Trump’s Desire to Replace the Current EB-5 Program

Yesterday, U.S. President Donald Trump, flanked by Secretary of Commerce Howard Lutnick, declared that “we’re going to be selling a gold card” that will give green card privileges and a route to citizenship. Secretary Lutnick stated that the “Trump Gold Card” would replace the EB-5 program, which Lutnick criticized as “low priced” and problematic. Aside from a proposed Gold Card visa costing $5 million, no substantive information has been released about this proposal.

The president’s statement was unexpected and we are naturally alarmed by this plan, which has the potential to impact the creation of thousands of job-creating enterprises as a result of billions of dollars of foreign direct investment (FDI) via the EB-5 program.

What Trump Said

The president, speaking during a signing ceremony for Executive Orders, announced his proposal for a new “Gold Card” immigration program. The “Gold Card,” as he explained, would open up a new class of Lawful Permanent Resident (LPR) status, offering holders a pathway to U.S. citizenship. Each Gold Card would require a payment of at least $5 million. President Trump claimed that wealthy individuals would be able to purchase the card for themselves, or companies could purchase them for key employees, to benefit the United States.

Secretary Lutnick, standing beside the President, stated that the Gold Card program would replace the existing EB-5 program, which he characterized as rife with “nonsense, make believe, and fraud.” He stated that the Gold Card program would require vetting to ensure applicants are “wonderful world class global citizens” who can invest in America, using the funds to reduce the national deficit.

The Truth about EB-5

While Secretary Lutnick claimed that the President  will abolish the EB-5 program in favor of his Gold Card program, perhaps through an executive order, this is likely impossible.

The EB-5 program was created by Congress, and only Congress may abolish it and/or establish a new immigrant investor program as a replacement. The U.S. Constitution, in Article I, § 8(4), grants Congress the power to establish a “uniform Rule of Naturalization.” The Supreme Court has repeatedly recognized that this clause grants Congress “plenary” power over immigration, which gives it ultimate authority to determine the rules for admitting foreign nationals into the United States. Any presidential action on immigration, therefore, must be based upon the statutes that Congress enacts. On immigration matters, the President cannot take unilateral action that defies the will of Congress. In particular, the EB-5 Regional Center (RC) Program has been reauthorized until 2027 by the EB-5 Reform and Integrity Act (RIA) of 2022. Moreover, EB-5 investors who have invested, or plan to invest, before September 2026 will be protected from future lapses in the EB-5 RC program thanks to the RIA’s grandfathering clause, which AIIA both drafted and successfully lobbied to include in Act’s final text.

Secretary Lutnick’s statement regarding ‘fraud’ in the program is incorrect. The EB-5 program has created tens of thousands of jobs across the United States. Any fraud in the program is minimal, and claims to the contrary are gross exaggerations. A report by the Government Accountability Office (GAO) in 2023 found that less than 1% of EB-5 petitions were fraudulent during the 2021 fiscal year. (In comparison, in the non-EB-5 markets, for example, the Federal Trade Commission received nearly 1 million imposter scam reports and financial losses totaling over $2.3 billion. The Securities and Exchange Commission reported that the median loss amount in 2021 was $3,350,000, with 9% involving losses less than $250,000 and 22% involving losses greater than $9,500,000. However, no one ever calls for banning securities investments despite these losses.) Many projects are underway with funding through the EB-5 program and they would have to scramble to find alternative sources of financing, jeopardizing their construction and leading to job losses. The Administration’s decision to end the EB-5 program will cost billions in FDI and tens of thousands of future jobs — especially among blue collar Americans that the President vowed to support.

While the president possesses certain executive powers regarding immigration enforcement, he cannot ignore entire provisions of the Immigration and Nationality Act (INA). The Constitution requires the president to “take Care that the Laws be faithfully executed.” Even if the administration seeks to ignore the EB-5 provisions of the INA, judicial review will almost certainly compel it to execute them. Only an amendment to the INA, passed by Congress, can accomplish what the Trump administration seeks.

Should the Trump administration actually seek to end the EB-5 program, it would need its Republican allies in Congress to introduce a bill to do so. Such legislation would need to pass both houses of Congress, including the Senate, where standing rules require the invocation of “cloture” to limit debate and advance a bill to a final vote — else, the bill may be “filibustered.” Invoking cloture requires 60 votes, and Senate Republicans (many of them supporters of the EB-5 program) only number 53. Unless the administration can convince at least seven Democratic senators to vote in favor of such a bill (which is unlikely), assuming that all senate Republicans support it, any legislation to abolish and/or replace the EB-5 program will never be passed.

What This Means for Immigrants Considering EB-5 

The announcement does not bode well for the future of the EB-5 program—especially for the continuation of the Regional Center program, which expires on September 30, 2027 and must be reauthorized to continue beyond that. Preserving the EB-5 RC program after that date will now require significant lobbying. AIIA is assessing the politics surrounding the EB-5 program and will respond, accordingly.

In the short term, however, we do not recommend prospective investors rush their EB-5 process due to this announcement. The process of collecting funds, the source of funds documentation and the investment due diligence process are important steps and should be given the adequate time and patience it deserves. 

What This Means for existing EB-5 investors

This is a good time to reaffirm AIIA’s mission: we represent EB-5 investors. We will always defend their interests. AIIA is approaching this new challenge in accordance with our mission. Our advocacy and advice are exclusively tailored to advance the material interests of investors, and not regional centers or any other EB-5 stakeholder. 

To that end, EB-5 investors can be rest assured, for now, that the EB-5 program will remain active. Only Congress can terminate the EB-5 program, or refuse to reauthorize it in 2027. Until then, investors should not worry about the validity of existing investments or LPR status petitions — nor should prospective investors be deterred from the EB-5 process. 

Some investors are worried that the Trump administration will order U.S. Citizenship and Immigration Services (USCIS) — which is an executive branch agency — to reduce or completely pause the processing of EB-5 petitions. This is a valid concern, and, we believe that any such directives may be successfully challenged and enjoined in court, as it would be unlawful. AIIA will be at the forefront of any litigation against USCIS regarding actions adverse to EB-5 investors.

Rest assured, we are prepared to fight for immigrant investors.

AIIA’s Position and Our Response 

AIIA has consulted our legal and government relations experts on strategies to respond. The announcement means that the EB-5 program may begin to attract mainstream press and significant political attention. Our interests will be best served by capitalizing on the attention to garner support for the EB-5 program.

We are a community of immigrant investors dedicated to supporting job-creating projects across the United States via the current EB-5 program. The principle — of granting status to immigrant investors who create jobs — is shared by both the president and proponents of the EB-5 program. Proposals like the “Gold Card” are positive developments, which can coexist with the EB-5 program and maximize job creation for U.S. citizens. We welcome the president’s “Gold Card” proposal, although we reiterate that the EB-5 must be preserved, for its abolition would greatly hurt American workers. 

We are glad that the current presidency is taking a renewed interest in this pathway and we welcome the president’s confirmation of his longstanding support for legal immigration that benefits America by fostering job creation through investment.

AIIA believes that the entire EB-5 community should present a united front in response to the administration. It is crucial for investors, regional centers, and attorneys, among others, to advocate for the program’s benefits and push back against measures to end the program. By working together—through lobbying efforts, public-awareness campaigns, and direct engagement with legislators—we can convince the public of the importance of EB-5 to economic growth, job creation, and infrastructure development for the United States. 

On the topic of working together, we must also recognize that it is hard for various industry stakeholders to truly come together. For example, there is current active litigation regarding the EB-5 program’s sustainment period, in the case of IIUSA v. DHS. The regional center collective’s efforts to elongate the sustainment period, right in the midst of controversy regarding the EB-5 program, may prevent the EB-5 community from collaborating on a response to save the program. 

An update on that lawsuit is expected later this week.

As always, our work would not be possible without the support of the EB-5 investor community and industry stakeholders that put their investors before profits. Please consider donating to AIIA or joining our membership program so we can continue to fight for the rights of immigrant investors.