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Unfounded Fraud Finding Without Notice Denies Due Process Rights. By Roger Algase

Rating: 2 votes, 5.00 average.

In what I consider to be one of the most egregious examples of abuse by a USCIS Service Center which I have ever encountered in siome 35 years of practicing immigration law, the Texas Service Center recently issued a totally unsupported "fraud" determination against a petitioner who was given no opportunity to respond to this charge.

In doing so, the TSC also made transparently inaccurate allegations about evidence in the record which directly conflicted with its own previous notices to the petitioner, who is now in the process of pursuing appropriate remedies against what appears to be a serious denial of her most basic rights to due process and fundamental fairness.

This is not the first time that I have written about this case, but it is the first time that there has been even the slightest hint that the TSC would, without the slightest justification, seek to raise alleged "fraud" by the petitioner as an issue, let alone make such a determination in its final Notice of Revocation without giving the petitioner a chance to respond to this serious but utterly unsubstantiated charge, which has the potential to destroy her entire future in the US.

By way of background, this case involves an attempt by the TSC, on its own initiative, to revoke a previous approval for the petitioner's I-140 petition on her own behalf for EB-1 classification as an immigrant of extraordinary ability based on her achievements as a jewelry designer.

In previous posts, I described how, after approving the petition (in 2012, on the basis of a record consisting of more than 200 pages of evidence, and after an answer was submitted to a detailed RFE) the TSC, more than a year and a half later, issued a Notice of Intent to Revoke the Petition (NOIR). See my posts Texas Service Center's Vendetta Against The Best And Brightest (January 19, 2014) and Is USCIS Unfair to Women Seeking Extraordinary Ability Green Cards? (December 27, 2013).

(I did not represent the petitioner in her initial filing or her answer to the RFE. I came into this case only after the NOIR was issued.)

Neither the RFE which the petitioner answered before the petition was approved, nor the NOIR issued after approval, raised any question about the accuracy of the statements that she had made in support of the petition or the genuineness of the evidence she submitted in support of her claims.

Nor did the NOIR allege that there were any new facts that had come to the attention of the Service which would cast doubt on her credibility or her eligibility for the benefit she was seeking.

The only issue raised in the NOIR was whether, on the basis of the evidence she had submitted, she had met the admittedly high legal standards for EB-1 extraordinary ability classification. In effect, the NOIR implied that the petition had been approved in error, through the TSC's initial misunderstanding of the applicable law.

This is not to say that the NOIR was free from factual mistakes. But this was due to TSC error, not error by the petitioner! For example, the NOIR alleged that every design competition in which the petitioner had received some kind of recognition (either as an award winner or a finalist) had been open only to women.

This was true in some cases, but not in all. The record showed clearly that at least two of the competitions, arguably among the most important ones, were also open to men.

This was an important issue, because as I argued in my response to the RFE (and in my December27, 2013 ilw.com post} the NOIR writer did not seem to have a very high regard for awards issued by women's organizations.

In summary, in the entire history of this long and complex case, prior to the Notice of Revocation, there had not been the slightest suggestion or allegation by the TSC that the petitioner had made any factual misrepresentation or statement that was not true, or that she had made any claim without submitting evidence to support it.

But for the first time, in its final Notice of Revocation of the petition, the TSC made an express determination that the petitioner had committed "fraud or willful misrepresentation of a material fact". As mentioned above, the petitioner had no opportunity to answer this extremely serious charge.

Even in the final decision, the TSC did not specify exactly what the alleged "fraud" or "misrepresentation" consisted of, leaving it to the petitioner to guess by implication!

However, even assuming that certain statements that the final decision made about alleged lack of evidence or insufficiency of evidence to support the petitioner's factual claims were the reasons for the fraud or material misrepresentation determination, these supposed reasons were so absurd that, if the potential consequences for her future were not so serious, the TSC's explanations for its "fraud" and "misrepresentation" determinations by the petitioner would border on the comic.

To be continued in Part 2.
_____________________________
Roger Algase is a New York lawyer and graduate of Harvard College and Harvard Law School. He has been practicing business and family immigration law in New York City for more than 30 years. His email address is algaselex@gmail.com







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Updated 06-10-2014 at 12:54 PM by ImmigrationLawBlogs

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