By Mona Shah, Esq.
Once upon a time, Congress ratified the EB-5 Reform and Integrity Act of 2022 (“RIA”), which brought to life goodies such as rural set-asides and concurrent filing for I-526 and I-485 petitions to U.S. Citizenship and Immigration Services (“USCIS”). During this period of less-than-cautious optimism, the industry was heartened by developments like the reinvigoration of the regional center (“RC”) initiative—left out in the rain following its expiration in 2021. Indeed, under the auspices of Alejandro Mayorkas, the Secretary of USCIS parent Department of Homeland Security (“DHS”), the future looked bright … to the point where even I predicted that under his guidance, the EB-5 program “will emerge from its chrysalis radically transformed and ready for the coming decade.”
As the adage, however, goes: Looks can be deceiving.
Hope and Glory
The rise and bending-but-not-falling of Mayorkas is a story of faith, hope, and ultimately, failure and disappointment—despite the fact that he successfully surmounted a Republicans-led impeachment bid and does not appear to have lost the support of his fellow Democrats. The first Latino to head DHS and a political refugee from Cuba, Mayorkas seemed like the perfect choice to steer an agency dedicated to protecting the United States while continuing to be a beacon for immigrants seeking a better life.
For one, his record was distinguished, with stints as DHS Deputy Secretary (from 2013 to 2016) and USCIS Director (2009 to 2013) during Barack Obama’s presidency under his belt. At USCIS he earned the respect of many EB-5 practitioners for his efforts to restructure how USCIS evaluated EB-5 petitions, thereby helping to streamline the process. Because he was so hands-on, his enthusiasm was contagious. Practitioners thought he really was going to make a difference.
Failure to Launch
Yet some things were rotten in the state of DHS. Mayorkas was accused of favoritism by allegedly intervening directly to expedite visas for wealthy, well-connected Democrats. In the face of these accusations, he resigned in 2013.
This did not prevent him from ascending to the top role at DHS in 2021 with the blessing of the Senate. But the high expectations—predicated on the hope that Mayorkas would cure USCIS ailments such as illogical adjudications, officious Requests for Evidence (“RFEs”), and unfair Notices of Intent to Deny (“NOIDs”)—that buoyed his upward journey began to deflate practically from the start, with the Republican-versus-Democrat battle over the border crisis taking center stage. Coupled with his cursory attention to the endless backlogs, ridiculous delays, super-high fees, and form-fueled inefficiencies that have plagued USCIS with regard to processing and adjudicating EB-5 visas, Mayorkas’ immigration miscues have made a significant dent in his legacy.
Moreover, the failed impeachment bid damaged a once-solid reputation that, though marred by the alleged-favoritism scandal, still followed a potentially admirable path. It does not matter that Mayorkas came through the ordeal without losing his job. What matters is that things came to that situation.
That is Mayorkas’ fault. To paraphrase Terry Malloy in the classic 1954 movie On the Waterfront: He could have been a contender. He could have been somebody.
Instead, he scored an own goal. Now, not only he, but also his own party, has to deal with the repercussions of his negligence.
Political Ammunition
Sadly, that may have an impact that extends beyond the immigration space. Although Mayorkas does have his supporters in the industry—the American Immigration Lawyers Association (“AILA”), for example, brought forth an open letter criticizing attempts to impeach him—the damage already has been done. Mayorkas’ inefficiency has given Republicans continual ammunition for efforts to remove him from office, even though he has not (at least, according to some experts) done anything illegal to warrant impeachment. As such, Congress may end up wasting a substantial amount of taxpayers’ money if Republicans hold up the proceedings of actual legislative business by trying again and again to impeach Mayorkas … until they get the votes to succeed or a new Republican administration comes in post-elections.
Is either of those scenarios likely to be realized? Maybe the better question is: Is either of those scenarios a potential concern?
The answer, it seems, depends on a mixture of the law, political theater, and the passage of time. Still, Mayorkas’ travails demonstrate one important thing: Though he has not been impeached this round, he is hardly unimpeachable.
To the EB-5 community, that is nothing less than a great disappointment.
Simon Butler contributed to this article.