New DHS secretary could mean positive things for EB-5 visas
New administrations – and new cabinet appointments – always bring about a sense of uncertainty as policies and priorities take shape. The swearing in of Alejandro Mayorkas as Department of Homeland Security Secretary in early February is likely to trigger changes to immigration policies and procedures, particularly since this is a priority for the new administration. The former Director of U.S. Citizenship and Immigration Services (USCIS) has extensive experience working with the EB-5 visa program, and it’s likely that his background will help reinvigorate the program, which saw significant drops in processed applications over the last two years.
About Mayorkas
Mayorkas, who came to the United States from Cuba as a child, was appointed to serve as a U.S. attorney in the Central District of California by Pres. Bill Clinton and held that post until 2001. He was appointed as USCIS Director by Pres. Barack Obama in 2009. Mayorkas held that post until 2013, when he was appointed to serve as Deputy Directory of the U.S. Department of Homeland Security. He remained in that post through the remainder of the Obama administration.
During his time at USCIS and DHS, Mayorkas worked on several major immigration initiatives, including Deferred Action for Childhood Arrivals (DACA). While Pres. Joe Biden has not listed immigration as one the top priorities of his early term, Mayorkas has said that with his background and in his role as DHS Secretary, strengthening immigration programs tops his list of priorities.
“I am the secretary of homeland security. I oversee three agencies and thousands – tens of thousands – of individuals who focus on our immigration system and fixing it,” Mayorkas said in a recent interview. “Please rest assured, it’s a priority of mine.”
Mayorkas and the EB-5 visa program
As head of USCIS, Mayorkas was credited with revitalizing the EB-5 visa program, which he described as “badly broken.” In 2007, the EB-5 program received fewer than 800 applications; that changed when the 2008 financial crisis brought about an influx of applications. Within two years, the number of applications rose fourfold, and Mayorkas discovered that the system that was in place was not capable of handling all of the applications in a consistent and efficient manner. Mayorkas took it upon himself to restructure the USCIS process for evaluating EB-5 visas.
“USCIS is an agency that adjudicates cases. That’s what it does. When I had authority and responsibility to fix problems, I fixed problems in the cases the agency handled,” Mayorkas said of his work on the EB-5 visa program. “It is my job to become involved, to learn the problems that an agency confronts, to become involved in those problems, and to fix them, and that’s what I did.”
Mayorkas had a hands-on approach to remedying problems within the EB-5 visa program. As he worked toward his goal of building expertise, professionalism, and transparency into program’s administration, he onboarded staff to the EB-5 team who had a higher level of expertise, he relocated the EB-5 team from California to Washington, D.C., to allow for easier coordination with other government agencies, including SEC and FBI for enforcement, and created the Investor Program Office. He initiated the publication of the first major EB-5 Policy Memo, and he created a Discretion Review Board to address inconsistent adjudications. Mayorkas was known for getting directly involved in applications when problems arose.
“I became involved in a lot of cases because, as I said, the work of the U.S. Citizenship and Immigration Services is casework. And I did my job. And I learned of problems, and I fixed it,” Mayorkas explained.
With Mayorkas’s work to remedy and promote the EB-5 visa program, the program saw a dramatic expansion under his leadership. In 2014, USCIS issued the 10,000 EB-5 visas it is authorized to issue annually for the first time in the history of the program.
The future of the EB-5 program under Mayorkas
Applications for the EB-5 visa dropped significantly in the last few years and more concerning, so did the rate applications have been processed. The department went from processing between 2,000 and 4,000 applications per quarter in 2018 to fewer than 1,000 applications per quarter in 2019 and 2020. The slowdown has resulted in long wait times and ample frustration for investors looking to take advantage of the EB-5 visa program.
LCR Chief Compliance Officer and General Counsel Matt Virkstis worked for the U.S. Senate Judiciary Committee, handling oversight of DHS and sub-agencies such as USCIS, as well as a portfolio of various policies including immigration and the EB-5 visa program. While serving as Committee Counsel, Virkstis assisted in Mayorkas’ confirmation as DHS Deputy Secretary. As someone who is familiar with the work Mayorkas did during his time at USCIS and as Deputy DHS Secretary, Virkstis is optimistic about Mayorkas’s ability to restore the EB-5 visa program’s administration–and all of USCIS’ operations–to previous levels of efficiency and efficacy. Virkstis points to Mayorkas’ efforts in guiding USCIS’ transformation from its role in immigration enforcement as part of the former U.S. Immigration and Naturalization Service to an organization focused primarily on immigration services.
While Mayorkas’s role as DHS Secretary won’t have him digging into the day-to-day administration of programs like the EB-5, there is reason for optimism that his leadership will provide a positive attitude – from the top down – toward the program. Because of Mayorkas’s expertise and prior high-level experience at USCIS and DHS, he is well-equipped to provide insight into and deep understanding of agency policy and regulatory changes. There is also reason for optimism that Mayorkas will have a positive impact on those applying to the EB-5 visa and other immigration programs, given his commitment to professionalism and public service. Mayorkas’ confirmation as DHS Secretary provides reason to hope that the dramatic drop in the number of EB-5 visas being issued will begin making a turnaround in the coming months and make a return to previous levels.
