How to recognize potential traps in ordinary immigration matters. A presentation before American Immigration Lawyers Association, Washington, DC.

1. Presentation
Before Members of American Immigration Lawyers
Association, Washington, DC

2. The G-Man Cometh
Dealing with investigations and extraordinary
consequences in ordinary audits, RFE’s and
processing
firm@immigration.com
Presented By: Rajiv S. Khanna
October, 2013

3. The coverage of this
discussion
• Broad overview of agency investigations, audits, RFE’s and other
types of processing mostly in the benefits context
• Developing sensitivity to when a proceeding already has or is about to
step into an area beyond normal -- “Normal” is denial of the petition
• Remind us all about the highly technical and often counter-intuitive
nature of immigration law – criminalization of civil conduct
• Sporadic repetition to illustrate different issues arising from the same
facts
• No discussion of I-9 investigations - that is a topic by itself.
• Please join in with your own questions, comments and war stories
that we should all hear

4. Why must you know?
• “Normal” benefits applications and proceedings
(e.g. a visa or AOS interview of an employee or a
family-based beneficiary) form the bases for a
large number of audits and investigations.

5. Non-ordinary consequences
1. Clients can face expensive and protracted investigations. Many investigations can go on for years
2. Clients can lose their business (federal contractors especially vulnerable, see FAR; debarment for any
employer)
3. Client can be criminally prosecuted (Statutes of limitations in crimes)
4. Agency can invoke administrative “mistrust” and revisit all benefits already granted – reopening all H/L and
green cards. Discuss example: I-140 NOIR two to three times in every case, denial of successor-in-interest
claims even after two buy-outs and piercing the corporate veil.
5. Legal malpractice concerns if we incorrectly approach or advise our clients. The good news and the bad:
standard of care, but have to defend lawsuit.
6. Government has a long memory – e.g., denial of naturalization 8 years after alleged fraud.
7. Concerns in Mergers and Acquisitions for preexisting liability, e.g. DOJ imports principles from Title VII; e.g.
Contingent funds in escrow helped in 20 NOIR on I-140
8. Concerns in us taking over representation. Make sure our retainers pin point the extent of our engagement.
e.g., we seek waiver of prior issues when taking on a case or a client mid-stream

6. Practice Pointers
Summary
1. Prepare every filing and RFE response with investigation in mind
2. Prepare the record for litigation (civil). Example: physician who sent
letter for B-2 stay extension
3. Give reasons for withdrawal when withdrawing cases
4. Instruct clients how to deal with “visitors.” Public rights to the PDF.
5. If forewarned, get criminal defense counsel involved early
6. Have conclusion of representation letters sent at the end of every
case
7. Be nice to the investigators, but not too nice

7. General rules for all audits
and investigations
1. Who is auditing/investigating?
2. How to distinguish between a routine and non-routine proceeding? (Assume all investigations are non-
routine until proven otherwise. e.g. Case of FBI members in an I-9 audit team).
3. Non-routine consequences of routine investigations. Interagency cooperation.
4. Have litigators’ knowledge, but do NOT have the litigator’s attitude. Investigators are fact-finders, judges
and/or path to “execution” rolled into one. E.g. WHD investigations and the big problems inherent in
appeal.
5. The procedures evolve continually and can vary from region to region
6. Know when and how far to cooperate; cooperation can reduce penalties
7. Know when not to cooperate; noncooperation can prevent unnecessary exposure
8. Know when to seek criminal defense. e.g. an ordinary investigation was in fact a combined task force of
USCIS, ICE and FBI.
9. Whistleblower protections

8. What happens and how? -
case examples (Slide 1)
Examples that seem innocuous but have long term
consequences:
 H-1/L-1:
• lack of end-client;
• “in-house” projects;
• unsigned end-client letters; “defective” letters (end-client
signing form letter, counsel preparing letters for end
clients); employer’s liability for fraudulent
degrees/experience letters provided by employees;
employee’s liability for fraud by employer

9. Examples (Slide 2)
 Green Cards/PERM:
• taking prohibited payments from employee
(PERM, Liquidated damages);
• failing to disclose relationship with employee; Liability
flowing from signing ETA 9089
• supervised recruitments

10. Examples (Slide 3)
 Visa stamping
• employee denied without explanation;
• corporate fraud in end-client letter –
consequences appearing 8 years later in
naturalization of corporate officers/stockholders;
• KCC site visits (remember consular discretion)

11. Examples (Slide 4)
 ICE/USCIS - school investigations
• Representing school or students (Conspiracy
allegations)
• Status/unlawful presence
• CPT in the first semester

12. Examples (Slide 5)
• Family-based
• AOS after B/ESTA entry
• non-disclosure of religious marriages in K-1
application (Anand Marriage Act)
• proxy marriages

13. Conclusion: be alert for
consequences
 Conclusion: we must be alert to matters that
might be considered by govt. to be fraud or
persistent, bad business practices

14. Other bases of
audits/investigations.
• Complaints from employees (discuss DOL/WHD)
• inter-agency cooperation
• publically available information: e.g., Employers’
web sites, Forums discussion – case of the FBI
subpoena; Social media – titles from Facebook
and Linkedin

15. Department of Labor
• Usually routine audits
• They do give notice
• Caution: Practices may differ from region to region
• DANGER: non-routine procedures, e.g., asking for
all emails; e.g. interviewing employees and asking
their job description and “leveling”

16. USCIS/ICE
• USCIS typical issues (routine)
• ICE, except for I-9, non-routine
• Caution: Practices may differ from
region to region

17. DOS
• Almost always non-routine

18. DOJ
• Employment related
• Typical issues (Routine) – discrimination in
recruitment and in documentation

19. FBI
• Almost never routine
• FBI can:
• Seal records
• Seize computers
• Seize bank accounts
• Seize assets
• Business continuity plans; limits of warrants
• Miranda rights are not necessary if no simultaneous arrest
• FBI “informal” requests, examples: seeking identity of poster on
forums; seeking identities and addresses of H-1 workers who have
resigned
• Practices differ from region to region

20. Inter-agency task forces
• Continually in flux – agreements are
formed, modified
• IG investigations are for systemic abuse

21. If time permits
• Fraud/Misrep.: Defined, consequences –
civil/criminal, particularity, right to review adverse
evidence, FOIA, lawsuits, consular definition, consular
discretion and challenge – visa office, courts.
• Implications of Matter of Lozada
• Law firms refusing to share information
• Dual representation
• Acting as expert witness or witness in issues from our own
filings is generally a really bad idea because of:
credibility, conflict of interest with clients, dual representation
conflicts, being a fact witness.

22. Thank you
firm@immigration.com
Presented By: Rajiv S. Khanna
October, 2013