit a customer to answer questions on a government document, or in a discussion with a government official, in a specific way where the provider knows or has reasonable cause to believe that the answers are false or misleading.
7. Disclose any information to, or file any forms or documents with, immigration or other authorities on behalf of a customer without the knowledge or consent of the customer except where required by law. A provider shall promptly notify the customer in writing when such provider has disclosed any information to or filed any form or document with immigration or other authorities when such disclosure or filing was required by law and done without the knowledge and consent of the customer.
8. Fail to provide customers with copies of documents filed with a governmental entity or refuse to return original documents supplied by, prepared on behalf of, or paid for by the customer, upon the request of the customer, or upon termination of the contract. Original documents must be returned promptly upon request and upon cancellation of the contract, even if there is a fee dispute between the immigration assistance service provider and the customer.
9. Make any misrepresentation or false statement, directly or indirectly.
10. Make any guarantee or promise to a customer, unless there is a basis in fact for such representation, and the guarantee or promise is in writing.
11. Represent that a fee may be charged, or charge a fee for the distribution, provision or submission of an official document or form issued or promulgated by a state or federal governmental entity, or for a referral of the customer to another person or entity that is qualified to provide services or assistance which the immigrant assistance service provider will not provide.
12. For a fee or other compensation refer a customer to an attorney or any other individual or entity that can provide services that the immigrant assistance service provider cannot provide.
13. Give advice on the determination of a person’s immigration status, including advising him or her as to answers on a government form regarding such determination.
14. Promise to expedite immigration or other immigration related governmental benefit processes, through claims to have special relationships with or special access to government employees who will expedite applications or issue favorable decisions for any reason other than the merits of the application.
15. Knowingly provide misleading or false information to a non-citizen about his or her individual or family’s eligibility for immigration benefits or status, or to non-citizens or citizens about their individual or family’s eligibility for other government benefits, with the intent to induce an individual to employ the services of the service provider to obtain such immigration benefits or status, or such other government benefits.
Penalties and Sentencing for Immigrant Assistance Services Fraud in the Second Degree
Under New York Law, Immigrant Assistance Services Fraud in the Second Degree is a Class “A” Misdemeanor. As such, this particular charge is punishable by:
- Up to 1 year in prison;
- Three years probation;
- Conditional Discharge (with conditions imposed by the court such as no new arrests, completion of conditional discharge, restitution payments);
- Unconditional Discharge (no conditions imposed by the court as part of the plea);
- Time served (even if the only time was waiting to see the judge after arrest).
Immigrant Assistance Services Fraud in the First Degree (PL 190.89)
New York also has an Immigrant Assistance Services Fraud charge, which is a felony. This charge is called Immigrant Assistance Services Fraud in the First Degree and is codified in New York Penal Law Section 190.89. This charge is identical to New York Immigrant Assistant Services Fraud in the Second Degree, when s/he wrongfully obtains property with. value of over $1,000.
This additional requirement bumps up Immigrant Assistance Services Fraud from a misdemeanor to a felony charge.
Penalties and Sentencing for Immigrant Assistance Services Fraud in the First Degree
Under New York Law, Immigrant Assistance Services Fraud in the First Degree is a Class “E” Non-violent Felony. As such, this particular charge is punishable by:
- Jail time up to 1 1/3 to 4 years (this is called an indeterminate sentence);
- Determinate sentence of 1 year in prison or less if there are mitigating circumstances;
- Conditional Discharge (with conditions determined by the Court, such as completion of community service or payment of restitution);
- Unconditional Discharge (no conditions imposed by the Court as part of the plea).
Frequently Asked Questions Regarding Immigrant Assistance Services Fraud
1. What Should I Do If I Am a Victim of Immigrant Assistance Services Fraud?
If you are a victim of immigrant assistance services fraud, you may want to consider filing a report with the Attorney General’s Office for your state and/or the Attorney Bar Association. U.S. Citizenship and Immigration Services (USCIS) provides a list of where immigration assistance services fraud need to be reported.
If you are located in New York City, you may want to contact the District Attorney’s Offices directly:
- Bronx District Attorney’s Office – Immigrant Affairs Unit (844)590-7226
- Brooklyn District Attorney’s Office – Immigrant Affairs Unit (718)250-3333
- New York County District Attorney’s Office – Immigrant Affairs Unit (212)335-3600
- Queens County District Attorney’s Office – Office of Immigrant Affairs (718)286-6690
- Richmond County District Attorney’s Office – Immigrant Affairs Unit (718)697-8326
2. What is the Statute of Limitations for Immigrant Assistance Services Fraud?
Under New York Law, the statute of limitations depends on the severity of the criminal charge. As such, the statute of limitations on these charges is:
- Immigrant Assistance Services Fraud in the First Degree (Class “E” Non-violent felony) – 5 year statute of limitations;
- Immigrant Assistance Services Fraud in the Second Degree (Class “A” Misdemeanor) – 2 year statute of limitations.
It is important to consult an experienced criminal defense attorney for assistance with determining whether the statute of limitations on your case has run. The statute of limitations can be tolled, or suspended, for a number of reasons.
3. Which Agencies Investigate Immigrant Assistance Services Fraud?
Many different agencies investigate New York Immigrant Assistance Services Fraud, such as:
- New York Attorney General’s Office;
- District Attorney’s Offices;
- State Attorney Licensing Boards;
- New York City Police Department;
- New York State Troopers;
- U.S. Immigration and Customs Enforcement
4. Will I Be Required To Pay Restitution as Part of a Plea for Immigrant Assistance Services Fraud?
You may be required to pay back restitution as part of your criminal case. However, even if the District Attorney’s Office does not pursue restitution, you can be sued in a different proceeding in civil court.
Contact Top Rated New York Immigrant Assistance Services Fraud Criminal Defense Lawyers
If you or a loved one has been arrested or indicted for Immigrant Assistance Services Fraud, you need experienced counsel by your side to challenge the case and tackle the evidence. Please call us at 212-729-9494 or contact us today to schedule your initial consultation and see how we can help.