Summary
The Ninth Circuit reversed the district court's dismissal of an indictment charging defendants with submitting fraudulent H-1B visa applications. The panel held that misrepresentations regarding where foreign workers would be employed remain materially false for visa fraud purposes, even if the government's request for such details was arguably beyond its statutory authority. Citing longstanding Supreme Court precedent, the court ruled that defendants cannot evade criminal liability for fraud by arguing that the underlying government inquiry was unlawful. The case was remanded for reinstatement of the criminal charges.
Topics
Practice areas
Questions Presented
- Whether false statements on H‑1B visa petitions are material for visa‑fraud liability when the government cannot lawfully ask for the information asserted.
- Whether the district court erred in dismissing the indictment based on ITServe and the USCIS rescission memorandum.
Holdings
- Lying on H‑1B visa applications remains visa fraud even when the false statements are responses to questions the government cannot legally ask, so long as the misrepresentations could have influenced USCIS at the time they were made.
- The district court erred; the indictment sufficiently alleged material false statements, and the case is reversed and remanded for reinstatement of the criminal charges.
Key quotations
“Lying on H‑1B visa applications therefore remains visa fraud even when the lies were given in response to questions the government can’t legally ask—as long as the misrepresentations could have influenced the U.S. Citizenship and Immigration Services at the time they were made.” (at 3)
“The principle that the government may punish untruthful responses to unlawful questions as fraud goes back to the Supreme Court’s 1937 Kapp decision.” (at 10)
Factual background
Defendants Namrata Patnaik and Kartiki Parekh, as CEO and HR manager of PerfectVIPs, Inc., submitted 85 H‑1B visa petitions that falsely stated the foreign workers would work on internal projects at PerfectVIP's office, when in fact the workers were contracted to off‑site clients. The government charged them with conspiracy to commit visa fraud, three counts of visa fraud, aiding and abetting, and one count of money laundering.
Procedural history
The district court granted the defendants' motion to dismiss, relying on ITServe All., Inc. v. Cissna and a USCIS rescission memorandum that allegedly barred USCIS from asking detailed project information. The government appealed the dismissal.
Remand instructions
Remand for reinstatement of the criminal charges.