Two South Bay executives who temporarily escaped prosecution over alleged H-1B visa fraud are back in the hot seat again, after an appeals court reversed a lower-court ruling that tossed out their indictment.
The criminal charges against Namrata Patnaik of Saratoga and Kartiki Parekh of Santa Clara must be reinstated, a three-judge panel in the U.S. Court of Appeals for the Ninth Circuit ruled Tuesday.
The pair were charged in 2022 with allegedly submitting, from 2011 through April 2017, fraudulent applications for the H-1B, a highly sought-after visa in Silicon Valley, intended for workers with specialized skills. Patnaik also was accused of money laundering purported fraud proceeds.
Federal prosecutors claimed the two falsely stated in 85 visa applications that prospective H-1B holders would work on-site on internal projects at their San Jose computer chip business, PerfectVIPs. Patnaik and Parekh instead contracted the workers out to client companies, prosecutors alleged.
In 2023, a judge in San Jose U.S. District Court threw out the charges, pointing to a 2020 ruling in another district court that said the visa-issuing agency, U.S. Citizenship and Immigration Services (USCIS), cannot ask in H-1B applications for details about projects a visa holder would work on.
The federal government appealed shortly afterward.
On Tuesday, the Ninth Circuit appeals court judges ruled that their district court colleague erred in relying on the 2020 court order. Writing the decision for the trio, Ninth Circuit Judge Patrick Bumatay cited a 1937 U.S. Supreme Court ruling that revolved around lies to the government by hog sellers seeking federal agricultural benefits.
“Under longstanding principles, the government may protect itself against ‘those who would swindle it’ even if the government demanded answers to questions it had no right asking,” Bumatay wrote in the Tuesday decision. “So lying on H-1B visa applications 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 USCIS at the time they were made.”
Bumatay noted that prosecutors alleged PerfectVIPs clients paid at least $6.9 million to cover the visa workers’ wages and salaries, and create profit for the company.
Lawyers for Patnaik and Parekh did not immediately respond to questions about the ruling and whether they planned to appeal.
The H-1B has in recent weeks gained prominence amid heated arguments among supporters of President-elect Donald Trump about its effects on job opportunities for U.S. workers.
Silicon Valley’s technology giants use the visa to secure some of the world’s top talent, but many also employ lower-skilled, lower-paid H-1B workers via staffing companies, which obtain the lion’s share of the visas.
Each year, 85,000 new H-1B visas are issued by lottery, up from the original 65,000 when the visa was launched in 1990 but down from a high of 195,000 in the early 2000s.
Last year, Google received approval for some 5,300 new and continuing H-1Bs, according to federal government data. Meta received nearly 5,000 approvals, Apple close to 4,000, Intel about 2,500 and Oracle more than 2,000. Seattle’s Amazon topped the list, with more than 11,000. Several prominent staffing companies received 7,000 to more than 8,000 H-1B approvals each.
In December, Trump-supporting Florida conspiracy theorist Laura Loomer ignited a firestorm over the H-1B when she attacked employment of Indian tech workers in the U.S. The spats that ensued exposed rifts in Trump’s Make America Great Again movement.
Bay Area venture capitalist and Trump tech adviser David Sacks, along with Trump “government efficiency” adviser Elon Musk, plus Trump himself all made statements supporting the visa. Trump in the past had criticized the H-1B and sought to reform it, and his first administration dramatically boosted denial rates. Musk’s support of the H-1B drew a threat to “rip your face off” from former Trump adviser Steve Bannon. Musk subsequently said the visa needs reform, and Sacks urged unity and argued against expanding the H-1B program.