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< Back to current issue of Immigration Daily

Citations for ILW.COM's Seminar
Consular Processing For Experts
Session 1 held on May 31st

For more info, or to signup online, click here.
For more info, or to signup by fax, click here.

From Noah Klug

The Assumption of Fraud in Business Immigration and Consular Proceedings ] Who's at Risk?

  • The Fraud Protection Unit (FPU) at the Kentucky Consular Center (KCC) is becoming increasingly active and vigilant in providing Consular Officers with information regarding its findings in relation to petition investigations. Unfortunately, we (the attorneys) do not have access to this information which is being provided to Consular Officers. This puts us in a gblind leading the blindh position to a certain extent in preparing our clientfs assignees for their visa interviews because we really do not know what information from the FPU the Consular Officer is viewing on his/her computer screen during the interview. However, the best we can do is encourage our clients to engage in self]audits, etc., as discussed below in Point 3, as well as ensure that the applicant is fully aware of all the information that was submitted with his/her petition to USCIS and also provide the applicant with a comprehensive preinterview briefing to confirm his/her knowledge of the petition, run some practice questions with them, explain that the only opportunity to defend the client/applicant against any potentially adverse FPU findings will be at the visa interview, etc. It is also important to explain to the client and the applicant that it is in their best interest to be completely upfront and open with us as their attorney (i.e., not hide anything from us) to enable us to provide them with the best quality representation.

The Shared Risks of Clients and Attorneys Dealing with USCIS/ICE/USDOL/USDOS.

  • We need to remember our ethical obligations as attorneys as well as reputational risks. Reputational risks become especially pronounced when dealing with Consular Posts, given their typically small size (when compared to the size of USCIS) and even more so when you deal with a certain Consular Post on a regular basis. The Consular Officers may rotate every three or four years, but the local staff sometimes remain for 30 years or more.

The Federal Task Force Approach to Compliance and the Importance of Self]Audits, Pro]active Petition Amendments, and Internally]Consistent Records and Statements.

  • As mentioned above, in addition to a comprehensive preinterview briefing, the following are excellent ways to protect your client (and yourself) against gattackh by the FPU: self]audits, proactive petition amendments, and being careful to ensure that all information provided to USCIS in the petition, as well as to the Consular Post via the DS]160, attorney cover letter, and verbal statements by the applicant at the visa interview, is 100% consistent.
The Road to Revocation: The escalating process of FDNS]DS investigation (RFEs and site audits), Service Center I]129 denials, referrals for ICE Investigation, that lead to DOS Consular Investigation, Visa Revocation Requests of petitions previously approved for Company Executives, and potential federal prosecution.

  • Unfortunately, Consular Posts tend not to provide much, if any, notice before returning a petition to USCIS for revocation. This means that attorneys need to be very proactive and vigilant with the Post when it appears that issues have arisen at the visa interview. If you are able to discern that the Post is considering returning the petition to USCIS, then you can try to convince the Post not to do so. Otherwise, it will of course be months and months until you receive a response from USCIS (negative or positive).


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