PresentationBefore Members of American Immigration

Lawyers Association, Washington, DC

The G-Man Cometh

Dealing with investigations and extraordinary consequences in ordinary audits, RFE’s and processing

firm@immigration.comPresented By: Rajiv S. Khanna

October, 2013

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

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.

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-1408. 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

Practice Pointers Summary

1. Prepare every filing and RFE response with investigation in mind2. Prepare the record for litigation (civil). Example: physician who

sent letter for B-2 stay extension3. Give reasons for withdrawal when withdrawing cases4. Instruct clients how to deal with “visitors.” Public rights to the

PDF.5. If forewarned, get criminal defense counsel involved early6. Have conclusion of representation letters sent at the end of

every case7. Be nice to the investigators, but not too nice

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 region6. Know when and how far to cooperate; cooperation can reduce penalties7. Know when not to cooperate; noncooperation can prevent unnecessary exposure8. 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

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

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

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)

Examples (Slide 4) ICE/USCIS - school investigations• Representing school or students (Conspiracy

allegations)• Status/unlawful presence• CPT in the first semester

Examples (Slide 5)• Family-based• AOS after B/ESTA entry• non-disclosure of religious marriages in K-1

application (Anand Marriage Act)• proxy marriages

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

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

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”

USCIS/ICE

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

region to region

DOS

• Almost always non-routine

DOJ

• Employment related• Typical issues (Routine) – discrimination in

recruitment and in documentation

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

Inter-agency task forces

• Continually in flux – agreements are formed, modified

• IG investigations are for systemic abuse

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.

Thank you

firm@immigration.comPresented By: Rajiv S. Khanna

October, 2013