The American Association of University Professors (AAUP) and several immigrant professionals filed a lawsuit against federal agencies, including the U.S. Department of Homeland Security and the U.S. Department of State, over the legality of President Trump’s Gold Card program.
In their claim filed with the U.S. District Court for the District of Columbia on Feb. 3, they argue that the new visa prioritizes wealth over merit, harming qualified candidates and the U.S. academic community.
“I do not think anyone whose work involves EB-5 is surprised by the fact that litigation has been filed to challenge the way in which the Gold Card Program was developed and the way in which the administration has taken the first steps toward implementation of the Program outside of the legislative context,” said Steven Reingold of Saul Ewing.
Robert Cornish of the Law Offices of Robert V. Cornish Jr. adds:
“This is likely the first of many lawsuits that will address the Gold Card and its compliance with various federal laws and regulations imposing some degree of oversight, at the very least for security purposes,” he said.
President Trump’s Gold Card program allows foreign nationals to enter the U.S. under the EB-1 and EB-2 visa categories if they make a significant financial contribution, $1 million for individuals and $2 million for corporations, to obtain permanent residency. Questions remain about how the gold card process will complement or disrupt the current EB-5 visa investment structure.
Why would the Trump Gold Card be unlawful?
The lawsuit was filed on behalf of the AUAUP; researchers Rodrigo Cerna-Chavez; William Daniel Moscoso-Barrera; Yu-Ting Tsai; Aldo S. Estrada-Montaño; Ma. Elena Hernández Cepeda; and Richmond Djorgbenoo; NGO Democracy Defenders Fund, law firm Colombo & Hurd, and public interest law firm Public Citizen Litigation Group.
The claimants say that those who can pay the new visa application fee will be prioritized over skilled individuals also applying through the EB-1 or EB-2 categories. They also argue that wait times for qualified applicants will increase because of gold visa applications, undermining merit-based petitions.
“The Gold Card, which privileges wealthy immigrants over others, is part of a larger attack on immigrants, research, and higher education,” said AAUP President Todd Wolfson in a press release announcing the filing. “This unlawful program directly harms our members and the public. We stand firmly against it.”
“The Gold Card program attempts to bypass that system by treating wealth as a substitute for statutory eligibility,” says Sarah Wilson of Colombo & Hurd, a federal litigation attorney who is part of the claim’s legal team, in a press release announcing the filing. “In doing so, it harms the scientists, researchers, and professionals who have played by the rules and waited their turn. When visas are capped and backlogged, creating a paid fast lane inevitably pushes qualified people further back.”
The American Immigrant Investor Alliance (AIIA) welcomed the legal challenge, saying it represents a direct circumvention of Congress’s constitutional authority over immigration.
“The complaint correctly identifies that the Gold Card scheme allows applicants to bypass Congress’s specific requirements and safeguards for investment-based immigration, embodied in the statutory EB-5 framework,” Ishaan Khanna, AIIA president, said in an emailed statement to EB5Investors.com. “Instead, obtain permanent residence through a competing, non-statutory alternative that lacks the integrity measures essential to the future of investment migration into this country.”
EB-5 attorneys react to the claim against the Gold Card
EB-5 and litigation attorneys caution that plaintiffs must establish legal standing to support the challenge.
“My biggest question is whether a court will agree that these plaintiffs can demonstrate standing based on their theory that the Gold Card hurts them,” Brad Banias of Banias Law says. “As intending EB1/EB2 applicants, the Gold Card expands the pool of potential applicants for EB1/EB2. Yes, it makes sense that if there are more applicants for EB1/EB2, it will be more competitive, but the supply of EB1/EB2 is a country-specific issue dictated by the visa bulletin, which the complaint acknowledges.”
As an example, he explains that plaintiffs would have to explain how Chinese gold card applicants affect EB-1A petitioners from Colombia.
Reingold is also cautious about the legal basis of the claim. “Most of the individuals who are named as plaintiffs appear to lack standing to assert the claims, given that they have not yet filed for EB-1 or EB-2 visas, and that the [AAUP] does not appear to have sufficiently pled associational standing in order to assert claims that its members may have.”
“I think that everyone believes that the Gold Card program was unlawfully enacted,” adds Tammy Fox-Isicoff of Rifkin & Fox-Isicoff PA. “Congress makes laws, not the President. Nothing about this program was done lawfully, including the application form. The issue is whether the plaintiffs have standing to sue. Most lawyers would advise their clients to stay away from this program.”
Along with Fox-Isicoff, attorney Ronald Klasko of Klasko Immigration Law Partners has also cautioned clients about risks associated with implementing the Gold Card and with litigation.
“I have advised my clients that such a lawsuit was likely,” he says. “I have advised clients interested in a Gold Card that they risk a court ruling invalidating [it], which would result in having to try to get $1 million back from the government and missing the grandfathering date for filing a regional center EB-5 petition.”
The lawsuit requests that the court declare the Gold Card program unlawful, halt its implementation, and cover the attorney’s fees.
The DHS and the other federal departments mentioned in the lawsuit have 60 days to respond to the claim after being notified. The EB-5 attorneys anticipate that the defendants will be represented by the Department of Justice (DOJ) and that the DOJ will file a motion to dismiss (MTD) the claim.
However, Banias also notes that among the claimant’s legal team, there are at least three former federal lawyers of the DOJ’s Office of Immigration Litigation. “If anyone can beat a DOJ MTD, it is them.”
In the event that the D.C. court finds that the plaintiff has standing, Klasko says “there is a good chance that the Gold Card will be found to be unlawful for a number of reasons, including the lack of a statutory amendment passed by Congress, the lack of APA notice and comment regulations and a fee set without following the statutory requirements, among others.”
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