Ancient Qui Tam Legal Approach Used to Enforce the Immigration Law

By David North on September 10, 2021

The U.S. Civil War-era legal tool known as "qui tam" is dusted off now and then to help enforce the immigration law, and was employed again last month against an up-to-date high-tech company, Cognizant.

During our Civil War, there was a substantial amount of cheating conducted by those selling stuff to the Union army; qui tam was created (through the False Claims Act of 1863, though in England it dates back to the Middle Ages) to give financial rewards to those tipsters suing on behalf of the government. If the tipsters won in federal courts, they would get a share of the government’s savings vis-a-vis the war profiteers.

As Wikipedia explains, “a writ of qui tam is a writ through which private individuals who assist a prosecution can receive for themselves all or part of the damages or financial penalties recovered by the government as a result of the prosecution. Its name is an abbreviation of the Latin phrase qui tam pro domino rege quam pro se ipso in hac parte sequitur, meaning ‘[he] who sues in this matter for the king as well as for himself.’”

How do you use a 19th century legal device to cope with 21st century immigration infractions?

The answer is that the tipster (and his or her lawyers) must argue that the violation of the law caused the government to lose money, in the instant case, because the high-tech giant, a huge user of the H-1B program, had allegedly hired other alien workers using B-1 (tourist) or L-1 (international executive) visas, which are bargains, instead of the pricier H-1B visas, which should have been employed instead.

The tipster in this case, Jean Claude Franchitti, also argued, according to Law360's report, that: “the company cheated the government out of all the payroll tax revenue it was due since allegedly it didn’t pay the visa workers prevailing wages.”

There is something wrong with that last sentence. Cognizant could have not paid any payroll taxes at all, whatever the wage level; that’s one possibility in which case the prevailing wage does not figure into the equation. Or the firm could have paid below the prevailing wage, and thus short-changed the government on the amount of payroll taxes. In the latter instance it would have paid some payroll taxes, but would not have avoided “all” of them.

The presiding federal district court judge, Peter G. Sheridan, rejected Cognizant’s attempt to dismiss the case, saying that the firm had “an obligation to pay the appropriate fee for the privileges associated with the desired visa”. The case is not over, but will now proceed because of the judge’s ruling.

We have noted several previous cases along these lines, often brought by a small D.C. firm, Kotchen and Low, all dealing with using cheap visas instead of more expensive H-1B ones.

My question is: Why not use this same tool against a much larger problem, one that loses the U.S. much more money: the non-payment of any kind of payroll taxes by some users of illegal aliens? (Some employers of illegal aliens do pay the appropriate payroll taxes.)

One answer may well be related to the difficulty of proof. If there is a B-1 or L-1 worker on the payroll, when the alien should have an H-1B visa, that is easy to document; the needed kind of proof must be harder to obtain with the non-payment of Social Security and other taxes for illegal alien workers.

It would, of course, be helpful if other law firms followed Kotchen and Low’s example.

Topics: Visa Fraud