Trump’s “Gold Card” Proposal and the Future of EB-5: What Investors Need to Know

On February 25, 2025, President Donald Trump announced a sweeping proposal to eliminate the EB-5 Immigrant Investor Program and replace it with a “Gold Card” visa that would require a $5 million fee—a sharp contrast to the current EB-5 structure.

The EB-5 program, which has been in place since 1990, currently allows foreign investors to obtain U.S. green cards by investing between $800,000 and $1.05 million in a business that creates at least ten full-time jobs. Such investments are typically returned to the investors over a period of time along with a return on investment. President Trump’s proposed alternative would more than quadruple the investment threshold, seemingly without any possibility for the funds to be returned or to generate income, potentially shutting out a significant portion of potential investors.

In particular, the EB-5 Program has been reauthorized until 2027 by the EB-5 Reform and Integrity Act (RIA) of 2022. But can a president unilaterally dismantle the EB-5 program altogether? And what does this mean for existing and prospective investors? Here’s what history, legal precedent and immigration law suggest.

Can a President Cancel EB-5?

Despite Trump’s campaign promise, he does not have the unilateral authority to eliminate the EB-5 program. There are strong arguments to be found in the U.S. Constitution to support this position.

The U.S. Constitution does not explicitly mention immigration; however, long-standing Supreme Court precedent recognizes that Congress holds “plenary” power over immigration, granting it comprehensive authority to determine the admission and exclusion of foreign nationals. This authority is derived from several constitutional provisions:

1. Naturalization Clause: Article I, Section 8, Clause 4 empowers Congress “To establish an uniform Rule of Naturalization.” While this clause pertains directly to the process by which non-citizens acquire citizenship, it has been interpreted to grant Congress significant control over immigration policies.
2. Foreign Commerce Clause: Article I, Section 8, Clause 3 grants Congress the power to “regulate Commerce with foreign Nations.” This has been cited as a basis for congressional authority over immigration matters in the past.
3. Necessary and Proper Clause: Article I, Section 8, Clause 18 allows Congress to make all laws necessary and proper for executing its enumerated powers, including those related to immigration.

The Supreme Court has affirmed Congress’s comprehensive authority over immigration in cases such as Kleindienst v. Mandel, stating that the Court has “sustained Congress’s ‘plenary power to make rules for the admission of aliens and to exclude those who possess those characteristics which Congress has forbidden.’”

What flows from this is that the president has executive powers over immigration enforcement but cannot disregard the Immigration and Nationality Act (INA). The Constitution requires laws to be faithfully executed, and courts would likely enforce the EB-5 provisions despite any attempt to ignore them. Only Congress can amend the INA.

To end the EB-5 program, the Trump administration would therefore need Congress to pass a bill. In the Senate, 60 votes are required to overcome a filibuster, but Republicans hold only 53 seats, many of whom support EB-5. Without at least seven Democratic votes, legislation to abolish the program is unlikely to succeed.

However, while a president cannot outright abolish the program, an administration could still take steps to significantly disrupt or restrict it.

How an Administration Could Try to Weaken EB-5 Without Repealing It

Although the Trump administration wouldn’t be able to eliminate EB-5 overnight, he could use executive authority to try to make the program less effective. For instance, his administration could theoretically try to do the following:

• Slow Down Processing: By increasing USCIS backlogs or diverting agency resources elsewhere, EB-5 applications could face years of delays.
• Restrict Visa Issuance: President Trump could try to invoke 8 U.S.C. § 1182(f), concerning Suspension of entry or imposition of restrictions by the President to justify suspending or limiting visa approvals for EB-5 investors, as he did with other visa categories during his previous presidency. This section namely reads: “Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”
• Tighten Adjudications: The administration could impose stricter interpretations of the program’s requirements, making it harder for investors to get approvals. Ex: increased scrutiny on source of funds

That being said, such measures, if attempted, would surely face an uphill battle in Court.

Legal and Political Countermeasures to Attacks against the EB-5

If a second Trump administration moves to obstruct the EB-5 Immigrant Investor Program, a range of legal and political countermeasures could be deployed to resist the effort. Given historical precedents and the statutory foundation of EB-5, any attempt to halt adjudications, impose extreme processing slowdowns, or replace the program unilaterally would likely face immediate legal challenges and congressional pushback.

Lawsuits and Injunctions: Using the Courts to Challenge Arbitrary Action

Any significant disruption to EB-5 processing—whether through deliberate adjudication slowdowns or restrictive new rules—would likely trigger lawsuits from investors, regional centers, and business stakeholders. Under the Administrative Procedure Act (APA), agencies must justify major policy changes with reasoned decision-making. 

Invoking the APA, courts have repeatedly struck down immigration policies deemed “arbitrary and capricious“. Plaintiffs could argue that unjustified processing delays or the effective suspension of EB-5 adjudications violate existing statutory obligations under the Immigration and Nationality Act (INA), forcing USCIS to continue accepting and processing petitions.

Judicial Review: Executive Overreach

If the Trump administration seeks to terminate EB-5 through executive action rather than legislation, legal challenges could assert that such a move constitutes improper executive overreach. This argument could be used to prevent a unilateral EB-5 suspension, especially if the administration fails to follow the legally required notice-and-comment process or relies on legally dubious justifications. With EB-5 deeply embedded in federal law, courts would likely scrutinize any effort to sidestep Congress in dismantling or replacing it.

Congressional and Business Pushback: The Power of Economic Interests

Beyond the courts, powerful industry stakeholders—including real estate developers, investment firms, and regional centers—are likely to aggressively lobby against any attempt to weaken or eliminate EB-5. In fact, many of them have already mobilized within days of the announcement. 

The program has long been a critical source of foreign direct investment, particularly in commercial real estate and infrastructure projects. The 2022 fight for EB-5 reauthorization in Congress and on the sidelines in Washington DC demonstrated that bipartisan support exists for the program’s economic benefits, making it difficult for the administration to kill EB-5 outright without significant resistance from lawmakers on both sides of the aisle. Business coalitions would likely work to pressure Congress into blocking regulatory changes, inserting EB-5 protections into must-pass legislation, or even overriding executive actions through new statutory safeguards.

While a future Trump administration could attempt to undermine EB-5 through procedural hurdles, history suggests that legal and political mechanisms exist to counteract such efforts. By leveraging the courts, statutory protections, and economic interests, stakeholders could mount a formidable defense against any move to dismantle the program or replace it with a more restrictive alternative.

Grandfathering Protections for Existing EB-5 Investors

Even if a future administration tries to limit EB-5, existing investors have legal protections thanks to the EB-5 Reform and Integrity Act of 2022 (RIA). This law includes a critical grandfathering provision that protects investors who file their petitions before October 1, 2026. In addition, the RIA makes it clear that the amounts to be invested to qualify for the EB-5 program will not be up for review until 2027.

According to Section 105(c) of the RIA, EB-5 petitions submitted before the program’s expiration date “shall continue” to be adjudicated under the laws and policies in effect at the time of filing.

Additionally, legal precedent supports the idea that the government cannot retroactively change immigration benefits.

This means that investors who have already submitted their I-526 petitions cannot be denied based on future changes.

What Should EB-5 Investors Do Now?

If You’re an Existing EB-5 Applicant:

• Your petition is protected under Section 105(c) of the RIA and your conditions at the time of filing will continue to be honored moving forward.
• Continue moving forward with biometrics, Requests for Evidence (RFEs), and consular processing. 
• Do not miss deadlines, and keep following up with your legal representatives for updates on the situation.

If You’re a Prospective Investor:

• The safest way to secure an EB-5 green card is to file before October 1, 2026, when current protections expire, or even earlier to avoid any unnecessary hurdles that the Trump administration could try to impose.
• Given Trump’s track record of swift immigration policy changes, those interested in EB-5 should act quickly to avoid potential future restrictions.

Bottom Line

Trump’s “Gold Card” proposal is not an immediate threat to EB-5, but it signals a tougher stance on investment immigration. While he cannot unilaterally cancel the program, he could use executive powers to slow processing times, restrict visa issuance, and tighten adjudications. If history is a guide, even under restrictive policies, investors who get in before rule changes eventually secure their green cards. We have certainly seen this in the recent past, when the EB-5 program underwent tumultuous reform attempts between 2019 and 2022.

For current EB-5 applicants, the 2022 RIA law ensures protection against retroactive policy changes. However, for those considering an investment, acting sooner rather than later could be the best strategy to safeguard against future uncertainties.

If you are considering the EB-5, we recommend proceeding swiftly and consulting with professionals to safeguard your immigration path in a structured, efficient way.

FAQ SECTION

For Existing EB-5 Investors

1. What happens to my EB-5 petition if President Trump is successful in eliminating the program?
   Your petition is protected under the RIA’s grandfathering provision, meaning it will still be processed even if the program is modified or replaced.
2. Can USCIS stop processing my I-526 or I-829 due to Trump’s proposal?
   No. USCIS is legally required to process petitions under the rules in place at the time of filing (5 U.S.C. § 706(1), APA; Section 105(c) of the RIA).
3. Can Trump prevent me from getting my green card if I have an approved I-526?
   The President cannot revoke statutory green card eligibility but could slow consular processing or limit visa issuance under 8 U.S.C. § 1182(f). If this happens, litigation would likely follow.
4. Should I be worried about delays?
   Possibly. The administration could increase processing times, but courts have ruled that unreasonable delays can be challenged via a writ of mandamus. Any possible delays will be closely monitored by many professionals. Legal remedies are and will be available.
5. What should I do now?
   • Continue your EB-5 process without delay.
   • Ensure all RFE (Request for Evidence) responses are timely.
   • Monitor visa bulletin updates for changes in visa availability.
   • Keep in touch with your legal counsel.

For Prospective EB-5 Investors

1. Is it too late to start an EB-5 application?
   No, but time is of the essence. The best way to protect your eligibility is to file your I-526 before October 1, 2026, ensuring you are covered under current rules. If you can, even consider doing so earlier to protect against possible attempts by the Trump administration to attack the EB-5 program.
2. Could the investment amount change under Trump?
   Yes, but only if Congress approves a change. His “Gold Card” proposal suggests higher investment thresholds in the future. This would require Congress to get behind the initiative, which could prove challenging in the current political environment.
3. If I start an EB-5 petition now, will I be grandfathered?
   Yes, if you file before October 1, 2026.
4. What risks should I be aware of?
   • Delays in adjudication due to potential agency slowdowns.
   • Additional scrutiny on source of funds and investment structure.
   • Potential visa processing restrictions.
5. What should I do now?
   • Start your application as soon as possible.
   • Work with experienced EB-5 attorneys and advisors to navigate you through any changes and potential headwinds.

Stay informed on policy developments and prepare for possible litigation if adverse policies arise.