Free EB-5 Project Evaluation

What the Appointment of Alejandro Mayorkas as Secretary of DHS Could Mean for the EB-5 Program

What the Appointment of Alejandro Mayorkas as Secretary of DHS Could Mean for the EB - 5 Program

On January 19, 2021, just a day before President Biden’s inauguration, a Senate confirmation hearing was held for Alejandro Mayorkas, Biden’s choice to head the Department of Homeland Security (DHS). The secretary of DHS performs important work in overseeing U.S. immigration policy, and as a residency-by-investment immigration program, the EB-5 Immigrant Investor Program falls under the purview of DHS. That means EB-5 investment stakeholders should keep tabs on the leadership of DHS, as the secretary of DHS can introduce policy changes that impact the popular investment program.

During the confirmation hearing, Senator Josh Hawley (R-MO) blocked the fast-tracked confirmation of the nominee, citing concerns about Mayorkas insufficiently enforcing laws related to border security. Mayorkas is still expected to be confirmed, but the process is now delayed, with Transportation Security Administration Head David Pekoske taking over the role until Mayorkas’s confirmation. As Mayorkas will likely assume the position in due time, it’s worth it for EB5 investment participants and other stakeholders to take a look at his background.

Who Is Alejandro Mayorkas?

Though Mayorkas was born in Havana, Cuba, in 1959, he has spent most of his life in the United States, as his family fled Cuba in 1960 as a result of the communist revolution. Growing up in Los Angeles, he attended law school and served as an assistant U.S. attorney in California’s Central District for a period, successfully prosecuting various white-collar crimes. He then made the jump into a political career in 1989, eventually being appointed in 1998 by President Clinton as U.S. attorney for the Central District of California. In the period before he left office in 2001, Mayorkas managed a number of high-profile cases.

What Did Mayorkas Do in the Obama Administration?

When the Democrats regained power in 2009 following President George W. Bush’s time in office, Mayorkas was once again appointed in an important role: secretary of U.S. Citizenship and Immigration Services (USCIS). He held the position for most of Obama’s first term, leaving in 2013. As head of USCIS, Mayorkas had a chance to work closely with the EB-5 program, and if his historical achievements are anything to go by, EB-5 investment participants should look forward to Mayorkas’s leadership.

When Mayorkas inherited USCIS in 2009, the EB-5 program was in rough shape—“badly broken,” in Mayorkas’s own words. It was devastatingly underused, with a mere 800 foreign nationals making an EB5 investment in 2007, despite the numerous benefits of U.S. permanent resident status. Taking on the task of reviving the EB-5 program, Mayorkas succeeded magnificently, quadrupling the number of EB5 investment participants in just two years. In his final year as head of USCIS, Mayorkas restructured the way that USCIS evaluates I-526 and I-829 petitions, further strengthening the program and paving the way for explosive growth. Indeed, in 2014, for the first time, the EB-5 program issued all the green cards it had been allocated for the fiscal year.

Mayorkas’s time as head of USCIS ended with a promotion to deputy secretary of DHS in December 2013. Like in January 2021, his confirmation as deputy secretary was stalled on the grounds that he had “exerted improper influence” in the approval of a few EB-5 applications, but the resulting investigation found that he had acted within his powers. His appointment was confirmed in 2014, and he worked in various capacities to improve US–Cuba relations and manage the response to Ebola and Zika.

The Future of EB-5 under Mayorkas

What will happen to the EB-5 program under Mayorkas’s leadership is unknown, but Mayorkas’s qualifications are undeniable. Highly experienced and competent, Mayorkas is a solid choice to lead DHS, and his history with the EB-5 program suggests the development may be great news for those involved with EB-5 investments. With extensive—and personal—experience with immigration, Mayorkas is likely to usher in a period of facilitated immigration for EB-5 investors and other newcomers to the United States.