President Donald Trump has announced a “Gold Card” immigration program, priced at $5 million, which he claims will replace the EB-5 Immigrant Investor Program. This proposal has generated significant discussion within the investment immigration community.
However, can the President unilaterally eliminate EB-5 Immigrant Investor Program? How does the Gold Card compare to EB-5? And what should current and prospective EB-5 investors consider in light of this announcement? Below, we provide a comprehensive legal and policy analysis.
The Trump “Gold Card” Proposal: Key Features
- Investment Requirement: A $5 million direct investment, significantly higher than EB-5’s $1.05 million (standard) or $800,000 (TEA investment) threshold.
- No Job Creation Requirement, at least for now: Unlike EB-5, which mandates the creation of at least 10 full-time jobs, the Gold Card appears to focus solely on capital investment.
- Claimed to Replace EB-5: Trump’s administration suggests this program will replace EB-5 and could be implemented within two weeks.
- Lack of Congressional Approval? The administration asserts the program can be established via executive order, bypassing congressional authorization.
However, these claims raise significant legal and procedural concerns regarding the President’s authority to unilaterally modify U.S. immigration laws.
Legal Analysis: Can Trump Actually Terminate the EB-5 program?
Trump lacks the unilateral authority to terminate the EB-5 program. EB-5 was established by congressional legislation, meaning that only Congress can repeal or replace it.
- Article I, Section 8(4) of the U.S. Constitution grants Congress plenary power over immigration and naturalization. The Supreme Court has repeatedly affirmed that Congress has ultimate authority over U.S. immigration policies.
- The EB-5 Reform and Integrity Act (RIA) of 2022 extended the EB-5 Regional Center Program until September 30, 2027, ensuring the program’s continued legal standing.
- RIA’s grandfathering provisions protect all EB-5 investors who apply before September 30, 2026, guaranteeing their applications will continue to be processed, even if the program is discontinued in the future.
Conclusion: The President cannot unilaterally eliminate EB-5. Any changes to the program would require legislative action by Congress, which faces significant procedural and political challenges.
Trump’s “Gold Card” vs. EB-5: A Comparative Analysis Concerns Regarding the “Gold Card” Program
- Substantially Higher Investment Threshold: At $5 million, the Gold Card requires an investment nearly five times higher than EB-5’s $1.05 million (or $800,000 in TEA areas).
- Lack of Regulatory Framework: The proposal lacks clear guidelines on eligibility, background checks, investment structures, and security measures.
- Uncertain Viability: Many of Trump’s previous immigration policy announcements failed to materialize. Without congressional support, the Gold Card program faces legal and logistical hurdles.
Why EB-5 Remains the More Reliable Option
Legal and Regulatory Stability: The EB-5 program is governed by congressional statute and remains in effect at least through 2027, with grandfathering protections extending until 2026.
- Lower Investment Requirement: EB-5 requires $1.05 million or $800,000 (for TEA investments), making it significantly more accessible.
- Adjustment of Status Advantages: Eligible Investors lawfully present in the U.S. can file I-526E and I-485 concurrently, allowing them to obtain work authorization (EAD) and travel permission (AP) while awaiting approval.
- Well-Defined Path to Permanent Residency: EB-5 includes specific legal requirements, including job creation, ensuring compliance with U.S. immigration policies.
Potential Implications of the “Gold Card” for EB-5 Investors
The EB-5 program continues to operate with no immediate impact on applicants, as it is legally protected under existing law and remains authorized until at least 2027, ensuring stability for both current and prospective investors. Conversely, the so-called "Gold Card" lacks legal standing, presenting a high-risk consideration for investors. The Trump Gold Card proposal faces substantial legal, regulatory, and implementation challenges. Even if introduced, it is more likely to serve as a niche program for ultra-high-net-worth individuals rather than a direct replacement for EB-5.
Trump's immigration policies have historically been subject to significant revisions and legal challenges. In contrast, EB-5 is a legally established and well-regulated program, offering investors a clear and structured path to U.S. permanent residency. Therefore, EB-5 remains the preferred investment immigration option due to its established legal framework and longevity.
For investors seeking a stable and secure pathway to U.S. residency, EB-5 remains the most viable and well-regulated option. Given the current policy landscape, we recommend:
- Filing I-526E applications early to secure a place in the visa queue.
- Utilizing reserved visa categories (rural/high-unemployment/infrastructure) to avoid potential backlogs. (RIA introduced reserved visa categories to potentially mitigate backlogs, allocating 20% of visas to rural projects, 10% to high-unemployment areas, and 2% to infrastructure projects, offering investors in these categories the possibility of benefiting from faster processing times.)(RIA introduced reserved visa categories to potentially mitigate backlogs, allocating 20% of visas to rural projects, 10% to high-unemployment areas, and 2% to infrastructure projects, offering investors in these categories the possibility of benefiting from faster processing times.)
- Ensuring all fund transfers and investment sources meet compliance requirements.
If you have questions regarding EB-5 investment immigration, reserved visa categories, or source of funds compliance, contact the Law Offices of Sabrina Li today. Our experienced immigration attorneys provide the latest legal insights and customized investment immigration strategies to ensure a successful EB-5 application process.
Disclaimer:
The information provided on this blog is for general informational purposes only and does not constitute legal advice. Immigration law is complex and changes frequently. Consult with an attorney at our firm for advice tailored to your specific situation. This blog's content is based on law and facts as of the publication date and may not reflect current developments. We disclaim any liability for reliance on this information.
