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The Next Big One: FCPA and Immigration

Immigration is certainly getting a lot of attention these days in the United States, but companies that assign workers around the world know that the United States is not the only country with complex immigration laws and procedures. The crazy quilt of visas and work permits required and the sometimes maddening bureaucracy that goes with the process is enough to frustrate even the most patient among us. While sometimes tempting, the issue is what happens if that frustration leads to payments being made to government officials to accelerate the process. Companies should not assume that small payments to immigration officials could be OK under the FCPA’s so-called facilitation payments exception. The government, however, has in recent years repeatedly rejected such arguments in the customs context.

While immigration-related corruption issues have not received the same level of scrutiny from the government or company compliance programs as have the bribery of customs officials, that could be about to change. There here have been three enforcement actions under the FCPA that involved improper payments related to immigration matters, all of which have been brought in the past six years. In those cases, improper payments were made to wrongfully expedite the issuance of a visa, obtain border entry for employees, obtain work-related permits or approvals, or to avoid or reduce penalties resulting from non-compliance with immigration laws. All of this suggests that corruption in the immigration context is likely to draw more attention from government authorities in the years to come.

Now is the time to review your practices related to visas and work permits for employees around the world. Prioritize your efforts here by reviewing those countries where corruption issues are most likely to arise, as well as any in which you use a third-party agent to obtain visas and work permits. Ask yourself whether you know how those visas or permits are obtained and why certain agents seem to be so good at obtaining what others cannot on a timely basis. Inform your Chief Compliance Officer or legal department of any potential red flags that you identify in the process, as even an employee’s knowledge of red flags potentially indicating that corruption by a third-party agent is likely could be sufficient to result in liability for the company.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.