Fraud/Misrepresentation

Description

A document or a statement intended to materially mislead.

Impact of I-140 Revocation

Immigration Law

Substantial transcription for video

Impact of I-140 Revocation

13 July 2012

9.05 Mins

I have been meaning to share with you a few things about what we are noticing in the last few months, a whole flurry of I-140 denials, intents to revoke.  It appears that USCIS has gone back and revisited even approved I-140’s.  What happens is, in these cases, an employee who has nothing to do with an employer’s wrongdoing, if there is any wrongdoing in fact, gets stuck.

 

We represented a company—we’ve done this for three or four companies, but one company in particular comes to mind--they bought out another company—I think 100 or so employees--and I was actually involved in the merger and acquisition, and I suggested that they should escrow some money just to make sure that, if something goes wrong with the immigration compliance, we would have attorneys' fees to fight the problem.  And it did work out because, in fact, there was a problem.  What happened was the guy who sold the company had some issues—apparently, he had several companies—and he had some issues that were not brought to light until this company that hired us started filing their cases.  When they started filing I-140’s, USCIS came up with fraud allegations against the guy who sold the company.  What happens in these cases is that the employees could lose the right to AC21 if the revocation is for fraud.  They could lose their priority date if the revocation is for fraud.  And they could lose their right to extend their H-1’s if the revocation is for fraud. So the employee is the one who gets hurt the most.  When we got retained--there were about 20-25 cases--we went in and argued it out with the government and, happily, all cases were approved.  Each set of circumstances is unique.  Sometimes we can get approvals and sometimes we cannot get approvals.  This narrative doesn’t mean we’re always going to get approvals.  I just want to talk to you guys and explain to you that this is happening.  Don’t think that just because you have an I-140 approval, you’re good.

 

This morning, as I was going over the content on immigration.com, I noticed a comment on our forums.  This person said this:

 

180 days on EAD will get over next week and I plan to go on AC21.  Sponsoring employer is being inquired into for some fraud.  No one knows exactly what’s going on.  He’s going over to a new company. 

 

These are his four questions.  I think it’s relevant to the whole community.  That’s why I’m recording this.

Will this fraud affect my I-485 application?  Will I get an RFE?

 

First of all, no one can predict whether or not you will get an RFE.  Whether the fraud will affect your I-485 depends on whether or not the I-140 is considered to be fraudulent.  The biggest problem in these cases is because the I-140 is the employer’s application.  The employee does not get a notice, so before you know it, you get a Notice of Revocation of I-485 because, without your knowledge as an employee, the I-140 has been revoked.  This is very unfortunate.  It’s a good idea for those of you who are moving or who want better information or handle on your I-140 to stay in touch with your lawyers.  Make sure they know where you are and make sure they send a copy of the I-140 RFE. In Virginia, I am required by law to allow equal access to both the employer and the employee.  So, if there is an RFE, by ethical obligation, I am required to give a copy to the employee as well.  I am not sure if the Bar would frown upon redacting certain portions that might be very specific to the employer’s tax history, etc.  But normally, we need to give you enough information so that you can protect yourself, so that should be the ethical obligation for all lawyers.  Therefore, you should be able to get some information if there is an I-140 revocation notice or intent to revoke issued by USCIS.  The problem is, if the I-140 gets revoked for fraud, everything goes away--your right to carry forward your priority date, your right to get an  H-1 extension,  your right to do an AC21 successfully--all of that goes away.  However, if the employer is willing to appeal, then while the appeal is pending, you can go ahead and keep getting your H-1 extensions.

Does it matter where you are shifting using AC21?

 

 

If this is a question related to geographical location, it does not.

Does a full time contracting offer matter?

You should not have a 1099.  You should be on a W2.

Of course, there is a language in the Yates Memorandum of May 2005, which is the only definitive memo on AC21, which talks about doing an AC21 transfer over to a company you yourself own, but there’s a whole slew of issues connected with that.  Actually, I think I have a lot of information on my blogs on this.

 

Does a big or a small company matter?

 

In my view, it does not matter.  Not for AC21 purposes.

 

I want to add that there was a case recently from a federal court—I have the name of the case in my records-- where the court was quite offended by USCIS coming back after several years and revoking an I-140 that had already been approved.  I think there are some really tricky legal problems with USCIS revoking cases that have long been settled.  Be that as it may, all I can do is sensitize you to the issues and concerns. 

 

Feel free to bring up whatever you have in our next free community conference call.  Information about our free community conference calls is on the immigration.com website.

 

Good talking with all of you.  Good luck.

Fraud Allegations Under Immigration law

Citizenship and Naturalization

Nonimmigrant Visas

Immigration Law

Substantial transcription for video

Fraud Allegations in Immigration Law

 

Recorded on 12th July 2012.

 

I wanted to talk to you folks today about an issue that has become problematic in the last four or five years - fraud or misrepresentation.  Very often, I see that the government very casually throws in an implication that you have committed a misrepresentation. Actually, they will come out and say that we find misrepresentation.  You will think that this is a normal, ordinary thing, and you might ignore it.  I have seen people get into so much trouble with that fraud or misrepresentation finding.  Let me talk to you about what can happen with that.

 

First of all, a fraud or misrepresentation finding can lead to criminal prosecution.  You can be prosecuted criminally, if the government so chooses.  I have seen companies being prosecuted for amazingly trivial things. I have seen government start with a 43 count indictment of a company and then walk away with “Failure to report change of address” or something so trivial that it makes you wonder why did the government spends three, four, or five million dollars on  the  prosecution of these kind of cases.  We have provided advice and help to various defense teams all over the country in criminal defense of these kind of cases.  My bottom line approach in these cases is, you’ve got to be extremely careful the moment you see any implication or finding of fraud or misrepresentation.  Speak with counsel or speak with somebody who knows all sides of this picture.  Unfortunately what happens is, if you are only concerned with benefits like an H-1 or an F-1 or an L-1, you probably won’t pay too much attention to ancillary findings other than the fact it has been denied.

 

Let us talk about what can happen if there is a fraud or misrepresentation finding a little bit more in detail.  The worst thing that can happen is a criminal prosecution. You can go to prison over this, make no mistake, if there is in fact a finding that was not rebutted and then there was a subsequent investigation and more evidence was collected.  I will give you this--criminal prosecution and conviction are not as easy as just throwing out a finding and it is surprising how easily USCIS and other agencies toss around that finding, “Oh, this is misrepresentation.”  The moment I see that word, I know it is a buzzword for us to go all out for this issue and make sure that the government has it on the record what our side of story is.

 

So, criminal prosecution is not easy but it can happen.  Be careful.  Deportation, removal, exclusion.  What does that mean?  If  you are in USA  on a visa, F-1 , B-1 , H-1 , L-1  any visa, and they find that there is some fraud or misrepresentation in your past or present, the government can initiate deportation, more accurately, removal from USA, and  you can then  be barred from coming back to USA for up to permanently .  And I am saying that again so that you folks understand. Any attempt to procure a visa or immigration benefit, note that “attempt.”  You do not have to have been successful.  Even in an attempt could lead to a permanent bar from entering USA.

 

 As I recall, there is only one waiver available based upon a family member--immediate family member-- who is a US citizen or permanent resident, but then you have to convince the USCIS that you should be given that waiver and there is extreme and exceptional hardship on your relative.  I recall that is the waiver that is available for these things .Third thing that can happen is denial of sought benefit now or in the future.  So think about this very carefully.  You applied for an H-1. For some reason, they said, “Oh, your degrees are fraudulent,” and I have seen these kind of cases .They thought that the degrees were fraudulent merely because there was no confirmation of certain kinds of things.  For example, you just gave your transcripts.  You did not give your final diploma, and USCIS, after doing some cursory checks, decided that you had not been able to prove your case.  Instead of merely saying that you have not been able to prove your case, they will throw in something very casually saying, “Oh, this is misrepresentation.”

 

Next thing is, you get stuck when you apply for an H-1 again.  They will pull up the record, and they will say you have a misrepresentation and we cannot give you the benefit.  So, in the future, this can come back and haunt you.  Next thing that can happen is, if there is any misrepresentation finding, let’s say you applied for an H1 transfer and they found fraud they can revoke whatever they have given you.  Now remember that when I say that they find fraud, they do not even, this is very sad, but they will just throw in the finding without considering, and I have seen too many cases like this.  It is awful for the government, and I do not think government. Let me rephrase that. I do not think any government officer individually is IQ challenged, but I think, as an organization, the moment we get into a bureaucracy, we are dealing with very unintelligent bureaucracy.  Without considering the consequences of what they are doing, they will throw in a finding of misrepresentation. So your benefits can be revoked, and as I said earlier, you can get a permanent bar from entering USA.

 

So the next question is “When does this come up?” Normally, when a fraud or a misrepresentation finding is made, typically, where do they make this finding, they can do it at the consulate during visa application.  I talked with some individuals yesterday, such an easy case and because of a misunderstanding, it’s become a complete problem.  What was the case? Boy and girl meet, they get married. According to South Indian ceremonies, I do not want to say the exact state, but South Indian ceremonies, and the marriage occurs in a temple.  According to the law of the state where the marriage was entered into, until the marriage is registered, it is not valid.  However, when the lady goes for a K-1 interview (K-1 is for fiancées; if you are married you cannot get a K-1), the consul officer grilled her quite thoroughly and decided that she was lying and that she was already married.  Next thing, they put a permanent bar on her.  Now she is under permanent bar. The husband is scrounging around, trying to get some way of getting her back in.  Of course, she will make it back in this particular circumstance, because there is a bunch of factors that go in her favor, but this is a tough case.  And normally, US citizen spouses, actually, unless there is a unique case, I usually tell people do not even hire a lawyer.  Is this is ethically okay?  I think it is. In my judgment, certain cases don’t need a lawyer.  Typically, spouse of a US citizen is such a plain and easy case.  But look at this example and how badly this got messed up.  So now, during a visa application, you’ve got a bar.

 

What other circumstances?  Remember the Tri Valley University?   A lot of you might remember that.  There were some misrepresentation implications for certain groups of people, not everybody.  They had a lot of problems getting visa stamping again from the consulate.  Second place where it can happen is at the airport.  When you land at the airport, the CBP (Custom and Border Protection) can haul you up there.  I have seen cases where somebody said, “Oh, I am coming in for a visit” and the CBP officer went through the luggage of the individual, and they found letters showing that they were meeting up with some potential employers or they were applying to schools.  Immediately, there is a fraud implication and the next thing is two things can happen.  If they want to be kind, they will let you withdraw your application  for admission and tell you to take the next flight back home without  coming into USA .If they want to throw the book at you, they can ... actually there is a third possibility.  Second is if they levy an exclusion on you, which basically means, we are formally denying you entry into the United States.  Now you are barred for five years from coming back.  But to throw the book at you, they would deny your entry based upon misrepresentation.  Now you have a permanent bar.  So these are not simple matters, ladies and gentlemen.  They can be quite complex.  Please make sure you have competent help if you see any implications or fraud or any chance of fraud in your application.

 

 Then the next thing is you can have a fraud or misrepresentation come up during benefits application.  In H-1, hiring without a project, the government now considers that to be a fraud.   I do not know how at what point of time hiring somebody without a project became a matter of a fraud.  I still think the jurisprudence-- the law in this area--is very poorly developed and poorly managed.  But who wants to take a chance for the   criminal court? Who wants to go in and spend 800,000 dollars, a million dollars, defending yourself if the government wants to take the stand that this is fraud? So do not hire somebody without a project, employers.  That is now considered to be a fraud.  I have seen indictments that said that specifically.

 

Inaccurate Job duties.  An H-1 employee is supposed to be a System Administrator, but they are working as a Software Engineer, developing but not doing any administration.  That can be a problem.  Why?  It can be a problem in depressing wages.  System Administrators are typically, though it could be other way around, paid differently that a Software Engineer.  Actually, if you hire somebody at a lower wage and make do to a higher paid job, that is a problem obviously.  I have seen failure to post LCAs at client sites.  If you have employees working at end client sites, I have seen the government try to make a fraud case out of that, because, partly, I think it is justified.  There is something that we have to look at very carefully, because they can say, “Look when you signed the LCA.  You made a representation to the government, ‘ I have posted this application at the end client site.’” That gets quite complicated. So this was H-1.  There are many examples  I could sit here and talk about for hours.  But I just want to give you kind of a flavor of when these things happen and crop up.

 

Green cards.  I remember a very weird case where, when filing the green card application (the perm application), the employer, who is a fairly good-sized company, signed the application without reading it through.  The 9089 was prepared by lawyers and it was not mentioned that the employee is related to the company president. It was his brother. The next thing is, USCIS denied the I-140, and, on top of that, they said this is misrepresentation, and we are also revoking the labor certification.  When I gave a consultation on the case, I immediately moved in and took certain steps, and I will get to that when I come to the next topic, which is what should you do.  But the point is, government’s contention was that in looking at the ETA 9089 perm application, it says, “I have read this application.”  It specifically says that.  So if you are signing that as an employer or even an employee, you better read and make sure all the material information in there is correct.  I have seen this issue come up a lot during Adjustment of Status.  Where do they come up the most?  Well, mostly lately, it has come up when government says, “Look, you are on H1 and you are authorized to work for an area in California, but you worked in Chicago.”  Here is the employee who is stuck with the fact that they cannot do anything about where the LCA was filed by the employer, but now they have got a fraud implication on their record.  Well, we deal with it, we make matters clear.  We explain the law to the government. But it is still quite hasslesome and bothersome to be in that situation.  Anyhow, go ahead and be careful and watch those whenever you see fraud or misrepresentation come up, just make sure it has been taken care of and properly addressed.

 

When else during Adjustment of Status?  G-325-A.  When you file the G-325-A, which is the biographical statement, government can take--I have a case actually, in which the employee neglected to mention two or three jobs that they had done illegally.  It was definitely an oversight, no question about that, because he disclosed other things.  And if he were going to try to deceive the government, he would have done a lot more than merely omit those two jobs.  So that became a big problem.  They are trying to bar him permanently.  We have a MTR (Motion to Rehear) pending against that.  During naturalization, there is an interesting case--interesting for me, but sad for the people who are involved.  A gentleman ran a company—again, a relatively good-sized company--and somewhere about six or seven years ago, they had submitted a letter from an end client in support of an H1, which the government considered to be fraudulent.  They said they could not verify the letter, and they made, I do not remember if they made an express finding a fraud.  But they did say that they were not able to verify, so there is doubt as to the veracity of the document.  Doubt as to the veracity.  Okay, that does not alert you.   You do not think, “Well, they are not saying they find fraud, but that is what they are saying.  Okay, six or seven years later, they have a lot of approvals for their H-1  after that green card with no problem.  Employees have been doing fine, and the issue never came up.  This gentleman applies for naturalization.  Guess what?  Barred from naturalization.  The government may go after his green card.  Why?  There is a fraud. So this issue comes up in naturalization.

 

It can come up in courts.  Sometimes you are there for unrelated proceedings, for example divorce.  Next thing is, there is a misrepresentation element or an element of fraud that you have not considered, and you are stuck.  The worst case that I have seen come up , which was very unfair and sad is, when an employee on H1 fell out of status for a month or so.  Under the law, if you are out of status for even one day, by operation of law, your visa is considered to be cancelled.  So the Visa stamp that you have on your passport is cancelled.  Very few people know this law.  Of course, as they say, ignorance of law is no excuse but when the law is so complex and so difficult to keep track of, who can know when something has been voided or made invalid by operation of law? Nobody can keep track of that.  It is something that happens quietly, perniciously in the background.  So, when this gentleman applied for Adjustment of Status, his 485, government said, “Your last entry into USA was fraudulent  because you used the VISA that was void by operation of law.”  I do not think he is going to have much trouble ultimately, but he is definitely being dragged around for misrepresentation.  See, I do not mean to imply that the government is always unreasonable, but they can be.  Individual officers can be sometimes be very unreasonable and overzealous in what they feel is the right application of the law. 

 

What should you do?  Look at the left hand side of the screen.  Clarify the record even if you lose the case. You want to make sure your story, your side of the story, is on the record.  I do not care if you lose the case.  So what did we do in that? Remember I talked about the president who signed the 9089 not realizing that he had signed saying that they were not related to each other, the beneficiary and he were brothers.  So what we did was, we immediately filed an appeal, and the appeal got dismissed, but we told our entire story.  We explained what happened.  We went through the entire document trail.  We submitted documents and I think even though the company may not realize it, by doing that, they have now put their own story on the record.  So tomorrow, if this issue ever comes up, whoever at USCIS is reviewing his case, they can see both sides of the picture before they deny any future benefits like naturalization.  Now we have both sides of the stories there. Appeal it, file a motion to reopen, even file a lawsuit.  All of these things you can do.

 

And what else can you do? If nothing else, send out a letter.  Make it clear what the record was.  I believe that should at least provide you a modicum of good defense .Good luck, folks, and it is good talking with you.  I think I want to do a video next time about these I-140 revocations. I am seeing I-140 revocations coming up after 8-10 years of having been approved.  Highly unfair.  Let me get into that next time.  Good talking with you.

Social networking sites being used to trace fraud

USCIS and allied agencies responsible for immigration are using information on social networking sites (such as Facebook) to track the activities and postings made by immigration benefits applicants/beneficiaries for evidence of fraudulent activity. While, on principle I agree with deterring fraud, but the "big brother" stance of USCIS is deplorable. Beware folks - big brother is watching. Something you post even in jest may not be that funny in the hands of a govt. officer whose career is dedicated to finding fraud.

Implications of visa fraud by an employer on H-1B, L-1, green card, citizenship

Question details

I am exploring my options to file a new H1B and would be great if you could provide any suggestions or insights on my current situation.

My details are -

1) I have my I140 approved in 2013 with an Employer (XXX IT Services Inc) and had multiple successful H1B extensions until 2017.

2) My latest.H1B had an I-94 expiry date of May 30, 2017. The extension was timely filed on May 16, 2017.

3) The work location changed in October 2017 and an Amendment was filed when my above H1B extension petition was still pending.

4) Amendment Petition was upgraded to premium service in December 2017.

5) I continued to work for it until September 2019 as no decision was made by USCIS on my amended petition.

6) I exited the USA in October 2019 to join my wife and kids who were stuck in India for all these years.

7) In the middle of the year 2020, administrative processing was lifted on my petition and an RFE was issued. However, as I was already out of the USA, no response was given.

At this point, I came to know that my Employer (XXX IT Services Inc) got into a visa fraud and money laundering case and served a jail sentence as well by 2020. Employees weren't made aware of it at all. Probably that's the reason for not hearing this long.

My questions are-

(A) Will USCIS consider my stay between May 2017 and October 2019 as unauthorized, will there be a 10-year bar on me?

(B) Can I apply for a waiver of inadmissibility on the grounds of an administrative processing hold on my last petition and I left before the decision was taken?

(C) Will my employer's visa fraud case impact my H1B approval in the future?

Video URL
FAQ Transcript

Visa fraud by an employer typically doesn't affect individuals if they aren't involved. As long as you were not complicit, your stay shouldn't be considered unauthorized, and there's no 10-year bar. Future H-1B approvals might have delays, but if you weren't implicated, there should be minimal impact on your immigration status.

What are the consequences of H-1B or green card fraud or misinterpretation? How does it affect my departure, assets and financial matters?

Question details

If I am convicted of H1B/Green Card fraud or misrepresentation, resulting in a permanent entry ban, the following inquiries arise:

How soon must I depart from the US?

What will happen to my assets, such as my house and bank account funds? Will they be subject to seizure?

Can I sell my house and withdraw the money before leaving the US?

 

Video URL
FAQ Transcript

If you are convicted, which implies involvement in a criminal case, you will be unable to leave the U.S. without serving your sentence. If you receive a jail term of six months, one year, or five years (or any other duration), you must complete that period before departing. The timeline for your departure depends on the current status of your case. It is not advisable to stay in the U.S. illegally, considering that you are already facing the worst outcome—a permanent ban from entering the U.S. Overstaying by an additional six or eight months would result in an additional bar of three to five years on top of the existing permanent ban of three to ten years. As for your assets, unless there is some form of asset forfeiture, you can take your money and sell your house before leaving.

H-1B or green card misrepresentation: Legal options and consequences for fighting back against USCIS

Question details

1. Have you taken cases of H1B or GC fraud or misrepresentation?

2. What are the consequences if caught - Just losing status and deportation? Can it lead to Jail in any case?

3. Can we fight back in court to justify our case and win against USCIS?

 

Video URL
FAQ Transcript

Yes, our firm has taken cases involving H-1B or green card fraud or misrepresentation for about 30 years. Our focus is on employment and business-based immigration and related cases. Our firm has also assisted criminal defense teams in similar cases. If caught in a fraud or misrepresentation, the government can choose to prosecute you criminally since most immigration papers are filed under penalty of perjury. This can result in imprisonment for up to five years, as felonies are serious crimes. From an immigration perspective, a misrepresentation or fraud can lead to a permanent bar from entering the United States, causing you to lose your stay and potentially be unable to return. However, if you did not intentionally lie or the misrepresentation was immaterial, you can fight back in court by asserting defenses such as lack of intent or immateriality. For example, if a minor detail unrelated to the visa decision is misrepresented, it may not be considered material. These are some of the grounds to consider when fighting against misrepresentation. If you don't have any valid arguments, it may not be worthwhile to fight your case.

Can too many parking tickets affect Green Card or Citizenship process?

Question details

If someone gets around 50 parking tickets in a year, how would it affect visa / GC / citizenship?

Video URL
FAQ Transcript

I think it has no effect. Parking tickets are simply non-moving violations.Either you parked in the wrong place or the meter ran out after you parked.However, there are two components to moving violations. There is recklessness which can become criminal and that could become a major issue by itself or many speeding tickets that are not criminal could lead to a conclusion that you are not a person of good moral character.

Deportation when a permanent resident is involved in Shoplifting

Question details

My uncle has been a US Permanent Resident since Apr 2021, and recently he got into trouble with Shoplifting Theft (Misdemeanor B). The prosecutor is ready to lower the punishment to Misdemeanor class C theft along with 6 months of unsupervised deferred probation (fine of 99$) with NO CONVICTION. Also, after 2 years, he will have the option for the case to be expunged from the records.

Question: Will this create a legal problem with his current immigration status (LPR), and also, will he face issues after 4-5 years when he is ready to apply for his US citizenship considering the case has been expunged from the records?
 

Video URL
FAQ Transcript

These cases do not worry me much as it looks like a  minor offense. Although I recommend you speak with a lawyer who practices deportation defense in the state in which the crime occurred. They would know the local criminal statutes. Also remember expungement has no meaning under immigration law. Even if your record gets expunged and if there is ever a question as to your arrest you have to say yes, because the expungement under immigration law has no meaning.
 

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Note: Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments, blog and community calls on immigration.com. Where transcribed from audio/video, a verbatim transcript is provided. Therefore, it may not conform to the written grammatical or syntactical form.

Impact of criminal misdemeanor case on an F-1 or any status

Question details

I am on an F-1 visa and when I was working in a gas station I was caught for illegal distribution of cigarettes to underage. They issued a notice to attend the court. And my charge is 2927.02(B)(1) M4 under Ohio state law. I went to court, in front of a judge I plead guilty to the issue. I paid the fine on that day only. Later on, the case was shown on my SSN. Here are my questions,

1. Will it affect my OPT EAD card? Because I am going to apply in May.
2. Can I go and return from my home country?
3. In the future, do I need to face any issues regarding immigration?
4. Do I need to contact an attorney regarding this case? About any documentation.
 

Video URL
FAQ Transcript

Talk to an immigration lawyer who does deportation work. I do not think there will be an issue, but get it confirmed. The second thing is to talk to your DSO. Disclose what happened and make sure that the continuity of two full semesters is maintained. Personally, I think you have a problem because of violation of status.

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Note: Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments, blog and community calls on immigration.com. Where transcribed from audio/video, a verbatim transcript is provided. Therefore, it may not conform to the written grammatical or syntactical form.