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United States v. Narang

United States District Court, E.D. Virginia, Alexandria Division

August 21, 2019

RICHA NARANG, Defendant.


          Leonie M. Brinkema United States District Judge

         After a bench trial of Richa Narang ("Narang" or "defendant") on one count of conspiracy to commit visa fraud and two counts of visa fraud, the Court took the case, as well as defendant's motion to dismiss the indictment for insufficient evidence, under advisement. This Memorandum Opinion constitutes the Court's findings of fact and conclusions of law. For the reasons stated below, defendant's motion to dismiss will be denied, and she will be found guilty of all three charges.

         I. BACKGROUND

         This case had a difficult procedural history, which resulted in a significant delay in its resolution.

         A. Original Indictment and Proceedings

          On April 26, 2016, a federal grand jury in the Eastern District of Virginia returned a 21-count indictment charging Narang and five codefendants-Raju Kosuri ("Kosuri"), Smriti Jharia ("S. Jharia"), Vikrant Jharia ("V. Jharia"), Sanchita Bhattacharya ("Bhattacharya"), and Raimondo Piluso ("Piluso")-with various offenses related to an alleged H-1B visa fraud scheme. Specifically, Narang was charged with one count of conspiracy to commit visa fraud in violation of 18 U.S.C. § 371 (Count 1)[1] and two counts of visa fraud in violation of 18 U.S.C. § 1546(a) (Counts 6 and 7).[2] Al the arraignment. Narang and her codefendants entered not guilty pleas to all charges and requested trial by jury.

         Narang subsequently reached a plea agreement under which she agreed to plead guilty to a one-count criminal information charging her with wire fraud[3] and to cooperate fully with the prosecution. In exchange, the government agreed to move to dismiss Counts 1, 6, and 7 of the indictment pending against Narang and agreed not to prosecute her further for any offenses related to the alleged visa fraud scheme. On August 18, 2016, after conducting a plea colloquy under Rule 11 of the Federal Rules of Criminal Procedure, the Court accepted Narang's guilty plea, found her guilty of wire fraud, and dismissed the indictment against her. Narang's codefendants Kosuri, S. Jharia, and Piluso also reached plea agreements with the government.[4]

         On September 22, 2016, a federal grand jury returned a superseding nine-count indictment charging the remaining defendants, Bhattacharya and V. Jharia, with various offenses related to the alleged H-1B fraud scheme, and the original indictment was dismissed. Bhattacharya and V. Jharia went to trial later that year. On the third day of trial-after Narang had been called as a government witness the previous day-counsel for Bhattacharya and V. Jharia advised the Court of potential violations of the government's obligations under Brady v. Maryland. 373 U.S. 83 (1963), Giglio v. United States. 405 U.S. 150 (1972), and the Jencks Act, Pub. L. No. 85-269, 71 Stat. 595 (1957) (codified as amended at 18 U.S.C. § 3500). For example, the defendants identified undisclosed prosecutorial notes from interviews conducted with government witnesses, including Narang, that they claimed contained material impeachment evidence. See, e.g.. Jury Trial Tr. [Dkt. No. 160] 504-06. The defendants also complained that the prosecution had turned over hundreds of pages of investigative reports at midnight before the third day of trial. See Id. at 512-13. In addition, the defendants raised concerns about whether the government had timely disclosed an offer of immunity to a witness and whether the government had produced all witness statements pursuant to the Jencks Act. See, e.g.. Id. at 504-05, 516, 522.

         Based on these alleged discovery abuses, Bhattacharya and V. Jharia jointly moved to dismiss the superseding indictment with prejudice. Jury Trial Tr. [Dkt. No. 160] 511. In response, the chief of the criminal division of the U.S. Attorney's Office for the Eastern District of Virginia, speaking on behalf of the government, acknowledged that he "c[ould] not say ... with any confidence that [the government had] met [its] discovery obligations" but urged the court to declare a mistrial so that the defendants could be retried. Id. at 542. The Court concluded that the government had violated its discovery obligations and dismissed the superseding indictment against Bhattacharya and V. Jharia with prejudice. The government did not appeal that order of dismissal.

         B. Withdrawal of the Previous Guilty Pleas

         One week after dismissing the superseding indictment, the Court granted the four remaining codefendants' motions to continue their sentencing hearings to enable them to engage in additional discovery with the government and "evaluate the impact, if any, of the problems ... which led to the dismissal of the charges against" Bhattacharya and V. Jharia. Order [Dkt. No. 166] 1. The Court advised each remaining defendant to consider whether to proceed to sentencing or move to withdraw his or her guilty plea. Status Conf. Tr. [Dkt. No. 291 ] 16. The Court further advised the defendants that if they elected to withdraw their guilty pleas, any future proceedings could be "randomly reassigned to a different judge for trial" if they wished. See Id. at 16-17.

         Piluso was the first to move to withdraw his guilty plea. The government not only consented to the withdrawal of the plea but also, after having reviewed the evidence concerning Piluso's role in the alleged fraud scheme, moved to dismiss the indictment against him. The Court granted Piluso's motion to withdraw his guilty plea and the government's motion to dismiss the indictment.

         Narang, Kosuri, and S. Jharia also moved to withdraw their guilty pleas and to dismiss their respective charging documents, motions which the government opposed. The Court concluded that despite the heavy presumption of veracity afforded to statements made during plea colloquies, the fairest procedure in light of what had happened was to permit the defendants to withdraw their guilty pleas, at which point each could proceed to trial or negotiate a new plea agreement with the government. See Mots. Hr'g Tr. [Dkt. No. 251] 11-12. The Court also reiterated that each defendant could elect to have future proceedings reassigned to a different district judge. Id. at 12-13.

         S. Jharia and Kosuri elected to negotiate new plea agreements with the government. See Status Conf. Tr. [Dkt. No. 266] 3. Both declined to have their cases reassigned to a new judge, and the Court accepted both defendants' new guilty pleas.[5] On December 22, 2017, Kosuri was sentenced to 28 months' imprisonment to be followed by three years' supervised release, and S. Jharia was sentenced to one year of supervised probation.

         C. Narang's Not Guilty Plea and Bench Trial

         Unlike S. Jharia and Kosuri, Narang elected to enter a plea of not guilty and proceed to trial. When asked whether "th[e] case need[ed] to be reassigned to another judge," counsel for Narang responded that she "would prefer that [the same judge] keep the case." Status Conf. Tr. [Dkt. No. 266] 11-12. Rather than requiring the government to secure a new grand jury indictment, the Court reinstated the original indictment that had charged Narang with one count of conspiracy to commit visa fraud and two counts of visa fraud. Narang also elected to waive her right to trial by jury and requested a bench trial, and both parties submitted proposed findings of fact and conclusions of law for the Court's consideration.[6]

         The Court conducted a one-day bench trial during which the government called six witnesses: Kosuri, Narang's codefendant; Ravinder Kaur ("Kaur"), an unindicted coconspirator who testified under an immunity agreement; Divya Chopra ("Chopra"), on whose behalf Narang and her coconspirators attempted to obtain an H-1B visa; Ramesh Venkata ("Venkata"), whose wife was another H-1B visa beneficiary working with Narang and her coconspirators; and Michael Violett ("Violett") and Laura Hutson ("Hutson"), two U.S. Citizenship and Immigration Services ("USCIS") officers.[7] Narang called only one witness: Rajiv S. Khanna ("Khanna"), who had previously been qualified as an expert on employment immigration law.

         After the conclusion of the evidence and closing arguments, Narang moved to dismiss the indictment for insufficient evidence[8] and has twice supplemented that motion.[9]


         The evidence at trial revealed that Kosuri created and operated a wide-reaching and complex visa fraud scheme. The evidence further revealed that Narang willingly joined and played a major role in that scheme, including through her knowing and intentional production of fraudulent documents that would be submitted to the USCIS and that would be material to that agency's evaluation of the H-1B visa applications.

         A. The H-1B Visa Program

         The H-1B visa program allows U.S. businesses to employ foreign skilled workers on a temporary basis to fill specified needs. An H-1B visa is typically valid for only six years, and upon its expiration the visa recipient (known in immigration-law parlance as the "beneficiary") must pursue lawful immigration status through other avenues or return to his or her country of origin. To be eligible for an H-1B visa, the beneficiary must have at least a bachelor's degree (or the equivalent) or "[h]ave education, specialized training, and/or progressively responsible experience that is equivalent to completion of a United States baccalaureate or higher degree in the specialty occupation." See 8 C.F.R. § 214.2(h)(4)(iii)(C) (2015) (listing beneficiary qualifications).[11] Because the number of H-1B visas available each year is limited and usually exceeded by the number of H-1B petitions filed, the government uses a lottery system to decide which petitions it will adjudicate. H-1B petitions not selected in the lottery are automatically rejected.

         A U.S. employer seeking to take advantage of the H-1B program must first file a labor condition application ("LCA") with the U.S. Department of Labor (the "DOL"). See generally GEX 3 (graphical overview of the H-1B visa application process). Each LCA must include, among other things, "a specification of the number of workers sought, the occupational classification in which the workers will be employed, and wage rate and conditions under which they will be employed." 8 U.S.C. § 1182(n)(1)(D); see also GEX 1 (outlining the requirements for completing an LCA, including identification of the geographical area of employment and prevailing wage information). An employer may file one LCA seeking DOL approval for multiple positions. An employer submitting an LCA is required to be truthful, and any willful misrepresentation of material fact exposes the employer to administrative remedies, civil fines, and other penalties. See, e.g., id § 1182(n)(2)(C).

         Once the DOL has approved an LCA, the employer must file a Form 1-129 petition with the U.S. Department of Homeland Security ("DHS") for each foreign skilled worker it seeks to hire for a position identified in the LCA. See generally GEX 2 (providing instructions for completing 1-129 petitions).[12] Although a company may file a 1-129 petition on its own behalf, a third-party staffing company also may act as an intermediary between the underlying "client site"-that is, the employer for whom the beneficiary will work-and the government. The 1-129 petitioner must demonstrate to the government that the position to be filled by the designated foreign worker is a "specialty occupation position," which is defined as one for which a bachelor's degree or its equivalent is normally required or for which "[t]he nature of the specific duties are so specialized and complex that [the] knowledge required to perform the duties is usually associated with the attainment" of such a degree. See 8 C.F.R. § 214.2(h)(4)(iii)(A).[13] The petition must also specify many details about the position to be filled, including the job duties, expected hours, and length of employment. As with all submissions seeking immigration-related benefits, the petitioner "must sign ... [the] request" and "certif[y] under penalty of perjury that the ... request, and all evidence submitted with it, either at the time of filing or thereafter, is true and correct." Id. § 103.2(a)(2) (included as GEX 90A).

         Each 1-129 petition is assigned to a USCIS adjudications officer. If the petition is deficient or unclear, the officer can seek additional information from the petitioner through a request for evidence ("RFE"). RFEs may cover information about anything from the specific job duties or industry to the exact relationship between a staffing company and the underlying employer. See Bench Trial Tr. [Dkt. No. 358] ("Bench Trial Tr.") 25. If after further review a petition is found to be incurably deficient or fraudulent, the USCIS will deny the petition. See id at 32-33.

         If the DHS approves an 1-129 petition and authorizes the issuance of an H-IB visa to the foreign worker, [14] the petitioner must inform the worker and begin paying the worker's salary promptly. See 20 C.F.R. § 655.731(c)(6) (included as GEX 90). Normally, an H-1B beneficiary "shall receive the required pay beginning on the date when [he] 'enters into employment, '" meaning the day when he "first makes [him]self available for work or otherwise comes under the control of the employer." Id. If a beneficiary has not made himself available for work, payment must begin 30 days after the date he is first admitted into the United States or, if already present in the country, within 60 days of becoming eligible to work. Id. If the beneficiary is available for employment and in the United States but the position is not immediately available, the employer has an obligation to pay the beneficiary for nonproductive time. Finally, if during the course of a beneficiary's visa term the underlying conditions of employment change-for example, if the employer no longer needs the foreign skilled worker's services-the employer must notify the USCIS, and the beneficiary's H-1B status will be terminated.

         B. EcomNets and the Fraud Scheme

          Kosuri incorporated EcomNets Inc. ("EcomNets") in 2000. GEX 4. Initially, the company was focused on software development; however, around 2011, its focus shifted to obtaining work visas for IT professionals. Most of the individuals for whom Kosuri attempted to procure visas were Indian nationals, many of whom were already living in the United States under dependent visas but were not permitted to work. EcomNets's main offices, at which no more than 10 employees worked, were located in Loudoun County, Virginia. Some time in 2010 or 2011, Kosuri opened an additional facility in Danville, Virginia, which came to be known as the "Green Technology Center." The Danville facility was essentially a warehouse, containing a few computers used for customer data storage. There were never more than three employees working in that facility: two office managers and one technician.

         To prevent USCIS from becoming suspicious about his scheme, Kosuri created a number of other companies to be used as the petitioners on H-1B visa applications. These companies were Unified Systems USA Incorporated ("Unified Systems"), see GEX 5; United Tech Inc. ("United Tech"), see GEX 6; United Software Solutions Incorporation ("United Software"), see GEX 7; and Data Systems Inc. ("Data Systems"), see GEX 8. As part of his scheme, Kosuri called these corporate entities "staffing companies" and listed them as such on multiple H-1B applications. The staffing companies' 1-129 petitions would claim to be seeking to fill open positions with EcomNets at its Danville facility.

         In fact, none of the four "staffing" companies "operated independently" of EcomNets, nor did any have a separate "physical location, staff, [or] business plan." See Bench Trial Tr. 57; Id. at 58 (Kosuri acknowledging that the other companies were "all part of EcomNets"). The evidence also clearly established that the Danville facility had no open positions, no need for additional workers, and no work in software development or any other specialized field. See Bench Trial Tr. 58 (Kosuri direct examination: "Q. Were there, in fact, at any time jobs planned for these people at the Danville facility? A. No, there were no jobs there."). Instead, once one of Kosuri's "staffing" companies had secured an H-1B visa, Kosuri and his coconspirators worked to find a job for that beneficiary with third-party companies, many of which were located outside Virginia. Those third-party companies paid EcomNets for the services provided by the visa beneficiaries. In turn, EcomNets retained a portion of that payment and tunneled the remainder to the beneficiaries. In essence, Kosuri's scheme was to use the ruse of employment opportunities at the Danville facility to obtain H-1B visas and, once the visas were obtained, to place the visa beneficiaries in undisclosed jobs with unrelated third-party employers, keeping a portion of their salaries for EcomNets's expenses and profit.

         Kosuri and his coconspirators went to great lengths to shield their actions from governmental scrutiny, including by using fake names and fraudulent documents. For example, 1-129 petitions and other documents submitted by United Software were signed by a "Sam Bose," allegedly United Software's HR Manager. Kosuri testified that no such person existed and that the name had been made up by Bhattacharya, who would affix a "Sam Bose" signature to United Software documents when prompted by one of her coconspirators. Bench Trial Tr. 60-61. Petitions and other documents submitted by United Tech were signed by a "Sonia Basu," described as United Tech's HR Manager. This was another fictional name Bhattacharya and other coconspirators used to sign documents submitted to the USCIS. On occasion, even visa beneficiary signatures were forged on documents submitted to the government. See Id. at 204 (discussing GEX 75, at 22656, which contains a forged signature for beneficiary Chopra). Compare, e.g., GEX 110, at 2019 (showing a signature for Guatami Sundaram ("Sundaram"), one of the visa beneficiaries working with EcomNets), and Bench Trial Tr. 222 (Venkata, Sundaram's husband, affirming that the signature was hers), with, e.g., GEX 110, at 2036 (showing a markedly different signature), and Bench Trial Tr. 223 (Venkata testifying that the signature was not Sundaram's). Once an H-1B visa had been obtained, Kaur, an unindicted coconspirator who worked for Kosuri as an HR employee, would cover the fraud by generating "offer letters" detailing the beneficiary's employer, location, job title, and salary-even when no genuine job had been located. The beneficiary would be required to sign the offer letter regardless of its inaccurate contents. See Bench Trial Tr. 70 (Kosuri direct examination: "Q. Why did you want them to sign offer letters when they got their visas approved? A. Because we need to ... complete the paperwork to keep them employed. You know, they need to have some kind of a job. Q. This is before they even have a job sometimes, right? A. Yes."). To avoid the obligation of paying its visa beneficiaries in a timely fashion, EcomNets instructed the beneficiaries to file false requests for voluntary leave. Id. at 76-77 (Kosuri: "[O]ur intention is not to ... pay them from the Day One. After they get the project, we want to pay them ... from their salary from that point onwards."); see Id. at 78 (Kosuri recognizing that EcomNets's voluntary leave letter policy was inconsistent with the applicable regulations); see also, e.g., GEX 14A (four-month voluntary leave request signed by Deepika Jaiswal). Kosuri and his coconspirators also forged documents that could be used to mislead government adjudicators in response to RFEs. These included false leases, contract documents, and purchase orders designed to convince USCIS officials that there was a bona fide business relationship between the "shell" company that had acted as the 1-129 petitioner and EcomNets. See, e.g., Id. at 116-18 (discussing GEX 130, a falsified document indicating that United Software had leased office premises in Sterling, Virginia); GEX 110, at 2082 (containing a false purchase order signed by representatives of EcomNets and United Tech).

         C. Narang's Role

         Kosuri hired Narang as EcomNets's Senior Business Development Manager (at times just called the IT Director) in mid- to late 2013. See GEX 11. Her job was to place "bench" beneficiaries-a term used to describe foreign workers who had been issued H-1B visas but who had yet to begin work-with other companies. See GEX 12, at 228135 (Kosuri stating in an August 2013 email that Narang would be "[Responsible for closing all our bench in [the] next 6 months"). Narang was an attractive candidate in part because she represented on her resume that she had experience with the H-1B visa process. See GEX 9, at 938709. Although Narang had worked as a senior paralegal and case manager for Khanna's immigration firm since 1999, her resume misrepresented both her experience with H-1B visa applications and her role as a supervisor.[15] Once Narang accepted the position, she became the point person for many beneficiaries' questions about the H-1B visa process. See Bench Trial Tr. 156.

         The testimony of witnesses and the documentary evidence established beyond a reasonable doubt that Narang was intimately involved in all aspects of the H-1B scheme. Cf. GEX 17 (email from Narang to Kosuri with an attachment outlining the entire recruitment life cycle). She helped to maintain the "bench" list of all H-1B beneficiaries still looking for jobs. She worked alongside EcomNets HR staff in preparing the documentation necessary for LCAs, 1-129 petitions, and responses to RFEs. And she was ultimately responsible for obtaining jobs for approved H-1B beneficiaries looking for work in locations other than the Danville, Virginia facility, including as far as California. See, e.g., GEX 23 (referring to a beneficiary whose "relocation preference" was Burbank, California (capitalization altered)); see also GEX 25 A (containing a list of "bench" beneficiaries awaiting a job and listing their locations, including Arizona, Connecticut, Illinois, Iowa, New Jersey, New York, North Carolina, and Texas).[16] If beneficiaries were having ...

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