EB5 Investors Magazine (English Edition) Volume 5, Issue 1 - Page 81

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. EB5INVESTORS.COM 80