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Unfounded Fraud Determination Denies Due Process, Pt. 3. By Roger Algase

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The following is the third part of my discussion of a recent USCIS Texas Service Center decision in which a previously approved I-140 petition based on EB-1 extraordinary ability as a jewelry designer was revoked with a finding of "fraud or willful misrepresentation of a material fact", even though neither the Notice of Intent to Revoke (NOIR) nor any other USCIS notice in this case had raised any question about the truthfulness or sufficiency of any of the petitioner's statements or evidence. Therefore she had no opportunity to defend herself against this extremely serious charge, which has the potential to destroy her entire career in the US.

In my last post, I also showed that one of the examples which the TSC used to support its finding of fraud or material misrepresentation was based on its totally inexplicable refusal to accept a letter from a well known US women's organization, signed by one of its managers on the organization's letterhead, confirming that the petitioner had won a certain Crafts award sponsored by that organization. The Notice of Revocation argued that the letter in question was merely a "recommendation" letter and that the petitioner had failed to submit "additional evidence" of having won the award.

But in its NOIR, the TSC had accepted that same letter as proof that the Petitioner had won the award and had not asked for additional evidence. The NOIR had sought to downplay the award because the award in question was "only for women", but it had never disputed that the petitioner had actually won the award.

To use the fact that the TSC suddenly changed its rationale for refusing to accept the award at the last moment, in a way that directly contradicted its earlier NOIR, as the basis for a finding of "fraud" or "misrepresentation" goes against any conceivable standard of due process or fundamental fairness.

In this post, I will show another example of the TSC's unfairness and disregard for the basic standards of adjudication, which was equally egregious, if not even more so, in this same case.

One of the other items of evidence that the petitioner had submitted to show that she met the EB-1 requirments was her membership in an association in her field (of jewelry design) which required outstanding achievement as a condition of membership.

The petitioner had originally submitted evidence of her membership in two professional associations. In response to an RFE issued before her petition was initially approved, she in essence abandoned her claim that one of the organizations met the above standard, because that organization did not require outstanding achievement in order to join. But there was no question raised about the fact that she had truthfully stated she was a member.

In the case of the other organization, however, she had submitted a letter from its president, on the organization's letterhead, showing that it was arguably the leading jewelry designers association in her country, that she was one if its most important members, and that at the time she was admitted to membership, the organization had required outstanding achievement as a condition of membership.

Neither the RFE issued before petition approval nor the NOIR issued after approval but prior to revocation raised any question about her membership in this organization. The only issue raised was about its membership requirements.

As mentioned in the first installment of my comments, I did not represent the petitioner at the time of her original submission three years ago or petition approval over two years ago. Therefore I had to rely on her own statement that she initially submitted proof of membership in the above two organizations. But I felt that I could do so because the Texas Service Center itself, in both the RFE and the NOIR, stated that she had submitted evidence of her membership in both organizations!

However, to make sure that the above letter from the president of the organization describing the membership requirements at the time she joined was not overlooked, I attached an additional copy of that letter with my response to the NOIR on behalf of the petitioner.

But this was not all. Three months after I submitted my response, I found out from a Congressional office which I had asked for assistance (the office of New York Senator Kirsten Gillibrand, to which I owe a great debt of gratitude), that the TSC was claiming not to be able to locate my response at all (even though I had a signed FedEx receipt for it). I then sent a duplicate of the response, including the above letter, to the TSC again.

Therefore, it was clear that the TSC had received this important letter not just once, but at least three times! Based on this letter and the TSC's own statements in the RFE and NOIR that the petitioner had submitted evidence of membership in both organizations, it is inconceivable that a competent adjudicator, acting in good faith. could have accused the petitioner of falsely claiming to be a member of these two organizations. But that is exactly what the TSC adjudicator did in the final Notice of Revocation.

The adjudicator wrote:

"Although counsel submitted a printout of the history and mission of the [name of organization omitted], the printout did not reflect the membership requirements, nor did the petitioner submit any documentary evidence supporting her claim of membership in the organization. Without documentation [sic] evidence to support the claim, the assertions of counsel will not satisfy the petitioner's burden of proof [citations omitted].

No evidence of membership in the [name of other professional organization omitted] was
submitted." (Italics added.)

But it was not only the "assertions of counsel" that were involved. The TSC itself asserted that the petitioner had submitted evidence of membership in both organizations, first in the RFE issued before the petition approval, and then again in the NOIR which sought to revoke the approval.

Not only did the adjudicator who wrote the final Notice of Revocation apparently have a problem locating an important letter by the president of one of the organizations which had been submitted to the TSC at least three times (and signed for by the TSC mailroom twice, to my personal knowledge based on FedEx receipts), but that adjudicator evidently had not even read the above two previous notices issued by the TSC itself which directly contradicted his own unsupported allegation of fraud or material misrepresentation by the petitioner in the TSC's final decision to revoke the petition.

And it was on this kind of grossly negligent handling of its own file that the TSC based this final determination of fraud or willful misrepresentation against the petitioner!

It is all too easy for USCIS to dismiss this kind of careless or incompetent decision-making by one of its adjudicators as a simple "training issue". But this overlooks the enormous, irreparable harm and prejudice to the petitioner in the meantime.

It is one thing to have any petition revoked after waiting nearly two years while expecting a green card on the basis of approval of that petition. Whether the TSC had the legal authority to revoke this petition on any grounds at all is an entirely separate issue which I have written about previously.

But a determination of fraud or willful misrepresentation is equivalent to an immigration death sentence. Except in a few limited circumstances, no waiver from this finding is available, and, absent a waiver, no other visa or immigration benefit is open to someone who has such a determination on his or her record.

Moreover, if this matter, which is now on review at the TSC pursuant to my motion to reopen and reconsider the decision on behalf of the petitioner, is sent to the AAO, it could take up to six months or a year for the AAO to review the case and withdraw the fraud or willful misrepresentation finding, as one would certainly expect it to do. What would the petitioner do in the meantime?

The adjudicator who made this unfounded fraud/misrepresentation finding, in direct conflict with previous TSC notices in the same case and without giving the petitioner a chance to respond to these grave charges, must have known that he would be doing severe and irreparable damage to the petitioner. This raises a question of possible bias, not merely lack of competence.

But merely blaming an individual USCIS adjudicator for this gross miscarriage of justice is not a sufficient answer to the question of why something like this was allowed to happen.

Ultimately, one has to look at the system which led to this total disregard of fundamental fairness and elementary due process on the part of the TSC.

Was the adjudicator under pressure from his (and I have good reason to believe, based on information from the TSC itself, that he is a man) superiors to revoke a certain number of petitions in order to meet a predetermined revocation quota?

Was meeting this presumed revocation quota so important to higher officials at the TSC that the adjudicator might have had reason to believe that he had to find some pretext, any excuse at all, to revoke the petition, no matter how little sense it made and how unfair the procedure?

Was the totally unjustified fraud or material representation finding thrown in as an afterthought at the last moment to try to make the revocation decision seem "stronger" in order to carry out the above objectives?

Of course, I have no evidence of this. But the way this case was handled does not exclude such a possibility, as an astute colleague whom I have discussed this case with has suggested.

In view of the current administration's Culture of No toward legal immigration in this age of unprecedented numbers of RFE's, petition denials, site visits, employer fines, and similar actions aimed at "protecting" America against the most capable, educated and hardworking foreign professionals, anything is possible.

As more details become available about what led to this travesty by the TSC (and appropriate action is being taken to make sure that further details will become available), I will be happy to share additional information about this case with ilw.com readers.
_____________________________
Roger Algase, a New York lawyer and graduate of Harvard College and Harvard Law School, 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 12:38 PM by ImmigrationLawBlogs

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