EB5 Investors Magazine (English Edition) Volume 5, Issue 1 | Page 77

" 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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