EB5 Investors Magazine (English Edition) Volume 5, Issue 1 - Page 78

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 77 EB5 INVESTORS M AGAZINE