Apple B-1 Visa Fraud Appeal Dropped by Whistleblower (1)

A whistleblower ended his appeal in a case accusing Apple Inc. of violating the False Claims Act by bringing two Indian nationals into the U.S. on a business B-1 visa to perform a training contract.

Counsel for whistleblower Carl Krawitt and Apple filed a stipulated motion to dismiss the appeal voluntarily with the U.S. Court of Appeals for the Ninth Circuit.

Krawitt is a former independent contractor of Infosys Technologies Ltd., an Indian corporation specializing in IT training. Apple and Infosys entered into a $50,000 contract for two nationals to provide 16 live training sessions in California.

He alleged that the companies engaged in a scheme to unlawfully use B-1 visas because they didn’t have enough H-1B visas, which allow for employment in the United States for a set duration.

H-1B Alternatives

Businesses are turning to H-1B visa alternatives—including B-1 visas—as competition has increased for high-skilled guestworkers, said Stephen Yale-Loehr, a professor of immigration law practice at Cornell Law School.

“B-1 visas are a fairly nebulous visa category, and they allow short-term training as one permissible of use,” he said. For example, “one-day training on a unique piece of software would clearly be a B-1 use, but training for six months at a company where the individual is also learning things could be less clear.”

According to Yale-Loehr, there has been similar controversy over employer use of L-1 visas, which are used for individuals who are transferred within a company to the U.S. and have managerial roles or specialized knowledge.

“The definition of special knowledge can be nebulous and companies have been accused of abusing this visa category where the worker should be on an H-1B visa,” he said.

‘Ambiguity’ in Use

A district court rejected the claims in March because Krawitt couldn’t show that Apple intended to commit fraud.

He didn’t show that Apple improperly relied on B-1 visas to bring the trainers into the country instead of the more expensive and numerically capped H-1B visas, nor did he show that Apple willfully ignored immigration rules, the court said.

There is “ambiguity in the allowable uses of B-1 visas arising out of differences in interpretation of relevant immigration laws and regulations,” the court said.

Wilmer Cutler Pickering Hale and Dorr LLP represented Apple. Morgan, Lewis, & Bockius LLP represented Infosys. Pierce Bainbridge Beck Price & Hecht LLP represented Krawitt.

The case is Krawitt v. Infosys Techs. Ltd., 9th Cir., No. 19-15718, stipulated motion to dismiss appeal voluntarily 7/18/19.