owner’s practice of specifying certain documents was,
therefore, an inadvisable one.
On Oct. 20, 2015, Nevada Yellow Cab Corporation reached a
settlement agreement with the U.S. Justice Department for
immigration-related discriminatory behavior. A civil penalty
of $445,000 was imposed and the company was required to
place print advertisements in a monthly trade publication for
a period of six non-consecutive months advising employees
of the anti-discrimination provision of the INA.
The reason was that the Yellow Cab Corporation had
imposed on immigrants with work permits additional and
unnecessary documentary requirements to prove their
employment eligibility, which constituted discriminatory
treatment.
From the examples above, we can see that during the
recruitment process, if you ask directly about the applicant’s
immigration status, it will likely be seen as inappropriate. In
addition, in implementing the I-9 process, over enforcement
toward individuals of a certain immigration status may
constitute immigration-based discrimination. Given this
situation, then, how should EB-5 employers who want to
impose some special requirements for purposes other than
proving work eligibility go about doing so? Does the law
have exceptions?
IS EB-5 DIRECT INVESTMENT AN
EXCEPTION TO THE IMMIGRATION-
RELATED DISCRIMINATION PROVISIONS?
Section 274B of the Immigration and Nationality Act
lists three kinds of exceptions to the immigration-related
discrimination provisions. The following 3 kinds of situations
do not constitute a section 274B-type legal violation.
They include: a person or other entity that employs three
or fewer employees, a person’s or entity’s discrimination is
covered under section 703 of the Civil Rights Act of 1964;
or discrimination because of citizenship status, which is
otherwise required by law, regulation or executive order or
required by Federal, State, or local government contract or
which the Attorney General determines to be essential for
an employer to do business with an agency or department
of the Federal, State, or local government.
Among the three exceptions above, the first is certainly not
applicable. EB-5 direct investment job creation numbers
must be greater than three. The second exception covers
employers who have committed larger, more serious
violations and is governed by other legislation. Regarding
the third exception, some people think it applies to EB-5
cases, but that is not entirely accurate.
It is not the case that the EB5 job positions must be filled
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EB5 INVESTORS M AGAZINE