Citations for ILW.COM's Seminar
Consular Processing For Experts
Session 1 held on May 31st
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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
blindh position to a certain extent in preparing our clientfs 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 gattackh 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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