United States, ex rel. Gregor Lesnik, et al. v. ISM VUZEM, d.o.o., et al.

The False Claims Act of 1986, 31 U.S.C. § 3729 (the FCA), prohibits a person from knowingly making, using, or causing to be made or used “a false record or statement material to an obligation to pay or transmit money or property to the Government” and from knowingly concealing or knowingly and improperly avoiding or decreasing “an obligation to pay or transmit money or property to the Government.” 31 U.S.C. § 3729(a)(1)(G) (setting forth what is known as a “reverse” claim under the FCA). Congress amended the FCA in 2009 to define “obligation” as “an established duty, whether or not fixed, arising from an express or implied contractual, grantorgrantee, or licensor-licensee relationship, from a fee-based or similar relationship, from statute or regulation, or from the retention of any overpayment.” 31 U.S.C. § 3729(b)(3). Respondent employers herein applied for visas to bring Petitioners and hundreds of co-employees to the U.S. to perform unskilled construction work. Respondents applied for non-petition-based B-1 (B1/B2) visas, which by statute, regulation and established case law of more than a half century may not be used for construction work. They did not apply for petition-based visas which are more expensive. The question is: Whether knowingly applying impermissibly for the less expensive B1 visas, rather than alternative petitionbased visas, was knowingly and improperly “avoiding or decreasing” an “obligation to pay or transmit money or property to the Government” under the FCA, 31 U.S.C. § 3729(a)(1)(G).