The Tug of War
Between the Hill
and the Agency
A Review of the
OIG Report and the
Potential Impact on
the EB-5 Regional
Center Program
by Laura Foote Reiff
The Office of the Inspector General (OIG) for
the Department of Homeland Security recently
released a long-awaited report analyzing the
United States Citizenship and Immigration
Services’s administration of the EB-5 Regional
Center program1. Although dated Dec. 12, 2013,
lawmakers received a copy of the report during
the week of former USCIS Director Alejandro
Mayorkas’s confirmation as deputy secretary of
the Department of Homeland Security, which
took place on Dec. 20. The release of the report
was yet another controversy in a contentious
confirmation process that has scrutinized
Mayorkas for evidence of favoritism and misuse
of the EB-5 program, for which he is the subject
of a separate, ongoing Inspector General
investigation. In light of these allegations and
Republican opposition, Mayorkas’s confirmation
would have proved much more difficult if the
Senate Majority Leader had not invoked the
“nuclear option” in November 2013, rendering
more difficult the ability to block certain
nominations through confirmation process.
The Dec. 12 audit, although expected by some
to be a harsher rebuke of Mayorkas, looks at
the EB-5 Regional Center program holistically
and contains four specific recommendations, of
which USCIS concurred with three.
http://www.oig.dhs.gov/assets/Mgmt/2014/OIG_14-19_Dec13.pdf
Trust but Verify: A Legislative Perspective on the EB-5 Regional Center
Program Based On Current Legislative Proposals and Judiciary Committee
Action, By: Laura Foote Reiff – Greenberg Traurig, LLP.
The Fall 2013 issue of this magazine published an article
looking ahead to legislation and policy changes anticipated
in the EB-5 program2. The OIG report contemplated many
of the predictions found in that analysis, through regulation,
guidance, and legislation.
The newly released OIG report makes
four specific recommendations:
The first recommendation calls upon USCIS to update
and clarify existing regulations to better reflect USCIS’s role
in verifying and overseeing the program by giving the agency
the power to deny or terminate regional centers on the basis
of fraud or national security concerns, and to verify that funds
invested went to companies creating U.S. jobs. Additionally,
such regulations would ensure that the agency is applying EB-5
requirements consistently to all cases.
The second recommendation asks USCIS to make connections with the Departments of Labor and Commerce, and the
SEC to “develop memoranda of understanding” to share best
practices when adjudicating EB-5 applications and petitions.
The third recommendation asks USCIS to measure the program’s outcomes by determining “how EB-5 funds have actually
stimulated growth in the U.S. economy,” working in concert
with other agencies, if necessary.
The fourth and final recommendation
encourages USCIS to take steps to ensure
the quality and integrity of the program
and to scrutinize regional centers’ compliance with CFR requirements.
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Laura Foote Reiff
E B 5 I n v e s to r s M ag a z i n e
USCIS issued a response to the report
stating their commiseration with three
of the above recommendations, agreeing
to update regulations, build interagency
collaboration, and establish quality