The Trump administration’s $1 million Gold Card residency program is live, accepting applications, and — according to the Department of Homeland Security (DHS)— poses no threat to traditional EB-1 and EB-2 visa applicants. But with only one approval issued, two lawsuits filed, and congressional authorization still absent, the program’s legal footing remains contested.
“The Gold Card, a visa program overseen by the Secretary of Commerce, will facilitate the entry of aliens who have demonstrated their ability and desire to advance the interests of the United States by voluntarily providing a significant financial gift to the nation,” United States Citizenship and Immigration Services (USCIS) said to Eb5 Investors Magazine.
By the numbers: A program still finding its footing
Commerce Secretary Howard Lutnick told Congress in late April that just one applicant had been approved despite hundreds pending, citing the administration’s thorough vetting process. Days later, DHS moved to dismiss the first lawsuit filed against the program, revealing in court filings that the Gold Card has been available since Dec. 10, 2025, and has received more than 300 applications.
According to a statement in the motion filed by DHS, the Acting Associate Director of the Service Center Operations Directorate at the USCIS, Cara Selby, the agency has received 338 Gold Card requests, processed 165 after the filing fee was paid, and issued 59 Form I-140G (created for the Gold Card) petitions for review. From December 2025 through February 2026, immigration officers also spent just 141.5 hours reviewing Gold Card applications — compared with more than 55,000 hours on traditional EB-1 and EB-2 applications during the same period.
“The Gold Card program has had no impact on Form I-140 EB-1 and EB-2 processing times,” Selby concluded.
How the Gold Card actually works
The Gold Card offers a path to permanent residency under existing EB-1 and EB-2 visa categories — using current visa allocations rather than creating new ones. The cost is $1 million for individuals or $2 million for corporations, plus a $15,000 application fee for EB-1A or EB-2 National Interest Waiver classification.
DHS argued in court that the donation itself serves as evidence of extraordinary ability — the standard required for EB-1A classification. However, the department cautioned that the expedited application process does not guarantee faster adjudication, noting that “Gold Card applicants will not necessarily have their petitions adjudicated faster than any non-Gold-Card applicant, subject to the preference category and per-country limitations applicable to all applicants.”
First lawsuit: No standing, government says
The lawsuit DHS is seeking to dismiss was filed Feb. 3, 2026, by the American Association of University Professors and several immigrant professionals in the U.S. District Court in Washington, D.C. The plaintiffs argue the Gold Card disadvantages skilled workers already in the EB-1 and EB-2 pipeline by allowing wealthy applicants to move ahead — potentially increasing wait times for merit-based applications.
DHS pushed back, arguing the plaintiffs cannot demonstrate concrete harm. The government pointed to approximately 53,000 visas available in the EB-1 and EB-2 categories for fiscal year 2026 and noted that both categories are currently “current” for all countries except China and India.
“That means there are currently more than enough EB-1 and EB-2 visas available to meet demand for applicants (other than applicants from China or India). Accordingly, opening eligibility to Gold Card applicants will cause no ‘displacement’ for Plaintiffs,” the filing states.
Sarah Wilson of Colombo & Hurd, a federal litigation attorney representing the plaintiffs, pushed back on that framing.
“The government argues the court should dismiss the case because it has issued only one Gold Card, while hundreds of applicants remain in line waiting for the program to catch up with its public announcements,” Wilson said to Eb5 Investors Magazine. “We are optimistic that the court will see through the government’s gamesmanship and find that it has jurisdiction to review the lawfulness of the program.”
The core legal question: Did Congress need to act?
Beyond the standing question lies a more fundamental challenge — whether the Gold Card program was created lawfully in the first place. Under U.S. law, creating new visa categories or altering existing pathways typically requires an act of Congress. The Gold Card was established by executive order.
Wilson acknowledged the legal contradiction directly.
“We agree that this is contrary to the statute and that in order to do this lawfully, Congress would need to act,” she said. “I would say the program is probably operational when it is possible to apply.”
In response to DHS’s argument that the $1 million gift qualifies as evidence of extraordinary ability, Wilson was equally direct.
“It appears that they are using the gift as evidence of extraordinary ability or that their presence in the U.S. is in the national interest,” she said. “We agree that this creates a new category, should have been done by Congress, and at a minimum should be reflected in the policy manual and regulations.”
Immigration attorneys: Skeptical of government’s claims
Outside attorneys who reviewed the government’s filings expressed doubt about DHS’s position — particularly regarding the impact on visa numbers.
“While the harm is obvious — USCIS is taking visa numbers from the Plaintiffs — I don’t know how a plaintiff can show that their visa number was or will be taken by a Gold Card,” said Brad Banias of Banias Law. “Even if USCIS uses their full inventory of EB-1s (which is far from certain), USCIS usually runs out of visas in late August or September, and the inventory is replenished Oct. 1. I think that would change if thousands and thousands of Gold Cards were issued, but I don’t think that has happened or is likely to happen.”
Joey Barnett of WR Immigration noted that the government’s own data undermined the administration’s earlier enthusiasm for the program.
“DHS provided data about EB-1 and EB-2 visa use and demand to argue that the plaintiffs do not have standing to sue because they would not be harmed by Gold Card visa applicants with later priority dates,” Barnett said. “However, this data showed that demand for the Gold Card is nowhere close to the claims made by the Trump administration regarding this untested and possibly legally deficient green card pathway.”
A second lawsuit — a Freedom of Information Act case filed by the Democracy Defenders Fund — was filed in mid-April. USCIS declined to comment on ongoing litigation.
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