Fraud in Foreign Labor Contracting - 18 U.S.C. § 1351
Most U.S. citizens have at least some understanding of the country's labor laws and what employers may or may not do. Foreigners coming into the country often do not, making them potentially vulnerable.
Additionally, foreigners entering the country can't easily turn down a job offer or return home if "bait-and-switch" tactics are used to lure them into the country and then change the terms of their employment.
In other words, since many people are interested in coming to live and work in the United States, anyone offering work to foreigners is often overwhelmed with applications.
Employment-based immigration is legitimate, and employers can sponsor immigrants to come to the United States to work temporarily or permanently and begin getting a green card. However, when employers advertise work or solicit foreign employees, they must be honest in explaining the terms and conditions of employment.
For these reasons, it's a federal crime under Title 18 U.S. Code 1351 to engage in fraud in labor contracting, as these practices are called. If you're charged with violating this statute, you could face up to five years in federal prison if convicted.
18 U.S.C. 1351(a) Work Inside the United States says, “Whoever knowingly and with intent to defraud recruits, solicits, or hires a person outside the United States or causes another person to recruit, solicit, or hire a person outside the United States, or attempts to do so, for purposes of employment in the United States by means of materially false or fraudulent pretenses, representations or promises regarding that employment shall be fined under this title or imprisoned for not more than five years, or both.”
What Does the Law Say?
Under 18 U.S.C. 1351, it is a violation of federal law to "willfully, and with intent to defraud," recruit or hire someone outside the U.S. for employment under false or fraudulent pretenses—such as making false promises or misrepresentations regarding working conditions.
This law naturally applies to every situation where a foreigner is recruited to work in the U.S. However, it also applies to specific situations outside the U.S., including the following:
- Recruiting for U.S. government contract work taking place outside the country.
- Recruiting for employment on a U.S. military base outside the country or for a particular mission or
- Recruiting for employment to occur on U.S.-owned property outside the country.
What is Fraud in Foreign Labor Contracting?
Common scenarios of fraud in foreign labor contracting may include, but are not limited to, the following:
- Exaggeration of Job Role: The employer might exaggerate the nature of the job, implying a higher position or more responsibilities than what the actual role entails.
- False Representation of Working Conditions: An employer may falsely present the working conditions as far better than they are. This could include misrepresenting the number of working hours, the safety measures in place, or the availability of amenities and benefits.
- Misrepresentation of Wages: A common fraudulent tactic is to promise high wages or salary increases that the employer does not intend to deliver.
- Hidden Costs or Terms: Employers may hide certain costs or terms of the contract, such as the requirement for the employee to pay for their own visa or travel expenses, fees for housing, labor brokers, food and transportation, or a clause that allows the employer to change the contract terms unilaterally.
Notably, dishonesty in any aspect of the work arrangement could be considered fraud if the issue is a material aspect of the work that is being advertised.
Anyone outside of the United States could also be charged under section 1351 if they use false statements or fraudulent pretenses to advertise jobs to people outside of the country if the jobs advertised are performed on a government contract or a United States military base.
Defendants could also be charged with other crimes, including career opportunity scams and wire fraud, depending on the specific details of the fraud scheme. One misleading advertisement might lead to multiple criminal charges in federal court.
What Are the Elements of the Crime?
To convict you of a crime under 18 U.S.C. 1351, prosecutors must prove the following elements beyond a reasonable doubt:
- You Contracted a Foreigner for Employment: You recruited, solicited, or hired a person outside the United States for employment within or outside the country about American interests.
- Intent to Commit Fraud: You had the specific intent to commit fraud when making false or fraudulent promises or representations.
- Materiality: The false or fraudulent promises or representations were material; that is, they could influence the decision of the person being recruited or solicited.
- Reliance and Harm: The foreign worker relied on false or fraudulent promises or representations and suffered harm.
What are the Related Federal Laws?
18 U.S. Code Chapter 63, Mail Fraud and Other Fraud Offenses, has several federal laws that are related to section 1351, Fraud in Foreign Labor Contracting, including the following:
- 18 U.S.C. 1341 - Frauds and swindles,
- 18 U.S.C. 1342 - Fictitious name or address,
- 18 U.S.C. 1343 - Fraud by wire, radio, or television,
- 18 U.S.C. 1344 - Bank fraud,
- 18 U.S.C. 1345 - Injunctions against fraud,
- 18 U.S.C. 1346 - Definition of “scheme or artifice to defraud,”
- 18 U.S.C. 1347 - Healthcare fraud,
- 18 U.S.C. 1348 - Securities and commodities fraud,
- 18 U.S.C. 1349 - Attempt and conspiracy,
- 18 U.S.C. 1350 - Failure of corporate officers to certify financial reports.
What Are the Penalties for Fraud in Foreign Labor Contracting?
Violating U.S.C. 1351 is a felony offense under federal law. If you're convicted of fraudulently recruiting/hiring foreign laborers, you could face the following:
- Fines of up to $250,000 and
- Up to 5 years in federal prison.
What Are the Defenses for 18 U.S.C. 1351?
Despite the seriousness of these federal charges, a skilled federal criminal defense attorney can raise several effective defenses to combat these accusations. Some common defenses include the following:
- Lack of Knowledge: If your attorney can present evidence that you were unaware that your actions or the information you provided were false or misleading, you may be absolved of the charges.
- Lack of Intent: A vital element of this charge is willful intent; prosecutors must show that you intended to defraud your foreign recruits. Your attorney can present arguments and evidence to refute the notion that you had any such intent.
- No Material Misrepresentation: Your attorney may contend that any misrepresentations you might have made were not material, i.e., they would not have influenced the decision of the person being recruited or hired.
If guilt is not in doubt, perhaps we can negotiate plea agreements or explore other ways to minimize jail time and fines for conviction.
Our law firm has decades of experience handling federal criminal cases, and we represent United States citizens and businesses and foreign individuals and entities facing criminal charges in federal and state courts in the United States. Eisner Gorin LLP has offices in Los Angeles, California.