Two South Bay executives who temporarily avoided prosecution for alleged H-1B visa fraud are back in the recent seat after an appeals court overturned a lower court ruling that dismissed their charges.
Criminal charges against Namrata Patnaik of Saratoga and Kartiki Parekh of Santa Clara should be reinstated, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit ruled Tuesday.
The two were accused in 2022 of submitting fraudulent applications for the H-1B, a highly wanted visa in Silicon Valley for staff with special skills, from 2011 to April 2017. Patnaik was also charged with money laundering and alleged fraudulent proceeds.
Federal prosecutors alleged that the 2 falsely stated in 85 visa applications that potential H-1B holders would work locally on internal projects at their San Jose computer chip company PerfectVIPs. Patnaik and Parekh as an alternative subcontracted the employees to client firms, prosecutors alleged.
In 2023, a judge in U.S. District Court in San Jose dismissed the fees, citing a 2020 ruling from one other district court that the visa-issuing agency, U.S. Citizenship and Immigration Services (USCIS), didn’t accept H-1B applications may provide details of projects a visa holder can be working on.
The federal government lodged an appeal shortly afterwards.
On Tuesday, Ninth Circuit Court of Appeals judges ruled that their district court counterpart erred in counting on the court's 2020 order. Ninth Circuit Judge Patrick Bumatay wrote the choice for the trio, citing a 1937 U.S. Supreme Court ruling involving lies to the federal government by hog sellers in search of federal advantages for agriculture.
“Based on longstanding principles, the government can protect itself from 'those who would defraud it,' even as the government demands answers to questions it is not authorized to ask,” Bumatay wrote in Tuesday's decision. “So lying on H-1B visa applications remains visa fraud, even if the lies were made in response to questions the government is not legally allowed to ask – as long as the false information could have influenced USCIS at the time it was made.”
Bumatay noted that prosecutors alleged that PerfectVIPs' customers paid at the least $6.9 million to cover Visa employees' wages and generate profits for the corporate.
Lawyers for Patnaik and Parekh didn’t immediately reply to questions on the decision and whether or not they planned to appeal.
The H-1B has gained traction in recent weeks amid heated arguments amongst supporters of President-elect Donald Trump over its impact on job opportunities for U.S. staff.
Silicon Valley's tech giants use the visa to draw a few of the world's best talent, but many also employ lower-skilled, lower-paid H-1B staff through staffing firms that receive the lion's share of visas.
Each 12 months, 85,000 latest H-1B visas are issued via lottery, up from the unique 65,000 when the visa was introduced in 1990, but down from the height of 195,000 within the early 2000s.
According to the federal government, Google received approval for about 5,300 latest and existing H-1B devices last 12 months. Meta received nearly 5,000 approvals, Apple nearly 4,000, Intel about 2,500, and Oracle greater than 2,000. Seattle-based Amazon topped the list with greater than 11,000. Several well-known staffing firms received 7,000 to greater than 8,000 H-1B approvals each.
In December, Trump-supporting Florida conspiracy theorist Laura Loomer sparked a firestorm over the H-1B when she attacked the employment of Indian tech staff within the US. The clashes that followed revealed cracks in Trump's “Make America Great Again” movement.
Bay Area enterprise capitalist and Trump technology adviser David Sacks, in addition to Trump's “government efficiency” adviser Elon Musk and Trump himself all made statements supporting the visa. Trump had criticized the H-1B prior to now and tried to reform it, and his first administration dramatically increased denial rates. Musk's support of the H-1B prompted a threat from former Trump adviser Steve Bannon to “rip your face off.” Musk then said visa reforms needed to be reformed, and Sacks pushed for unity and opposed expanding the H-1B program.
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