Court Endorses And Rejects False Claims Act Claims Related To Visas

• Published date: 26 August 2021
• Subject Matter: Immigration, Work Visas
• Law Firm: WilmerHale
• Author: Mr Stephen Jonas and Benjamin Conery

In a case that has implications for companies that utilize US work and business visas, the US District Court for the District of New Jersey recently ruled on two theories under the False Claims Act (FCA) related to the use of such visas. The court's rejection of one of the theories marks the first time a court has ruled on a direct FCA claim alleging misrepresentations in connection with visa applications.

The case, Jean-Claude Franchitti v. Cognizant Technology Solutions Corporation et al., involved allegations that Cognizant, a technology services provider that utilizes three primary visa types'B-1, H-1B, and L-1'for its foreign employees to travel to the United States, violated the FCA by submitting false documents in support of visa applications. The plaintiff in the case, a former assistant vice president for Cognizant, alleged in a qui tam complaint that the company routinely filed applications for H-1B visas for highly skilled workers that included falsified job descriptions and invitation letters so that the company could have a group of 'travel ready' workers who could immediately enter the United States on H-1B visas when actual needs arose. The plaintiff further alleged that the company submitted fraudulent invitation letters attesting to the managerial responsibilities or special skills required for L-1 visa holders and used employees with L-1 visas or B-1 visas, which are for short-term business trips, to perform work that should legally have been performed by H-1B visa holders. The federal government elected not to intervene in the case.

The allegations in the case implicated both a direct FCA theory and a reverse FCA theory. A direct false claims act theory, which is codified in 31 U.S.C. ' 3729(a)(1)(A) and (B), involves the knowing submission of 'a false or fraudulent claim for payment or approval.' The plaintiff's direct false claims argument was that Cognizant included false documentation or representations in visa applications. Under the FCA, a 'claim' is defined as a request for either government money or property. According to the court, the plaintiff's direct FCA theory required B-1, H-1B, and L-1 visas to be considered 'property' to meet the law's definition.

The court rejected the direct FCA theory, ruling in an order on a motion to dismiss that visas do not qualify as 'property' for purposes of the FCA. In analogies with cases in which courts found that video poker and fishing licenses do not qualify as property, the court...