Lawsuit Used to Remove Mistaken Fraud Finding03 Mar 2016
The Murthy Law Firm is pleased to report that we resolved an incorrect fraud finding that had kept an H1B worker from returning to the United States for two years. The issue came to light when this individual went to Canada to renew his H1B visa stamp, but was told by the consular officer that he was permanently inadmissible because the consulate’s records indicated that he had committed some form of immigration fraud. No further details were provided. He was certain that this was an error, as he had never lied or attempted to deceive any immigration officials, but was unable to get any additional information or figure out how to fix the problem. He finally turned to the Murthy Law Firm for help with resolving the matter.
Murthy Discovers Fraud Finding Made by USCIS
The Murthy Law Firm contacted the consulate and learned that the consular officer had not made the fraud finding. Rather, the officer was relying on information contained in the Consular Lookout and Support System (CLASS). It appeared that the fraud finding was made by someone at the U.S. Citizenship and Immigration Services (USCIS) before the worker had left for Canada to apply for the new visa.
Source of Fraud Finding Related to I-140 NOID
We asked our client to speak with his employer and see if the company could shed any light on the fraud finding. It turned out that the USCIS had recently issued a notice of intent to deny (NOID) on the I-140 that had been filed for this individual. The NOID questioned an experience letter submitted in support of the case. Yet, the I-140 had been approved after the employer responded to the NOID. Thus, it was only logical to conclude that this matter had been resolved to the satisfaction of the USCIS.
Normally, if the USCIS has evidence of a possible fraudulent statement or document, this allegation would be made in a formal request or notice. With limited exceptions, the USCIS is required to provide this written notice and an opportunity to respond to the allegation. The USCIS did not provide any such notice with regard to the experience letter submitted or the supporting information and documentation sent in the NOID response.
USCIS Refuses to Take Corrective Actions, So Murthy Files Lawsuit
The Murthy Law Firm utilized various channels to request that the USCIS remove the fraud hit, or, at the very least, to provide specific details regarding why the fraud finding was made. Representatives from the USCIS indicated that the question of the fraud finding was being investigated. As time went by, however, both our client and we grew impatient with the delays. After months of effort, the source of the finding was narrowed to a specific USCIS service center. Nevertheless, the USCIS was unwilling to provide any specific details or alter the decision. Given that the USCIS refused to cooperate in resolving this matter through traditional means, our legal team determined that the best option available was to file a lawsuit against the government under the Administrative Procedures Act (APA).
Immigrants’ Concerns Over Suing a Government Agency
Many people, particularly immigrants, are reluctant to file lawsuits against a government agency. A common reason for this is a fear of reprisal by the U.S. government. We have certainly had clients ask us questions like, “Don’t we risk angering the USCIS? Might an immigration official try to come after me in some other way to teach me a lesson?”
While such concerns are understandable, the truth is that government agencies like the USCIS are well accustomed to being sued by stakeholders. In the United States, it is almost routine to use the courts to address a delay or dispute with a government entity. Using this legal tool is sometimes the only way to get the attention of a government official willing to take the time to resolve a difficult problem with an immigration case. Risk assessment is always a part of immigration strategy decisions, and areas of vulnerability are considered before each step. However, we have successfully utilized the option of filing lawsuits on behalf of clients for many years, without experiencing inappropriate retribution by the government against a client.
Lawsuit Results in Successful Negotiations with USCIS
For the individual in this particular case, it was clear that the USCIS was not going to correct his records on its own. He accepted our recommendation to file suit against the government, which resulted in the USCIS agreeing to enter into negotiations with the Murthy Law Firm to find a satisfactory resolution for our client. Ultimately, the negotiations were successful, the fraud hit was removed, and our client was finally able to return to his family in the United States.
This case highlights how difficult it can be to challenge fraud findings and how damaging government errors can be to people’s lives. It also demonstrates that, as a last resort, the filing of a federal lawsuit against a federal agency can serve to remedy such mistakes.
The Murthy Law Firm never reveals details of any case handled by our firm, nor the identity of any client, without first obtaining his/her express consent. We appreciate the generosity of our client in allowing us to use this case as an example to our readers. Please note that all cases are different. Even with cases that appear to be similar, past success does not guarantee a favorable result.
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