Labor & Employment Law Daily Wrap Up, WHISTLEBLOWERS—D.C. Cir.: Alleged visa fraud whistleblower revives retaliation claim in FCA suit, (Aug 11, 2025)

By Jason Albright, J.D.

He alleged that a Mumbai-based IT and consulting company fraudulently obtained L-1 and B-1 visas for IT employees who should have been sponsored under the H-1B visa program.

A former employee of Tata Consultancy Services, fired after he reported that the company allegedly engaged in visa fraud to avoid higher application fees and payroll taxes, stated a retaliation claim under the False Claims Act but not an FCA reverse false claim. The plaintiff did not sufficiently plead the company’s alleged failure to adhere to an obligation to pay higher payroll taxes for certain H-1B employees. However, the former employee—who submitted a 57-page whistleblower report to the company’s CEO and VP of HR, sent additional follow-up reports, and later met with and provided evidence to an independent investigator—sufficiently pleaded that he engaged in protected conduct about which the company was aware and that it retaliated against him. Judge Katsas concurred in part and dissented in part (U.S. ex rel. Kini v. Tata Consultancy Services, Ltd., No. 24-7032 (D.C. Cir. Aug. 8, 2025)).

IT and consulting company. Tata Consultancy Services (TCS), which hired the plaintiff in 2006, is “an Indian multinational corporation that provides information technology and consulting [outsource staffing] services” to a world-wide client base. Though its headquarters are in Mumbai, India, TCS operates 22 offices in the United States, which are staffed by approximately 40,000 employees.

Visas for U.S. work. The former employee claims that, when companies award contracts for services to TCS in the United States, TCS typically fills positions with foreign workers “because it can pay these employees a fraction of what American [IT] workers demand to perform the same or similar work” and “earn[s] a substantial profit while undercutting its competition by offering lower prices to clients.” For these workers to work in the United States, however, they must possess a government work visa, and to that end, TCS “applies for and secures three types of visas for its foreign workforce: H-1B, L-1, and B-1.”

According to the former employee, H-1B visas are for “specialty occupations that require theoretical or technical expertise” and cost $6,460 to secure. He identified the two types of L-1 visas—L-1A for management-level supervisory employees and L-1B for organizational subject matter experts—and stated that both require an application fee of $5,460. Finally, the former employee explained that B-1 visas are for temporary activities and are generally inappropriate for any TCS job but are the cheapest to procure at $160.

Western Union contract. According to the former employee, after TCS finalized a five-year contract with Western Union in November 2012, TCS assigned him to serve as the onsite service delivery manager for the Western Union account, prompting his relocation to Denver, Colorado. In 2014, his responsibilities allegedly expanded to include reviewing the petitions for extensions to the L-1A visas held by his team members.

Issue raised. In that capacity, he alleged, “he noticed a number of discrepancies in his team members’ roles and reporting structure, which . . . did not match the actual role or reporting hierarchy for L-1A employees on the Western Union client account.” When he raised the issue, a TCS client partner purportedly advised that the plaintiff should not get involved.

Business Relationship Manager. Then, sometime between September 2016 and January 2017,

TCS made the plaintiff the “Business Relationship Manager for Western Union.” “In this role, . . . [he] managed the business development of the client by identifying and implementing IT-related services to meet Western Union’s needs.” Despite the promotion, he allegedly remained responsible for reviewing L-1A visa materials for TCS employees, and in that capacity, he said, he observed TCS’s ongoing use of fraudulent visa practices, including the requirement that he “fabricate employee roles and reporting structures” to align with “the information contained in the employees’ L-1A visa petitions.”

Whistleblower reports. On May 1, 2017, the employee submitted a “whistleblower report” to both the CEO and VP of human resources of TCS, detailing what he described as “fraudulent visa practices and other illegal, corrupt, and unethical conduct he had observed while working on the Western Union client account.” Then, on June 22, 2017, he submitted a “follow-up report” “detailing additional visa abuses and illegal practices within the Western Union client account since the time of his initial May 1, 2017 report.”

Communications with investigator and qui tam action. On June 27, 2017, TCS informed him that it had hired an independent investigator to “look into the issues raised in . . . [his] whistleblower reports.” During the remaining months of 2017, the employee exchanged communications and information with the independent investigator regarding the alleged visa fraud. He also filed a qui tam action under seal in the district court on November 22, 2017, alleging that TCS violated the FCA and retaliated against him for engaging in activity protected by the statute.

Follow-up whistleblower complaint. On January 2, 2018, the employee submitted a “follow-up whistleblower complaint” to the independent investigator, reiterating “his concerns regarding ongoing visa fraud and the discrimination/hostility he had experienced within the Western Union account and by [TCS] after raising his concerns.”

Alleged pattern of retaliation. Following that submission, the employee alleged, TCS immediately began imposing “unrealistic performance goals” on him. Approximately two weeks later, on January 18,

2018, he submitted an additional “follow-up whistleblower complaint” to TCS regarding the purported L-1A visa fraud. The next day, TCS allegedly removed him from the Western Union account and told him “that if he did not find a new project role within two weeks, he would be terminated.”

VP’s communication and discharge. On May 30, 2018, TCS’s VP of HR informed him about the results of the independent investigator’s investigation, stating that “‘most of the issues raised by [[the employee] we]re not substantiated’ and that for the issues for which the company did find a violation, ‘the Company ha[d] already taken corrective action.’”

TCS fired the employee on August 9, 2018, citing a “lack of matching roles for [his] skillset.”

Government declines intervention. Nearly 57 months after he filed his qui tam complaint, the government filed a notice of election to decline intervention in the suit on August 24, 2022, pursuant to 31 U.S.C. § 3730(b)(4)(B). The district court then unsealed the complaint, and on October 14, 2022, the former employee amended the complaint to enrich his allegations. TCS then moved to dismiss the claims in the first amended complaint.

Dismissal and appeal. The district court granted TCS’s motion to dismiss the reverse false claim, holding that the former employee failed to state a claim for relief because TCS “was not obligated, within the meaning of the FCA, to pay higher payroll taxes for its employees or pay application fees for applications it never sought.” The district court also dismissed his retaliation claim, concluding that he had not engaged in FCA-protected activity.

He timely appealed to the D.C. Circuit.

Reverse false claim and “required wage rate.” The court first rejected the former employee’s FCA reverse false claim premised on the employer’s alleged failure to adhere to an obligation to remunerate H-1B employees their “required wage rate.” He argued that any reduction in the payment of required wages to H-1B workers under 20 C.F.R. § 655.731(a) and the associated taxes to the government creates an obligation that can support a reverse fraud claim, but the court was unpersuaded. The FCA, it emphasized, requires relators to show an obligation “to pay or transmit money or property to the Government.” 31 U.S.C. § 3729(a)(1)(G). And here, though Section 655.731(a) compels an employer to pay H-1B employees specified wages, it does not force an employer to pay or transmit money or property to the government. Because Section 655.731(a) does not reference money owed to the government, the appeals court concluded, the regulation does not create the requisite obligation for a reverse false claim under the plain meaning of the provision.

Fraudulent application for cheaper visas. The former employee’s second theory, that TCS fraudulently applied for cheaper L-1 or B-1 visas and, thus, avoided its “obligation” to pay the government higher H-1B visa fees, fared similarly. TCS, the D.C. Circuit found, never applied for the H-1B visas that would have obligated it to pay the higher application fee of $6,460. Thus, it had no such obligation—at least not within the meaning of the FCA—to pay for visas it never sought.

Retaliation and FCA-protected conduct. The former employee did adequately plead that he engaged in FCA-protected conduct, however. Because he only had to allege that he “took lawful measures to stop or avert what [he] reasonably believed would be a violation of the False Claims Act,” plausible factual allegations of protected activity were contained within his reporting of FCA violations to TCS, particularly on May 1, 2017, June 22, 2017, and January 18, 2018, on each of which days he submitted communications to TCS expressing concerns regarding the existence of government fraud regarding visas and TCS’s violation of the FCA through its failure to address it.

In his initial whistleblower report, he observed that, “[c]onsidering the current mandate from USCIS under [the] Trump administration, the implications of US Visa abuse are huge for TCS & [the] entire Indian IT industry, as a whole.” In addition, after providing a specific description of fraudulent L-1A visa conduct, he inquired whether TCS will “stop these illegal practices and visa abuses . . . before DHS/USCIS comes to know of it.” In another example, he asserted that because TCS “should be fully aware of USCIS rules with regards to US Visas for all categories,” he should not have to file “a Whistle Blower Complaint” for the company “to check this fraud.” Finally, in his January 2, 2018, whistleblower report to the independent investigator, he questioned whether TCS leadership was “aware of the grave implications of US Visa Fraud?”

Accepting his factual allegations as true at the Rule 12(b)(6) stage and drawing all justifiable inferences in his favor, the D.C. Circuit found sufficient allegations of protected activity under 31 U.S.C. § 3730(h)(1) to satisfy the first element of an FCA retaliation claim.

Alleged retaliatory actions. Finally, the court found that TCS had notice of the employee’s protected conduct starting on May 1, 2017, when he “submitted a 57-page whistleblower report to” TCS’s CEO and VP of HR. Over the course of the following year, moreover, he sent additional follow-up reports to TCS, met with an independent investigator, who was appointed by TCS, and provided the investigator with evidence.

He pleaded causation alleging that TCS began to retaliate immediately on May 1, 2017, which eventually culminated in his termination on August 9, 2018. And as to specific retaliatory acts, he alleged that TCS reduced his pay, denied his promotion, stripped him of his leadership role, removed him from the Western Union client account, and then fired him. He also pleaded the requisite employer’s knowledge, alleging that TCS directed retaliatory, discriminatory, and hostile conduct toward him after he raised his concerns about the alleged visa fraud.

Viewing these allegations in the light most favorable to the former employee, he thus sufficiently alleged TCS’s knowledge of his protected activity, its commission of retaliatory conduct against him, and a connection between the conduct and his protected activities. The district court’s dismissal of the retaliation claim was accordingly reversed.

Partial concurrence. Concurring in part and dissenting in part, Judge Katsas argued that the plaintiff failed to state a claim that the employer avoided monetary obligations to the government, and that he failed to state a claim for retaliation as well. In Judge Katsas’ view, although the complaint supported a more-than-plausible inference that Tata retaliated against the employee for his efforts to stop alleged violations of the INA, it did not support a plausible inference that Tata retaliated against him for any efforts to stop alleged FCA violations.

The case is No. 24-7032.

Judge: Childs, J.

Attorneys: Daniel Kotchen (Kotchen & Low) for Anil Kini. Daniel Stephen Volchok (Munger, Tolles & Olson) for Tata Consultancy Services, Ltd.

Companies: Tata Consultancy Services, Ltd.

Cases: Whistleblowers Retaliation Discharge Immigration DistrictofColumbiaNews GCNNews