In a significant move to attract wealthy investors, President Donald Trump has floated a new immigration initiative known as the "Gold Card." The initial announcement indicates that the Gold Card will make the EB-5 investment thresholds higher, require more vetting of eligible investors, and offer a pathway to citizenship.
What is the Gold Card?
Details are still very scarce, but the Gold Card would offer wealthy foreign investors permanent residency and a pathway to citizenship for an investment of $5 million. This initiative is set to replace the EB-5 visa, which also offers a pathway to permanent residency, but for a smaller investment of $1.05 million or $800,000 for targeted employment areas. It is unclear if the Gold Card will have a job creation requirement.
Background
The EB-5 visa program, established in 1990, was intended to stimulate the U.S. economy through job creation and capital investment by foreign investors. However, the Trump Administration has criticized it for being prone to fraud and not effectively serving its purpose. Trump's announcement implied that by raising the investment threshold and implementing stricter vetting processes, the Gold Card will attract higher-quality investors and reduce instances of fraud. Commerce Secretary Howard Lutnick said the Gold Card would replace the current EB-5 program for foreign investors, but offered few details.
In 2022, Congress reauthorized the EB-5 program through Sept. 30, 2027, with the passage of the EB-5 Reform and Integrity Act (RIA), with grandfathering provisions protecting investors who file EB-5 petitions before September 30, 2026. Investors filed under RIA are safeguarded from future modifications, regardless of subsequent changes. This legislation was enacted to improve the integrity, oversight, and stability of the EB-5 program after years of fraud concerns, program lapses, and uncertainty. The RIA introduced significant changes, including stricter compliance requirements for regional centers, increased transparency, new investor protections, and stricter rules for fund tracking and reporting.
President Trump referred to abuse and fraud in the existing program when announcing the Gold Card, but did not mention all of the improvements and enhanced security introduced by the RIA. We're going to be putting a price on that card of about $5 million, and that's going to give you green card privileges, plus," the president stated. It is unclear what the "plus" refers to.
The current EB-5 Program remains fully authorized through the September 30, 2027 date.
Does the President Have the Authority to Terminate the Program?
The President does not have the authority to ignore or override an act of Congress, including the Immigration and Nationality Act (INA). Only Congress is given the authority to pass immigration laws that control admission, exclusion, and naturalization. This power is based on the Constitution's Article 1, Section 8, Clause 18, which gives Congress the power to make laws that are necessary and proper to carry out the Constitution's power. Likewise, the Supreme Court has ruled that Congress has "plenary" power over immigration, meaning it hold exclusive authority over the passage of immigration laws.
The President does not have authority to strike down an act of Congress, including the existing EB-5 program. Likewise, Congress has exclusive control over the allocation of employment-based green card numbers and any changes would need to be done by amending the INA. The President can propose new immigration legislation, but only Congress can make new laws and amend existing laws. The President also has the authority to enforce immigration laws through agencies that oversee immigration, including U.S. Citizenship & Immigration Services (USCIS). Any attempt to strike down the EB-5 program will certainly be met with immediate litigation, seeking to enjoin and strike down any such proposal.
The EB-5 community collaborated closely with Congress and USCIS to restore integrity and stability to the program after years of challenges that damaged its reputation. Just as the industry had regained its footing, news of a sudden revamp of the program—without notice—came as a shock, particularly to regional centers that have invested significant time and resources to improve themselves post RIA. This abrupt change has also left industry participants and investors in limbo, especially those who have already filed for green cards and have been waiting in line for years, uncertain about how these changes will impact their immigration prospects. .
What is Next?
While President Trump offered few details on process to change the EB-5 program to the Gold Card, including whether the update will originate from an Executive Order or a new regulation, the Administration confirmed that more information will be released in the next two weeks. It is hoped that they will continue to operate alongside any newly established program, fostering economic growth driven by the billions of dollars invested in the United States through EB-5
Conclusion
The Gold Card may be introducing a new option for attracting wealthy investors to the U.S. However, Seyfarth anticipates swift legal challenges if the program offers such a pathway to citizenship without proper legislative approval. While these developments add uncertainty for prospective investors, current EB-5 participants are grandfathered in and remain unaffected. For now, the EB-5 program continues to operate as usual. Seyfarth will monitor for all new developments.
Originally Published by 28 February 2025
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
