President Donald Trump’s recently launched Gold Card initiative has generated interest among foreign nationals, immigration attorneys say, even though many details are uncertain and wealthy applicants face pros and cons in pursuing this path to the United States.
The Trump administration created the Gold Card to allow foreign nationals to purchase legal status in the United States for $1 million, and the portal for applications went online on Dec. 10.
Steven Reingold, a trial attorney with law firm Saul Ewing, said the Green Card substantively appears to be an alternative to the EB-5 visa, which grants foreign investors permanent residency in the United States if they agree to invest high-level capital into a U.S. commercial enterprise that creates or preserves jobs.
One key difference between the two, however, is the Gold Card isn’t a job creation initiative and is essentially a $1 million gift to the United States, while the EB-5 payment requires an $800,000 minimum investment in a U.S. business, although the federal government extracts some of that money for fees.
Rohit Kapuria, a Chicago-based attorney who has worked with clients who have sought EB-5 visas at Saul Ewing, said he expects “some level of competitiveness” between the EB-5 and the Gold Card initiatives but the fate of those funds is one of the key differences.
A foreign national has an opportunity to recoup the EB-5 investment if it was a good bet. “In the Gold Card program, it’s a straight-up gift to the United States,” Kapuria said. “You’re not going to see it again.”
At the same time, Kapuria said, the Gold Card has a provision that looks like “some sort of fast track” that might make that a more attractive option.
Another difference, Kapuria said, is the EB-5 initiative allows for derivative applicants, which means a spouse or children could come in with the same investment, but the Gold Card means $1 million per person.
“So if you have a family of four, that’s $4 million,” Kapuria said. “So that’s a gatekeeping issue, probably for a lot of investors.”
Kapuria said he also expects the Gold Card to pull applicants from the EB-2 visa, which is the vehicle for highly skilled individuals with advanced degrees to enter the United States. The EB-2 program is currently experiencing a backlog from applicants in China and India, he said.
The legal framework for the Gold Card is rooted in existing immigrant categories under the EB-1A and EB-2 NIW visas, which are available for foreign applicants with top skills and advanced degrees and require applicants to demonstrate exceptional abilities that they can contribute to the United States.
George Fishman, senior legal fellow at the Center for Immigration Studies, said he could envision a scenario in which the judiciary would overturn the Gold Card as unlawful, even though the initiative as launched is based on requirements for EB-2 visas established by statute.
“Is the administration going to be able to convince a federal judge that simply writing a check for a million dollars satisfies the statutory requirements of international claim for your achievements?” Fishman said. “I think that that’s going to be a vulnerability in court in a lawsuit.”
Fishman said a potential plaintiff who would have the legal right to file such a lawsuit is an “open question,” but he speculated that foreign nationals who applied for an EB-2 visa but were unable to immigrate to the United States because of numerical caps would “have standing to sue because they would be negatively impacted personally by this.”
Reingold said the Gold Card initiative has “quite a number of kinks to work out,” including congressional authorization and the regulatory process.
A spokesperson for the Department of Homeland Security referred a request for comment on inquiries related to the Gold Card to the Commerce Department, which didn’t respond to a request to comment.
The post Trump Gold Card creates interest, decisions for foreign nationals appeared first on Roll Call.
