The fact that Devyani Khobragade's husband is an US citizen of Indian descent has complicated the issue even further, limiting her options considerably
Given the furore and diplomatic row the case has caused in India, Preet Bharara made an unusual move to issue a lengthy statement in which he defended the arrest and charges against Devyani Khobragade.
Making it clear that visa fraud charges against Devyani Khobragade will not be dropped, US sources here said, "The strength of the fraud in the case is very strong."
"The case will be there against her, it will not be dropped. The charges will remain," the sources said, adding that if the 39-year-old diplomat gets full diplomatic immunity, she can travel outside the country.
However, if she were to return to the US later on a visit and if she then does not have the immunity, she could face arrest on the charges against her and be prosecuted.
On the allegation made by Devyani Khobragade's lawyer that the USD 4,500 amount written in the visa application was Devyani Khobragade's salary and not the amount promised to be paid to the domestic worker Sangeeta Richard, sources have said that Khobragade did not understand the form correctly.
"No federal agent goofed up in reading the form," sources said, rubbishing allegations made by Devyani Khobragade's lawyer Dan Arshack.
"It is clear that the salary details required on the visa application form are that of the employee and not the employer," they said.
There is no question of apology to India over the arrest of Khobragade, the then Deputy Consul General of India, in New York on December 12 which has led to strong protests by the Indian government and widespread indignation in India.
Khobragade was later released on a USD 250,000 bond after pleading not guilty in court.
The Indian government has demanded withdrawal of the case and an apology for the treatment meted out to the diplomat.
Sources also added that Devyani Khobragade's domestic help Sangeeta's family was evacuated to the US because the Justice Department was compelled to make sure that victims, witnesses and their families were safe and secure while cases were pending. If Devyani Khobragade had immunity in the case, what was the need to transfer her from the Indian Consulate to the Indian mission to the UN, the sources contended.
India has also informed the US that Devyani Khobragade was accredited to the UN as a member of the country's delegation to the General Assembly before her arrest in a visa fraud case.
Since the diplomat was part of the Indian delegation to the UN beginning September and enjoyed full diplomatic immunity, her arrest would be considered a violation of the Vienna Convention.
The US has made it clear that it is proceeding with the prosecution of Devyani Khobragade.
US sources here said today that more evidence was being gathered against the diplomat before the charge sheet is filed by the January 13 deadline.
They said US laws were being followed in the case and everything has been "done by the book."
The authorities are "doing their job, everything has been done by the book," sources said, adding that there was no nefarious motive behind bringing the case.
Sources have stressed that it is better that the case is resolved since even if Devyani Khobragade avoids prosecution due to her immunity status, the case will always be there against her in the US federal court. However, Devyani Khobragade would not be considered a fugitive who can be arrested in another country.
Following her arrest, India has withdrawn extra privileges enjoyed by American Ambassador Nancy Powell and other diplomats such as special access at Indian airports.
India also initiated a slew of other measures like stopping import clearances for the US embassy and asked all US Consulate personnel and their families to turn in their ID cards.
Meanwhile, the sources in the US said Devyani Khobragade's lawyer can certainly ask the court to dismiss the case but that request can be challenged by the prosecutors.
Amid all the furore created by the case, the fact that Khobragade misrepresented and made false statements to the US authorities is being lost, they said.
The complaint against Khobragade alleges that after an employment contract was submitted to the US State Department, Devyani Khobragade told her domestic worker Sangeeta that she needed to sign another employment contract, which provided that her maximum salary per month including overtime allowance will not exceed 30,000 rupees per month.
The second employment contract does not contain any provision about the normal number of working hours per week or month.
Sources have questioned as to why a second employment contract was signed between Devyani Khobragade and Sangeeta Richard when the first employment contract was submitted to the US authorities that said the diplomat would pay her maid the prevailing or minimum wage, whichever is greater, resulting in an hourly salary of USD 9.75.
"Why was there a contract about the Rs 30000 salary, (this implies) that Khobragade intended to pay Richard less" than the hourly salary of USD 9.75.
"People are talking about everything other than the crux of the case" which is that Khobragade caused a materially false and fraudulent document to be presented, and materially false and fraudulent statements to be made, to the US State Department in support of Sangeeta's visa application.
In the second contract, Devyani Khobragade "omits" many of the things that were agreed upon in the first contract, including the 9.75 dollar per hour rate that was decided upon.
"The maid was paid about 1-2 dollars an hour. That is the fraud," sources have said adding that changing the first contract and creating a false contract, shows disrespect for US laws.
Sources also added that it is regretful that the case has taken such a turn as it could have been handled in a better way.
On whether Devyani Khobragade could have been summoned instead of being arrested to answer the charges against her, sources said that she could have claimed immunity or made attempts to flee.
Attorney Preet Bharara has maintained that Devyani Khobragade was charged based on conduct and as is alleged in the complaint she clearly tried to evade US law designed to protect from exploitation the domestic employees of diplomats and consular officers.
"Not only did she try to evade the law, but as further alleged, she caused the victim and her spouse to attest to false documents and be a part of her scheme to lie to US government officials," he had said.
"So it is alleged not merely that she sought to evade the law, but that she affirmatively created false documents and went ahead with lying to the US government about what she was doing," he added.
Sangeeta had made a complaint and went to an NGO, which then brought the case to the attention of the Justice Department and the State Department.
Sources pointed out that the State Department built the case, investigated it, collected evidence in the case and made the determination about the immunity of the diplomat and not the Manhattan US Attorney's office.
The salary paid to the domestic worker excludes medical and health and lodging benefits. It is also required by the State Department that all amount should be paid directly to the domestic worker in a bank account in the US. It is also required that all records be kept of the payment made to the domestic worker.
The sources further stressed that there was no cavity search conducted on Khobragade.
They added that the US Marshall service determines that every single person has to be strip-searched and the Manhattan Attorney's office does not determine that a person will be subjected to strip search. "It happens to everybody, no matter who you are. It is not pre-meditated," sources said adding that Khobragade was treated with courtesy as she was being arrested.
Sources have maintained that she was not handcuffed. The cell in the courthouse where she was kept "for a short period" of time is very "clean" and she was handled in a very professional environment.
Sources said that the people working on the ground in federal agencies like the US Marshall service were simply following the rules when Khobragade was strip-searched, a requirement that every defendant has to go through irrespective of whether they are diplomats.