As previously discussed this Fall, Inspector General Investigations and whistle-blower driven reviews by Congressional Oversight Committees are very commonplace in Washington, D.C.  The nomination of Alejandro Mayorkas, the current Director of the USCIS at DHS and the presidential nominee to assume the Deputy Secretary position at DHS, now seems to be more complicated than a typical investigation and it does appear to be having an impact on the EB-5 Regional Center Program.  Why?  There seem to be many factors at work here.

One significant factor is the highly charged partisan political environment.  There is a level of suspicion and distrust between the parties and particularly between the Republican Party and the Obama Administration that we just haven’t experienced before.  This has resulted in even more heightened scrutiny of Mr. Mayorkas’ nomination.  Indeed, the Inspector General who is conducting the internal investigation of Mr. Mayorkas is himself under review and is the subject of allegations of favoritism.

The recent change in the Senate confirmation procedures for Administration nominees pushed through by the Democrats – the so-called “nuclear option” – eliminating the filibuster, has also heightened the partisanship on Capitol Hill.

Therefore, Mr. Mayorkas continues to face allegations of misusing and unduly influencing USCIS/DHS in the EB-5 Regional Center visa program.   This was once again underscored in the November 2013 confirmation hearing of Jeh Johnson, President Obama’s nominee to head DHS and the December 11, 2013 second confirmation hearing for Mr. Mayorkas.  During both hearings, the nominees were asked numerous questions about the EB-5 program and Mr. Mayorkas’ role as well as the status of the IG review.   Both nominees have cleared the Senate Committee confirmation process – Mr. Mayorakas on a purely partisan vote.    Both nominees appear headed for full confirmation by the Senate under the newly revised Senate procedures that merely require a majority vote.

It appears that the heightened scrutiny of Mr. Mayorkas has impacted the normal processing of cases at USCIS and has had a negative impact on those cases that have already be approved for expedited processing.   Nonetheless, even with all the hoopla, we believe that the normal procedures should be followed and that the key to a successful and smooth EB-5 process with USCIS is to have a solid case that meets the latest regulatory and advisory guidance.   Please see enclosed link for an article Greenberg Traurig has published on expedite requests.

Whatever the current policy and political motivations maybe surrounding the investigations at USCIS and DHS, the EB-5 community should just push forward.  The investigations will come to an end and there is a lot of good work to do for Regional Centers and projects involved with EB-5 investment and investors.