By: Bruce Buchanan, Sebelist Buchanan Law

Marvin Mushia Smith, a naturalized U.S. citizen, who had pled guilty on August 14, 2018, has been sentenced to 10 months imprisonment for H-2B visa fraud. According to court documents, in April 2017, agents of Department of Homeland Security identified an abnormal number of requests for H-2B visas, based on an alleged required need for non-agricultural workers.

The investigation revealed from December 16, 2014, through March 15, 2018, Smith filed fraudulent labor certification packages and fraudulent immigration petitions with the Department of Labor and/or USCIS, which resulted in the admission of more than 300 H-2B workers, all from Jamaica. The Department of Justice said the USCIS approved all 11 of Smith's H-2B petitions, in large part, because of the fraudulent contracts supplied by Smith. These fraudulent contracts were with various hotels, construction companies, and/or landscaping businesses for temporary work in the United States.

Each of the approved petitions allowed Smith to bring in a different amount of alien workers. On average, each petition allowed him to bring in about 30 workers. Furthermore, law enforcement interviewed several of the H-2B workers admitted under Smith's fraudulent H-2B packages and they said they had worked at different job sites and performed different duties than those indicated on the petitions.

The H-2B non-agricultural temporary worker program allows U.S. employers to bring foreign nationals to the United States to fill temporary non-agricultural jobs. To qualify for H-2B non-immigrant classification, an application/petitioner must establish that, amongst other things, there are not enough US workers who are able, willing, qualified, and available to do the temporary work, and that employing H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.