Comment: Fire Jaddou Impeach Mayorkas

Table of Contents

(1) Wait 7 years for Congress, and then wait more years for USCIS?
(2) USCIS’s track record establishes that USCIS cannot be believed on processing times
(3) Failure by USCIS to give a short and specific timeline for I-956 adjudication - is it Incompetence or Malice?
(4) USCIS Director Jaddou and/or DHS Secretary Mayorkas - Fire or Impeach?
(5) Tis time to stand up and be counted 

(1) Wait 7 years for Congress, and then wait more years for USCIS?

The EB5 industry has spent the last 7 years fighting among its various factions, negotiating with both sides of the aisle (especially Sen. Grassley) and Congress has finally given it a 5 year lease of life, with many important amendments ultimately leaving no one especially pleased with the result (a sign of a good compromise). The EB5 industry is in no mood to wait for another 7 years for USCIS delay. The total RC lapse+pause, Congressionally mandated, amounts to nearly a year (July 2021 through May 2022). USCIS’s threatened redesignation procedure promises to suspend the industry for several more years. USCIS wants to cut off the industry’s revenues, investments, activities and hopes, for years and years, unlawfully defeating Congress’s mandate to give the RC program a 5 year lease of life. Folks in the EB5 industry are furious, and the industry is united against USCIS (unlike the last 7 years when the various industry factions fought tooth and nail over various Congressional drafts) - and the reason therefor is quite simple: the EB5 industry faces imminent near-extinction due to USCIS’s redesignation process.

(2) USCIS’s track record establishes that USCIS cannot be believed on processing times

USCIS took an average of 2 to 3 years to adjudicate I-924 applications, it stands to reason that USCIS will take at least 3 years to adjudicate I-956s, since the I-956 will undoubtedly be more complicated than the I-924. In fact, USCIS shamelessly stated on its website that I-924 processing times are between 5 to 10 years(!!), it recently deleted this information. Nor are such unreasonably protracted processing times unusual, USCIS is the embodiment of incompetence, inefficiency and sloth. That is why the EB5 industry wants the language from the EB5 Reform Act: “[an RC] which has been designated by the Secretary of Homeland Security on the basis of a proposal” to be interpreted to mean through an attestation process. The EB5 industry will accept anything other than USCIS adjudication, such adjudication will inevitably impose a several years-long moratorium on the EB5 industry sure to kill most of its participants.

(3) Failure by USCIS to give a short and specific timeline for I-956 adjudication - is it Incompetence or Malice?

It is said that one should never ascribe to malice that which can be explained by incompetence. USCIS’s failure, in the April 29 questions and answers, to give a short and specific timeline for I-956 adjudication, could be both: USCIS is manifestly incompetent to adjudicate hundreds of RC redesignations in less than 3 years, and maliciously wants to keep this information under wraps, so that it can kill EB5 quietly, and hope no one in Congress notices. USCIS's enduring and monumental sloth, inefficiency and incompetence unlawfully defeat the purpose of the EB5 program hurting the American economy, American workers, and American enterprises relying on EB5 capital, along with prospective EB5 immigrant families.

(4) USCIS Director Jaddou and/or DHS Secretary Mayorkas - Fire or Impeach?

There are two ways out of the industry’s morass - one through the courts, and one through the political system - working on both prongs at the same time increases the chances of eventual success. Our previous email offered some food for thought on the legal front, and we now turn to the political system. The key thing to bear in mind is that aiming high works, and aiming low fails. With that in mind, the EB5 industry may want to consider asking the Biden Administration for the dismissal of USCIS Director Jaddou or DHS Secretary Mayorkas or both. The grounds for dismissal are straightforward: Ms. Jaddou and Mr. Mayorkas have failed to supervise IPO effectively, and are thereby (i) jeopardizing American jobs, American workers and American enterprises; and (ii) acting in an anti-immigrant manner by denying immigrant families the chance to obtain lawful immigration benefits through RCs; and (iii) are unlawfully thumbing their noses at Congress by administratively negating the EB5 Reform Act’s 5 year renewal of the RC program. [Note: It is no secret that House Republicans plan, should they capture the majority in January 2023, to impeach Secretary Mayorkas (if impeachment occurs, it would be only the second time in American history for a cabinet member). Adding a count of impeachment of being anti-immigrant would offer strategic advantages to the Republican party, and may even bring a Democrat or two on board, making the impeachment bipartisan (and should Mr. Mayorkas prove difficult to impeach, Ms. Jaddou is an easier target, from House Republicans’ point of view).] 

(5) Tis time to stand up and be counted 

The survival of much of the EB5 Industry and the future of their past investors and future investors is at stake. If a RC sits on its hands at this time and does nothing for its past investors, this will likely cause future prospective investors to hesitate committing themselves to such a RC (ditto for lawyers, future clients may well want to know what advocacy actions by counsel were taken at this time of dire need). Two things are necessary for an effective PR campaign: a clear and strong message, and a good outreach strategy. The message couldn't be clearer: Fire or Impeach Ms. Jaddou and/or Mr. Mayorkas; as to outreach, here are some things to consider doing:

  1. Reach out to your contacts within Congress and inform them that USCIS is not implementing what was enacted, request a public statement from your Congressional contacts supporting the EB5 Reform Act and its efficient implementation.
  2. Reach out to your state’s elected officials - Governors, Mayors, State Senators/Assemblypersons - and ask them to issue a public statement criticizing USCIS on de-designation.
  3. Reach out to all media outlets you have access to - raising the idea of dismissal/impeachment is more likely to get press coverage.
  4. Above all, reach out to members of the House and Senate Judiciary Committees - they were the ones most involved in enacting the EB5 Reform Act, and would be the ones most concerned about impeachment - they also are the ones most in touch with USCIS’s legislative liaison office - ask them to make dismissal/impeachment un-necessary by persuading USCIS to permit attestations instead of adjudication.

What is at stake is American jobs created for American workers by American enterprises, by providing immigrant families with lawful immigration benefits. Please act now.

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