EB-5 professionals are once again expressing caution regarding the updates made to President Trump’s Gold Card initiative and its potential impact on existing immigration pathways to U.S. residency, such as the EB-5 visa. The new visa program requires congressional approval to operate, despite an executive order having been issued.
Across the industry, attorneys are closely analyzing the potential legal, operational, and commercial implications of this proposed program, while emphasizing the benefits and prevalence of the EB-5 visa program.
The Gold Card’s effect on EB-5
Some lawyers are focused on how the investment point and positioning of the new Gold Card scheme could shift potential investor behavior from EB-5.
Matthew Kolodziej from JIA Law Group notes that the proposed contribution level effectively sits between EB-5’s two investment tiers: “The investment amount for Gold Card applications sits between the two existing EB-5 thresholds ($800,000 for targeted employment area projects and $1,050,000 million for non-regional center investments), which may create a new pathway for high-net-worth foreign nationals seeking to enter the U.S.”
Others caution that the administration’s framing could place the programs in direct competition.
“While we welcome the President’s continued interest in legal immigration, we are troubled that his executive order to lower the gold card amount from $5 million to $1 million puts this program in direct competition with a longstanding program that currently works and has immigrants already in line–the EB-5 immigration by investment program,” says Yiran Cheng, Head of Communications at the American Immigrant Investor Alliance (AIIA).
Cheng notes a shift from private investment with potential returns to direct government revenue from immigrant capital, showing the administration’s preference for direct management of these funds. “Potentially positioning the Gold Card as a replacement for EB-5 should Congress choose not to extend the program beyond its 2027 expiration.”
With the EB-5 program itself currently extended until Sept. 30, 2027, via the EB-5 Reform and Integrity Act of 2022, any change to the program’s status would require congressional action.
Pros and cons of the EB-5 visa and Gold Card programs
Others counter that coexistence is possible if the programs remain distinct in purpose and process. Darren Silver from Darren Silver & Associates, LLP,emphasizes the difference between investment and donation models.
“It appears to me that the new Gold Card or Platinum Card does not in any way restrict or terminate the EB-5 program,” he said. “The Gold Card program can easily run in parallel with the EB-5 program as they are certainly distinctive in nature.”
Silver added: “The Trump Gold Card is a proclaimed ‘Gift’ to the U.S Government.”
However, he questions some of the wording in the executive order, which creates ambiguity. “The most intriguing part [..] is section (f) ‘Consider expanding the Gold Card program to visa applicants under 8 U.S.C. 1153(b)(5)’. U.S.C. 1153(b)(5) is the EB-5 requirement. What does this mean? It is not clear. But it does appear that the Gold Card would somehow be integrated into the current EB-5 Program in some way.”
However, other EB-5 attorneys and advocates underscore the stakes for investors. Some practitioners also urge investors to closely examine visa number usage and family expenses.
“We don’t have too many of the details, but any family would certainly be better off right now with EB-5, as the Gold card requires $1 million per person,” says Tammy Fox-Isicoff from Rifkin & Fox-Isicoff PA.
Trump Card and changes to the EB-5 visa program require law
There is consensus that any modifications to either visa program require Congress’s intervention.
“The President has no authority to change the law,” said Charles Kuck from Kuck Baxter. “Until Congress changes the law, there is no Gold Card. But what he laid out appeared to be the very definition of bribery or extortion.”
Kolodziej emphasizes the need for legislation: “The Gold Card visa proclamation may not have a strong legal basis and could be invalidated by the courts. New visa types must be approved by legislation in Congress.”
How would the Gold Card work?
Although the U.S. government has updated the Gold Card program compared to its original version announced in February and clarified its similarities to the current options, EB-1A and EB-2, the details on how this visa will be issued remain unclear.
Kolodziej interprets the executive order as establishing a framework where contributions serve as evidence within existing categories. “While the official language does not specify which category Gold Card applications will be processed under, we do not yet know how USCIS will categorize them in practice.”
Klasko Immigration said in a note to clients that the initiative is more of a reinterpretation of what’s available rather than a new visa category. “The Trump Gold Card is not a new visa; rather, it is a new pathway to qualify for two existing employment-based green card categories.”
However, the EB-5 lawyers warn that if numbers are drawn from the EB-1 or EB-2 visa program, backlogs could increase. According to Fox-Isicoff. “Expect to see more backlogs in these areas, especially for Chinese and Indians.”
Silver added: “This opens up a whole new list of questions, such as will we see a significant retrogression in the EB1 category now?”
Operational readiness is another concern, especially around payment intake and security. Silver questions the safety of submitting sensitive documents and managing payments of $1 million or the Corporate or Premium options through a website.
“I would imagine that the government will need to establish an application process with specific guidelines and forms in place,” he said.
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