“Highly Unlikely the Government Will Discontinue the EB-5 Program”: Analyzing Trump’s Gold Card Impact

Mona Shah, Esq.
New York City

Today, the US EB-5 Industry rallied together in a unified defense as the EB-5 program, also known as the Immigrant Investor Program, became the target of  President Trump’s roving eye.

In a move that has sent shockwaves through the niche industry of investment-based immigration, President Donald Trump has announced plans to scrap the EB-5 program and replace it with a “Gold Card.”

This announcement, just two months into his administration, has sparked widespread panic among stakeholders relying on this self-sustaining program that has created thousands of jobs without burdening taxpayers.

The Industry reacted with multiple blog posts, webinars, and more. It is a surprising move, considering that President Trump and his son-in-law have raised capital under the program.

In 2017, Jared Kushner’s sister, Nicole Meyer, appeared and spoke at an EB-5 seminar in Beijing. Across the board, news articles censured Ms. Meyer for flaunting her brother’s close relationship with President Trump.

Will the EB-5 Program Be Discontinued?

It is highly unlikely that the government will discontinue the EB-5 program. The US has a written constitution, after all.

Article I, Section 8 of the US Constitution states that Congress controls Immigration law (and, by extension, the EB-5 program).

The Supreme Court has consistently affirmed Congress’s authority over immigration matters.

Consequently, any decision to discontinue the EB-5 program would necessitate legislative action by Congress rather than unilateral executive action.

President Trump does not have the authority to simply “cancel” the EB-5 program.

In 2022, the EB-5 program was reauthorized (through 2027) under the EB-5 Reform and Integrity Act (RIA). This reauthorization indicates a level of legislative support, making any efforts to eliminate the program through new legislation uncertain, especially in a politically divided Congress.

The United States Citizenship and Immigration Services (USCIS) is responsible for the processing and adjudicating of EB-5 applications, a role that the White House does not directly influence.

While the President can impact immigration enforcement priorities, an attempt to terminate the EB-5 program through executive action would likely face significant legal challenges.

Although the President can propose new immigration policies, only Congress can enact or amend laws. The President’s role in immigration is primarily through enforcement, utilizing agencies such as USCIS, US Immigration and Customs Enforcement (ICE), and US Customs and Border Protection (CBP).

Thus, while the administration can propose changes to the EB-5 program, any attempt to dismantle it would likely encounter immediate judicial scrutiny and require substantial legislative action, not to mention the flurry of subsequent lawsuits.

Is the Gold Card Visa a Game Changer or Just Fool’s Gold?

Perhaps fueled by the success of CBI programs around the world, along with an arrogance that “everyone wants to come to the US,” the Trump administration looks to foreign investors as the key to reducing the US’ ever-burgeoning deficit.

However, while the Trump Administration acknowledges the program’s popularity, it does not fully understand the demographic it appeals to, which is not ultra-wealthy.

Trump will also face opposition in Congress. Since the inception of the regional center program, Congress has been cautious about the perception of “selling” green cards.

Numerous articles and lobbying efforts have highlighted that this is an entrepreneurial program where investors assume risk without guaranteed capital return. It is doubtful that many in Congress, including members of the Republican Party, would support the notion of “selling” US citizenship.

President Trump’s recent announcement seems more strategic than definitive, indicating a desire to reform investment-based immigration rather than abolish it.

As a businessman, many assume that Trump likely appreciates the economic benefits of the EB-5 program and sees an opportunity to create a new visa category aimed at ultra-high-net-worth individuals.

Speculation suggests that the proposed “Gold Card” visa would be a distinct category designed to attract the ultra-wealthy, potentially offering advantages such as exemption from worldwide income taxation. If the government implements it, this concept could coexist with the EB-5 program, providing an alternative pathway for high-net-worth investors.

Rather than dismantling the EB-5 program, Trump’s announcement appears to signal an effort to expand and rebrand investment-based immigration.

His administration might advocate for a dual-track system, preserving the EB-5 program for job creation while introducing a Gold Card visa for the ultra-wealthy.

Unless Congress takes action, which is not likely, the EB-5 program will remain in effect until at least 2027.