Texas brothers convicted in H-1B Visa fraud case seek new trial

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Two brothers convicted by a Texas federal jury in November 2015 for their roles in a scheme to misuse H-1B work visas for computer consultant positions requested a new trial on last week, claiming that the government withheld critical information from them.

Atul and Jiten Nanda are also seeking that their indictments and convictions be tossed and that certain evidence be stricken or excluded. The Nanda brothers maintain that the federal government allegedly made certain promises to witnesses who testified against them that were not revealed during the course of the case nor approved by the court, Law 360 reported.

The Nandas claim that the government made verbal promises to the witnesses, who also worked for Dibon Solutions, that they would not be deported as a result of their plea deals, according to the motion. Neither the witnesses nor the government made the promises clear during the course of the trial, hampering the brothers’ ability to reasonably question the authenticity of the testimony entered against them, they claim.

The revelations came during the sentencing phase of the case, when the government advocated that the witnesses receive fines of less than $10,000 so that they would not be convicted of an aggravated felony and thus be subject to deportation, according to the motion.

The brothers were each convicted on one count of conspiracy to commit visa fraud, one count of conspiracy to harbor illegal aliens, and four counts of wire fraud. were convicted in November of one count of visa fraud, one count of harboring illegal aliens and four counts of wire fraud, a November 2015 press release from U.S. Attorney’s Office of the Northern District of Texas said. The brothers “created, established and ran” Dibon Solutions from about March 2005 to February 2011.

Their scheme was based around installing H-1B workers they recruited under false pretenses at third-party businesses, rather than at their own company, and only paying the workers for the time they spent working, a practice commonly known as “benching.” The Nandas’ visa paperwork falsely stated that the workers had full-time positions with annual salaries with Dibon Solutions, two requirements of the federal government to secure the visas.

The federal government alleged in February 2013 that from March 2005 to February 2011, the Nandas sponsored the workers through the H-1B visa program, which allows people to enter the U.S. to work in specialty occupations. Rather than receiving an annual salary, the workers only got paid if they performed the “consulting work,” and the brothers pocketed profits from the workers’ labor while not having to pay them anything, the indictment alleged.

The Nandas argued on Feb. 24 that because none of the significant information they reference in their motion was acknowledged by the government or the witnesses before the conclusion of the trial and because it was not discovered because of a lack of diligence on their part, they are entitled to a new trial, Law360 reported.