By: Bruce E. Buchanan, Sebelist Buchanan Law

U.S. District Judge for the District of New Jersey, Peter Sheridan, ruled a lawsuit filed against Cognizant by Jean-Claude Franchetti, a former assistant vice president of the Teaneck, for defrauding the H-1B visa program will not be dismissed.

Franchetti filed the lawsuit under the False Claims Act (FCA) alleging Cognizant, an IT giant, had been bringing workers to the United States using B-1 or L-1 visas, instead of using the more expensive H-1B work permits. Cognizant argued that the FCA did not apply to records and statements made under the U.S. Internal Revenue Code.

The Judge ruled:
The internal email correspondence submitted by Franchitti is plausibly sufficient to allege that Cognizant committed this violation knowingly. Finally, Cognizant’s false statements are material because if it accurately represented the nature of its employees’ work, its visa applications would likely have been rejected or its employees’ visas revoked, consistent with USCIS policy and practice.
In sum, because Franchitti's claims concern a violation of the immigration – not tax – laws, and because the secretary of labor – not the IRS – is the authority tasked with enforcing the prevailing wage provision, the tax bar does not apply here.
If you want to know more information on issues related to employer immigration compliance, I recommend you read The I-9 and E-Verify Handbook, a book I co-authored with Greg Siskind, and available at http://www.amazon.com/dp/0997083379.