On Matters Pertaining to EB-5 “Qualifying Employee”8 CFR § 204.6 (e) provides a definition of this term for EB-5 purposes: Qualifying employee means a United States citizen, a lawfully admitted permanent resident, or other immigrant lawfully authorized to be employed in the United States including, but not limited to, a conditional resident, a temporary resident, an asylee, a refugee, or an alien remaining in the United States under suspension of deportation. This definition does not include the alien entrepreneur, the alien entrepreneurs spouse, sons, or daughters, or any nonimmigrant alien. [Underline added.]AILA’s comments to USCIS regarding the Draft EB-5 Policy guidance documentwhich were tendered on the last day for comments (Dec. 9, 2011) include somevery fine points. However, one item in particular which it includes is, in myopinion, grasping at straws and detracts from the organization’s credibility. “15. Page 14, 3: The Memorandum should clarify that a new commercial enterprise is not required to violate 8 CFR §274a in order to meet the requirements of EB-5. Our position paper on this subject, with the warning to employers from the Department of Justice Office of Special Counsel is attached.”The actual OSC position on this issue found in the January 24, 2011, TechnicalAssistance Letter1 found on the OSC website2 does not support the overstated fearand blatant mischaracterization of the fully legally supported EB-5 requirement asa forced violation of IRCA’s employment-related discrimination provisions. Anyresemblance or comparison to unfair documentary practices during theemployment eligibility verification (Form I-9) process ("document abuse")scenario is a blatant but meagerly veiled attempt to include unauthorized aliens asqualifying employees for EB-5 employment creation purposes.1 http://www.justice.gov/crt/about/osc/pdf/publication1s/TAletters/FY2011/138.pdf2 http://www.justice.gov/crt/about/osc/htm/techletters.php
“This letter responds to your letter to the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), dated December 21, 2010. In your letter, you ask whether an employer faces any liability under 8 U.S.C. §1324b if the employer is required by United States Citizenship & Immigration Services (USCIS) to request certain documents from his employees in excess of Form I-9 requirements as evidence that the jobs he is obligated to create as an EB-5 visa holder, have been filled by work-authorized individuals. Please note that OSC cannot provide an advisory opinion on any set of facts involving a particular individual or entity. We can provide, however, some general guidelines regarding the anti-discrimination provision of the Immigration and Nationality Act (INA) enforced by OSC, 8 U.S.C. §1324b, and employer actions under that provision. The anti- discrimination provision prohibits four types of employment-related discrimination: citizenship or immigration status discrimination; national origin discrimination; unfair documentary practices during the employment eligibility verification (Form I-9) process ("document abuse"); and retaliation for filing a charge, assisting in an investigation, or asserting rights under the anti-discrimination provision. With respect to your query, the request for more or different documents violates our statute only if committed with the intent to discriminate based on citizenship status or national origin. 8 U.S.C. §1324b(a)(6). An employer can avoid discriminatory documentary practices by ensuring a consistent approach to employment eligibility verification is taken without regard to an employees citizenship status or national origin. Further, OSC will bring the matter you raise to the attention of USCIS.” [Emphasis added.]8 CFR § 274a.2 pertains to the “verification of identity and employmentauthorization” for purposes of complying with § 274A(b) of the INA [8 U.S.C.§1324b] which in turn deals with “unfair immigration-related employmentpractices”. That very statute contains an exception that covers this scenario.Specifically, INA § 274A(b) [8 U.S.C. §1324b] (a)(2)(C) provides:
(2) Exceptions Paragraph (1) shall not apply to-- (A) a person or other entity that employs three or fewer employees, (B) a persons or entitys discrimination because of an individuals national origin if the discrimination with respect to that person or entity and that individual is covered under section 703 of the Civil Rights Act of 1964 [42 U.S.C. 2000e-2], or (C) discrimination because of citizenship status which is otherwise required in order to comply with 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.* The above reference to the Attorney General may now be read toencompass the Secretary of the Department of Homeland Security (DHS)and U.S. Citizenship and Immigration Services (USCIS) in addition to theAttorney General and designees: including OSC within DOJ’s Civil RightsDivision and OCAHO within EOIR. USCIS and OSC need to be inagreement on this issue. Various references to the Attorney General foundthroughout the INA pre-date the creation of DHS. Some of those referencesare easily assigned to one or the other, some are clearly shared and demand ajoint decision, while still others are open to negotiation or debate. INA § 103[8 § USC 1103] (a)(1) assigns the vast majority of responsibility fordeterminations of benefits under the INA to DHS. The proviso in theaforementioned section places the final call for matters of legalinterpretation within the Executive branch in the hands of the AttorneyGeneral. It is appropriate for the party with primary authority to make adetermination on a matter in the first instance, to make it. The AttorneyGeneral can thereafter rule on any such determination. This is such a case.USCIS has made a determination and OSC as a designee of the AttorneyGeneral needs to weigh in. OSC could raise the issue to the AttorneyGeneral peremptorily or act on its own. OSC cannot shirk its duty by simplypassing-the-buck back to USCIS. If there should be a dispute on this issueOCAHO may have a say as well unless the Attorney General has alreadyruled on the matter.
In the final analysis, USCIS is merely acting within its statutory mandates inassuring that the creditable EB-5 jobs created are for individuals within specificstatutorily defined classes of authorized workers. INA 203(b)(5)(A)(ii) spells outwho may be counted for EB-5 employment creation purposes. The actual statutelimits these full-time jobs to: “United States citizens or aliens lawfully admitted forpermanent residence or other immigrants lawfully authorized to be in the UnitedStates (other than the immigrant and the immigrants spouse, sons, or daughters).”On the other hand, INA § 274A [8 USC §1324a] pertaining to the unlawfulemployment of aliens, specifically (a) Making employment of unauthorized aliensunlawful, includes “(1) In general, [i]t is unlawful for a person or other entity— (A) to hire, or to recruit or refer for a fee, for employment in the United States an alien knowing the alien is an unauthorized alien (as defined in subsection (h)(3) of this section) with respect to such employment, or (B)(i) to hire for employment in the United States an individual without complying with the requirements of subsection (b) of this section or (ii) if the person or entity is an agricultural association, agricultural employer, or farm labor contractor (as defined in section 1802 of title 29), to hire, or to recruit or refer for a fee, for employment in the United States an individual without complying with the requirements of subsection (b) of this section.”So claiming that meeting the EB-5 requirement of only counting certain workauthorized employees is somehow in excess of what all employers must do in thefirst place, is disingenuous. The statutorily mandated EB-5 immigrant visaclassification is not meant to provide immigrant visas to alien investors orentrepreneurs who employ unauthorized workers. It is not terribly difficult to seethat the easiest way for employers to comply with both provisions would be to useE-Verify in the first place.That’s my two-cents!Joseph P. Whalen December 16, 2011