Few if any determinations by USCIS officers have more serious consequences than a finding that a petitioner or applicant for an immigration benefit has committed fraud or willfully misrepresented a material fact. Fraud or willful misrepresentation can be the immigration equivalent of a death sentence, except in the very limited circumstances where a waiver may be available based on extreme hardship to a USC or LPR spouse or parent of the person against whom a fraud/willful misrepresentation finding has been made.

In my June 6, 8, and 10 posts, I discussed in some detail how a Texas Service Center adjudicator recently made a fraud or willful misrepresentation determination against one of my clients without giving her any prior notice of intent to make such a finding or opportunity to reply to the fraud charge, and by dismissing or inaccurately denying the existence of evidence of her veracity and truthfulness with regard to the facts at issue which was in the record and which the TSC had accepted as valid in at least two previous notices to the petitioner, neither of which made the slightest mention of any alleged fraud or willful misrepresentation.

The following AAO decision will illustrate the type of notice and opportunity to reply which USCIS is required to give a petitioner or applicant before making a fraud finding. (I have no connection or involvement whatsoever with the following case.)

In LIN 07 145 52475 (January 28, 2010), a case which originated with the USCIS Nebraska Service Center, an employer filed an I-140 petition on behalf of the beneficiary as an accountant after first obtaining an employment third preference (EB-3) labor certification. The labor certification and I-140 petition required at least a bachelor degree in accounting.

The AAO found that the beneficiary had misrepresented and had used false documents in claiming that he had the degree.

The AAO's finding was based on a statement that the beneficiary had previously made to an ICE officer admitting that he had used his brother's degree, altered to show the beneficiary's name, and that the beneficiary had only attended the school in question for one or two weeks, without ever graduating.

Despite this clear evidence of fraud, the AAO was scrupulously careful in give all parties full and adequate notice of the fraud charge and the opportunity to rebut it. According to the above decision, the Nebraska Service Center had not denied the petition on the basis of fraud, but only for failure to meet the educational requirements.

Therefore the fraud issue was raised for the first time by the AAO itself. First, the AAO reopened the NSC's denial decision on the AAO's own motion and issued a Notice of Intent to Deny (NOID) alleging fraud.

The AAO then issued a second notice, of derogatory information (NDI) to both the petitioner and the beneficiary separately. The NDI described the beneficiary's above ICE interview in detail. Therefore both were given a full opportunity to rebut the fraud charge.

They did not do so, and obviously, based on the beneficiary's previous admission to ICE that he had used a fraudulently altered degree certificate, neither was in a position to do so. But the important point is that even in an egregious case such as this one, where the beneficiary had clearly committed fraud and had no defense to this charge, and the employer withdrew the petition for this reason, they were both given every possible opportunity to rebut or dispute the fraud charge before the AAO entered its determination.

Because of the seriousness and severe immigration (not to mention possible criminal) consequences of a USCIS fraud finding, the above high standard should be held to in every DHS and USCIS proceeding where fraud or willful misrepresentation is alleged.

Does a person against whom USCIS makes a fraud finding without giving prior notice of the fraud charge or an opportunity to reply have a remedy against USCIS or its officers for official misconduct or denial of basic civil rights?

This question will be explored in an upcoming post.
Roger Algase is a New York lawyer and a graduate of Harvard College and Harvard Law School. He has been practicing business and family immigration law for more than 30 years.

His practice includes, in addition to other types of immigration cases, H-1B and O-1 work visas, and green cards based on labor certification and extraordinary ability as well as opposite or same sex marriages. His email address is algaselex@gmail.com