New Targets, New Tactics: DOJ Whistleblower Program Focuses on Immigration Enforcement

A new US Department of Justice (DOJ) policy, outlined in a memorandum titled “Focus, Fairness, and Efficiency in the Fight Against White-Collar Crime,” signals increased scrutiny and an expanded enforcement focus of potential violations of federal immigration laws by corporations, including H-1B employers. The DOJ’s whistleblower pilot program now expressly includes corporate misconduct involving immigration violations, such as the misuse of employment-based visa programs. This shift in enforcement priorities comes as the US Federal Bureau of Investigation (FBI) scales up immigration enforcement ahead of traditional white-collar cases. As we previously reported, the Trump Administration is emphasizing corporate accountability for criminal violations of immigration law as a central component of its enforcement strategy.

Although whistleblowers have long sought to pursue visa-fraud cases under the False Claims Act (FCA)—and DOJ continues to encourage such filings—the FCA has proven ineffective in this context. The newly revised whistleblower program now creates an alternative path for bringing these claims against corporations and employers.

The Corporate Whistleblower Pilot Program Has Been Expanded

DOJ’s Criminal Division launched this initiative in August 2024 to combat corporate crime by focusing on: (1) certain crimes involving financial institutions; (2) foreign corruption involving misconduct by companies; (3) domestic corruptions involving misconduct by companies; or (4) health care fraud schemes involving private insurance plans. With the May 12 revisions, the focus areas expanded to include “violations by or through companies related to federal immigration law,” among others.

FCA Cases Against Employers Involving Federal Immigration Law Have Largely Failed

What is the FCA? The FCA provides a means for the government and private parties (qui tam plaintiffs—commonly identified as “whistleblowers” or “relators”) to file civil suit against any individual or company who knowingly presents a material false or fraudulent claim for payment or approval to the federal government, or who knowingly avoids an obligation to pay money to the government.

For FCA purposes, the government or relator must show that the accused actually knew that its statements were false or that they made a false statement with reckless disregard for, or while deliberately ignorant of, the truth.

Current State of Visa Fraud Cases under the FCA: Several relators tried to use the FCA against employers for cases involving federal immigration law—namely visa fraud—but largely without success. The biggest hurdle has been proving that visa petitions are “claims” because “‘the [FCA] attaches liability, not to the underlying fraudulent activity or to the government’s wrongful payment, but to the claim for payment.’”¹

Most recently, an employer defeated a whistleblower’s FCA lawsuit because the court found that visa petitions are not “claims” because visas cannot be classified as either money or property.² Courts have consistently followed the logic of a unanimous Supreme Court decision authored by Justice Ruth Bader Ginsburg about whether the federal mail fraud statute reaches false statements made in an application for a state video poker machine license, and held that visas, like licenses, do not constitute government property because “a government regulator ‘does not part with ‘property’ when it issues a license [or visa] because ‘such a license [or visa] is not ‘property’ in the government regulator’s hands.’”³

Reverse False Claims: The FCA also prohibits “reverse false claims” where a person “knowingly makes, uses, or causes to be made or used, a false statement material to an obligation to pay or transmit property to the Government, or knowingly conceals or knowingly and improperly avoids or decreases an obligation to pay or transmit money or property to the Government.” Thus, the FCA creates liability where a person has an obligation to pay the government that was avoided through fraudulent activity.

Relators have attempted to bring reverse FCA claims by alleging that employers improperly avoided paying higher government fees by using lower-cost options, such as B-1 or L-1 visas, over more expensive options such as H-1B visas. Courts, however, have routinely dismissed these types of claims (except in one outlier case) on the theory that petitioners only have an “obligation” to pay for the visas for which employees actually applied – not for alternative visas for which they could have applied.

Federal Enforcement Tools: What Employers Should Know

A number of federal criminal statutes may apply directly to allegations of visa fraud and should be understood as part of an employer’s broader compliance risk. For example, federal criminal law prohibits the making of any materially false statement in a visa petition. Similarly, the general false statement statute prohibits the knowing making of false statements to the federal government, and the criminal conspiracy statute prohibits schemes to defraud the federal government of its regulatory authority. Unlike the FCA, which has proven difficult to apply in this context, these criminal statutes may offer federal prosecutors another avenue – raising the stakes for employers and making preventative compliance more critical.  

In this Environment, Employers Must Step Up Immigration Compliance Programs

Given the many avenues for prosecution, and the new incentives for whistleblowers to come forward, employers must proactively address compliance with federal immigration laws. These include adopting strategies to ensure employment practices are predicated on a good-faith belief that they are lawful.

Employer preparedness in today’s environment means:

1. Including immigration law compliance in internal investigations protocols.
2. Conducting internal audits to identify and address areas of vulnerability.
3. Creating and managing reporting channels for potential compliance concerns.
4. Taking all internal whistleblower reporting seriously, with a designated response team.
5. Conducting training for legal, HR, and hiring teams, that incorporates immigration law compliance.

Mayer Brown is uniquely positioned to guide corporations and employers through the compliance challenges of this high-stakes enforcement environment. Our dedicated immigration worksite enforcement team combines one of the nation’s top-ranked practices in business immigration law with seasoned white-collar leaders in responding to investigations (including former DOJ officials) and labor and employment practitioners.

 

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¹ United States ex rel. Longhi v. Lithium Power Techs., Ins., 575 F.3d 458, 467 (5th Cir. 2009).

² Memorandum Opinion and Order, U.S. ex rel. Palmer v. Tata Consultancy Services, Ltd., 4:17-cv-72, ECF 81 at 13 (E.D. Tx. May 20, 2025) (“[a] visa application does not request money in any way, shape, or form” and although “valuable insofar as they authorize foreign employees to work in the United States,” visas alone do “not possess any pecuniary value that would qualify it as ‘money.’”).

³ Id. (citing Cleveland v. United States, 531 U.S. 12 (2000)).