" Recruiting individuals based on the form I-9 does not necessarily guarantee that you will find someone who satisfies the EB-5 employee requirement... "
their family members. Of course, EB-5 companies can still employ these people, but they cannot enter into the company’ s EB-5 direct job creation calculation.
In a May 2013 policy memorandum, USCIS laid out the documentary requirements to demonstrate job creation: tax records, form I-9 and other relevant documents. Of all the documents used to prove that the company’ s employees are qualifying employees in EB-5 applications, the most looked at is form I-9 – an employment eligibility certification form-- and its supporting materials.
However, form I-9 is not only used to fulfill EB-5 company requirements, it is also used to fulfill the requirements of all companies. The form I-9 regulations were not implemented for the purpose of investigating the immigration status of employees, but rather, to ensure that companies hire employees who are work eligible.
In other words, form I-9 only looks at work eligibility and does not look at a person’ s specific immigration status. Therefore, recruiting individuals based on the form I-9 does not necessarily guarantee that you will find someone who satisfies the EB-5 qualifying employee requirement for job creation. So the question is, how should EB-5 investors distinguish job applicants’ immigration status, and through what methods can they find employees who are work eligible?
Some EB-5 investors during a job interview may ask directly: do you have a green card? Are you a citizen? In what status are you now in the United States? However, other EB-5 investors worry that this kind of questioning could place them in violation of the law. So, what kind of practices and questions are lawful and what questions are against the law?
WHAT IS IMMIGRATION-RELATED EMPLOYMENT DISCRIMINATION?
Section 274B of the Immigration and Nationality Act prohibits immigration-based discrimination. Moreover, in U. S. employment law, there are various categories of people specifically covered in anti-discrimination provisions. Employers must refrain from discriminating against any employee or any candidate in the recruitment process on the basis of age, gender, race, disability or other reasons. In U. S. immigration law, there are also related prohibitions on employers discriminating
" Recruiting individuals based on the form I-9 does not necessarily guarantee that you will find someone who satisfies the EB-5 employee requirement... "
against employees or candidates on the basis of their immigration status or national origin.
Generally speaking, immigration-related discrimination is closely linked with the submission of form I-9. If the employer imposes stricter requirements on employees of a certain status, or the employer’ s requirements surpass the legal standards, the employer may be suspected of committing immigration-related discrimination. If the above-mentioned statutory provisions still seem a bit mysterious, the following examples of recently reported company violations can help us understand practically what kinds of behaviors violate the law:
On Nov. 19, 2015, McDonalds reached a settlement agreement with the U. S. Justice Department for immigration-related discriminatory behavior. A civil penalty of $ 355,000 was imposed and the company was forced to undergo 20 months of monitoring and compensate employees for lost wages based on the facts of each case.
The reason was that McDonalds had required employees who were green card holders to present a new green card when the old one expired or risk losing their jobs. McDonalds’ conduct violated the law, as the form I-9 compliance requirements clearly state that green card holding employees only need to provide an unexpired green card initially, after which they do not need to provide a new green card even if the old one expires.
Therefore, McDonalds’ conduct constituted discriminatory treatment toward green card employees. In October of 2015, a similar event occurred at the American freight and logistics company Postal Express, Inc.
On Oct. 22, 2015, the Miami-Dade County Public Schools reached a settlement agreement with the U. S. Justice Department for immigration-related discriminatory behavior. A civil penalty of $ 90,000 was imposed and the company was required to pay employees remuneration of $ 125,000. The reason was that in implementing its form I-9 procedures, Miami-Dade County Public Schools had demanded some specific documents from immigrants with work permit and those unable to provide them were relieved.
According to the form I-9 regulations, the employer is to provide to the employee a list of documents that satisfy the form I-9 requirements and allow the employee themselves to choose the most appropriate proof. The
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