by employees who have a certain legally mandated
immigration status, but rather, it is only that those
without this kind of immigration status cannot be
counted towards the EB-5 job creation number. This
is different from a government contract that actually
requires job positions to be filled by persons with a
certain immigration status.
In 2011, Justice Department official Katherine A. Baldwin,
in an open letter reply to an immigration attorney, issued
her own opinion on the issue of how EB5 companies
can avoid immigration-related discrimination. She said
that when an EB5 company, in demanding additional
materials, treats all persons the same regardless of
immigration status, then its demand does not constitute
immigration-related discrimination.
This slightly general opinion does not hold a great deal
of significance for the guidance of practical operational
details. However, it shows us that EB5 companies can go
beyond the general requirements of Form I-9 to require
additional materials, so long as the process does not
show any kind of partiality toward persons of a particular
status, and is not especially stringent. Although the
above cited and discussed EB-5 and immigration
discrimination regulations seem to conflict irreconcilably,
for EB5 direct investment companies, investors can look
for advantageous points.
One is the elimination of national origin discrimination
and obtaining INA section 274B protection against
immigration-related discrimination for all immigrants, but
not for non-immigrants. This point has some similarities
with the EB-5 qualifying employee provisions. Therefore,
if you are a non-immigrant worker, you are not covered
under section 274B’s protection against discrimination.
We discussed in the first section of the article that,
except non-immigrants, there are many forms of
status that are work eligible and all satisfy EB-5 direct
investment’s requirement of immigrant status.
After consulting an immigration lawyer, perhaps you do
not need to risk discrimination and limit recruitment to
individuals who are citizens or green card holders. The
ultimate goal of EB-5 investors is to achieve the double
prize of immigrating and establishing a business. While
ensuring that employees are recruited in compliance with
the EB-5 qualifying employee requirement, EB-5 investors
must also take care to avoid other legal problems.
Xiaojie "Marta" Meng
Xiaojie "Marta" Meng is a founding
partner of Song & Meng, PC. She is
admitted to practice law in the state
of California. Meng has extensive
immigration experience serving
a diverse array of clients, including multi-national
corporations, small businesses and individuals from
all walks of life. Committed to public interest, Meng
serves as a volunteer attorney at the SCCLA monthly
pro bono legal clinic. She is a member of the American
Immigration Lawyer Association (AILA). She speaks
fluent Chinese.
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