President Trump announced on Tuesday, February 25, 2025, that he intends to offer within two weeks a “Gold Card” giving applicants green card privileges and a path to US citizenship at a price of $5 Million. Commerce Secretary, Howard Lutnick, not President Trump, further stated that the “Trump Gold Card” would replace the EB-5 program which he described as a non-lucrative and high fraud program.
EB- 5 regional centers and their existing and/or prospective investors are alarmed by these statements. Hence, it is important to understand the limitations the current Administration is facing with any attempt to end or replace the EB-5 program.
What Did the Administration State?
First, President Trump did not state that he would replace the EB-5 program while introducing his intent to offer a Gold Card. In fact, several hours after his statement and while meeting with cabinet members, he and Secretary Lutnick provided more details. Lutnick stated that he would “modify” the EB-5 program with the DHS Secretary, thus emphasizing the need to overhaul the program.
As of today, there is no statement to abolish the EB-5 program or replace it.
Who Has the Authority to Terminate or Amend the EB-5 Program?
The EB-5 program was renewed by Congress in 2022 through a law known as the EB-5 Reform and Integrity Act of 2022 (RIA). This program was extended until September 30, 2027. Only Congress can terminate, modify, and/or extend the EB-5 program by passing a new law. The Executive Branch (President Trump and his Government Agencies) do not have the power to pass law, hence abolish and/or amend the program. Should Trump issue an Executive Order abolishing the program, immediate lawsuits will be filed by leaders within the EB-5 community, and will most likely succeed starting with the Federal Courts blocking the Executive Order from being enforced. The U.S Constitution, in article I, Par. 8(4), grants Congress the power to establish a “uniform Rule of Naturalization.” The Supreme Court has consistently concluded that Congress has complete power over immigration and ultimate authority, not the Executive Branch, to determine rules for admitting foreign nationals to the US. The President must act on the basis of the law, not make or amend laws.
For the Trump Administration to succeed in terminating the program it must introduce a bill in Congress which must be passed by both houses, including the Senate. For a bill to pass at Senate without debate and advance to a final vote, there must be 60 votes while there are 53 Republican senators, some of them being pro-EB-5. Hence, such a bill is unlikely to pass.
Which EB-5 Investors Are Protected from any EB-5 Law Changes?
The most important Section of the RIA is the grandfathering clause which unequivocally states that any EB-5 investor who has or will invest before September 30, 2026 (one year before the expiration of the EB-5 program) is grandfathered, meaning that the investor is protected from any lapses and/or changes from the program. It is critical that any prospective investor contemplating the EB-5 program makes his/her investment before that date. Investors who will invest after September 30, 2026 will not be protected and at risk with any changes to the program.
Pre-RIA investors whose process has not been completed are similarly grandfathered by a similar provision.
Can the Trump Administration Use its RIA Mandate to Adjust the EB-5 Capital and Raise the Capital to the Desired $5 Million?
In line with the above, although the RIA mandates the DHS to adjust the EB-5 minimum investment amounts every 5 years starting January 1, 2027, it can only do so based on the cumulative annual percentage change in the Consumer Price Index for All Urban Consumer (CPI-U) reported by the Bureau of Labor Statistics. Hence any attempt by the Administration to increase the amount to $5 Million is not an option.
Can the Trump Administration Stall the Program by Delaying Applications?
The DHS USCIS, adjudicating agency of the EB-5 application, and the DOS, adjudicating agency of the immigrant visa applications abroad, are under President Trump’s control. He has control of immigration enforcement. However, he cannot ignore the immigration laws. The Constitution requires him to ensure the laws are faithfully executed.
Should the DHS and/or DOS adjudicate the applications with unreasonable delays, mandamus lawsuits are expected to be filed with great success, like they have had in the past. The immigration law provides that the agency must adjudicate applications within a “reasonable amount of time” which has been defined by the Federal Courts as being “months, not years.”
Should EB-5 Investors Rush to Invest and File Their EB-5 Applications?
It is the undersigned’s opinion that any prospective EB-5 investor does not compromise the choice of a suitable regional center and the quality of the documentation over the timing of the investment and filing of the application with the USCIS. However, the sooner, the better.
Stay tuned…
