In United States v. Patnaik, --- F.4th ---, No. 23-10043 (9th Cir. 2025), the Court reversed the district court’s judgment dismissing an indictment charging the defendants with submitting fraudulent H-1B visa applications, and remanded for reinstatement of the criminal charges.
Before the district court, Defendants asserted that these allegedly false statements could not be materially false statements because it was unlawful for the government to ask for such information under ITServe All., Inc. v. Cissna, 443 F. Supp. 3d 14 (D.D.C. 2020). The district court accepted Defendants’ argument and granted their motion to dismiss the indictment.
Yet, 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. See United States v. Kapp, 302 U.S. 214, 218 (1937). 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. We thus reverse.This case turns on the element of materiality. A visa-application statement is material if it “could have affected or influenced the government’s decision to grant th[e] petition[].” United States v. Matsumaru, 244 F.3d 1092, 1101 (9th Cir. 2001). Materiality is assessed “at the time the alleged false statement was made” and “[l]ater proof that a truthful statement would not have helped the decision-making body does not render the false [statement] immaterial.” United States v. McKenna, 327 F.3d 830, 839 (9th Cir. 2003) (simplified).The indictment sufficiently alleges a material misrepresentation. By law, H-1B petitioners must “establish that the H-1B beneficiary employees would fill specific, bona fide positions that were available at the time [the petitioner] filed the petitions, and that there was, or would be, a legitimate employer-employee relationship between [the petitioner] and the H-1B beneficiaries.” See Prasad, 18 F.4th at 316. Accurate information on where and for whom the H-1B beneficiaries will work could affect or influence the decision to grant the H-1B visa petition. See Matsumaru, 244 F.3d at 1101. Thus, a jury could find Defendants’ alleged false statements material.The principle that the government may punish untruthful responses to unlawful questions as fraud goes back to the Supreme Court’s 1937 Kapp decision. Since then, the Court’s cases “have consistently—indeed without exception—allowed sanctions for false statements or perjury; they have done so even in instances where the perjurer complained that the Government exceeded its constitutional powers in making the inquiry.”
