gotchanewsdaily.com 
CNN
—
The Oval Office announcement caught many immigration experts by surprise.
Last week the president known for touting his mass deportation plans floated a new way he wants to draw wealthy foreigners to the US: a “gold card” that offers investors a path to US citizenship for $5 million.
“I think it’s going to be very treasured. I think it’s going to do very well. And we’re going to start selling, hopefully, in about two weeks,” President Donald Trump said on Wednesday.
Commerce Secretary Howard Lutnick said the plan could raise $1 trillion to pay down the national debt, and that it would replace the existing EB-5 investor visa.
But immigration law experts say the “gold card” proposal is far more complicated and uncertain than Trump and Lutnick made it sound. Here are several reasons why:
The president can’t create a new visa on his own
The gold card Trump described would be a new visa granting lawful permanent resident status in the US and a pathway to citizenship. But a president alone can’t create a pathway to citizenship – a fact that’s also foiled Trump’s predecessors’ desires for significant immigration reforms.
Both President Barack Obama and President Joe Biden used executive actions to protect certain people from deportation – efforts frequently decried by Trump and other Republicans. But Obama’s Deferred Action for Childhood Arrivals program, known as DACA, and Biden’s humanitarian parole program for migrants from Cuba, Haiti, Nicaragua and Venezuela, known as CHNV, stopped short of conferring a legal status or providing a pathway to citizenship.
Immigration law experts say a new visa would require a new law, something a president can’t create on his own.
“Congress would have to legislate a new program. I really don’t know what legal authority you would have to just create this new program out of whole cloth,” says Sharvari Dalal-Dheini, senior director of government relations for the American Immigration Lawyers Association.
In other words, lawmakers would need to pass a law to create the program Trump has described.
The Trump administration “has literally no legal power to create a visa category,” says Charles Kuck, an immigration lawyer in Atlanta.
It isn’t the first time Trump has tried to tie wealth to immigration privileges. During his first term, the Trump administration attempted to reshape legal immigration to the US by broadening the definition of a public charge and penalizing those who rely on public assistance in green card applications.
Critics said that measure, which was ultimately revoked by the Biden administration, amounted to an unjust “wealth test,” while Trump administration officials defended the move, arguing that self-sufficiency is a core American value.
This latest effort by Trump earned swift praise from supporters who lauded the president’s outside-the-box thinking, and criticism from immigrant rights advocates who say it’s sending the wrong message.
“All it’s saying is we want the richest people in the United States, rather than maybe the best and the brightest, or those who are going to actually serve in the national interest of the United States by … improving our economy overall,” Dalal-Dheini says.
Congress created the EB-5 program. That means ending it would require Congress to act
Lutnick said Tuesday that the gold card would replace the government’s EB-5 immigrant investor visa program, which allows foreign investors to pump money into US projects that create jobs and then apply for visas to immigrate to the US.
Immigration law experts say ending the EB-5 program or significantly changing it would also require Congress to act.
On Wednesday, Lutnick suggested the program would be modified rather than replaced.
“We will modify the EB-5 agreement,” Lutnick says. “(Homeland Security Secretary) Kristi (Noem) and I are working on it together. For $5 million, they’ll get a license from the Department of Commerce. Then they’ll make a proper investment.”
Congress created the EB-5 visa in 1990. Statutes define how many visas can be granted under the program every year and how much money investors must contribute to participate. The law allows the admission of about 10,000 investors and qualifying relatives annually, according to the Congressional Research Service.
Applicants who filed before March 15, 2022, must have invested at least $1 million – or $500,000 in economically distressed zones known as targeted employment areas, according to US Citizenship and Immigration Services. Applicants after that date must invest at least $1,050,000 – or $800,000 in economically distressed zones.
Kuck, who says he’s helped hundreds of clients navigate the EB-5 process, says he sees “zero chance” that Congress would eliminate the program and replace it with the gold card proposal.
“The amount of money that the EB-5 program has brought in over the course of the last 30 years would dwarf the number of people who could actually afford and want to use a $5 million golden visa,” he says. “People with that kind of money do not necessarily want to be subject to U.S. taxation.”
Could lawmakers pass changes to the program in the budget reconciliation process?
Nicolette Glazer, an immigration lawyer in California, says it wouldn’t be possible to end or significantly change the EB-5 program that way. But it’s possible a “gold card” provision could be added, she says, if it’s presented as a simple immigration tariff.
“I could see them trying to put in something like that just to show that they’re doing something,” she says.
Past efforts by Democrats to make a major immigration policy change during reconciliation were rejected by the Senate parliamentarian, Kuck says.
“They can’t change immigration law in reconciliation,” he says.
Officials haven’t said what would happen to investors already waiting for a green card
What about the thousands of people who’ve already applied for EB-5 visas and are waiting for decisions from the government?
Officials haven’t said what would happen to them under the gold card plan.
Many with concerns have been reaching out to attorneys, uncertain of what the new move could mean for their applications, according to Dalal-Dheini of the American Immigration Lawyers Association.
“They’ve already invested their money into this while they’re waiting for their green card to be approved. … It’s a multi-step process and it can take years, if not decades, for someone to get approved,” Dalal-Dheini says. “So pulling the rug out from under those investors without any notice or without any opportunity to either save their investment or be able to finalize their process would be really unfair and would actually damage our economy.”
Other questions about the gold card proposal remain unanswered, too, such as how or whether it would help foreign graduates of US universities. That’s something Trump suggested last week while offering few details, saying companies may be able to buy gold cards and give them to foreigners as a recruitment tool.
It’s also unclear how applicants would be vetted, though Lutnick stressed that would be a priority. Already critics are warning the gold card would be likely to attract criminals eager to pay their way into the US.
“Selling US citizenship to the highest bidder will attract corrupt actors seeking safe haven for themselves and their dirty money,” Transparency International CEO Maíra Martini said.
For his part, Trump maintained creating the gold cards would be “totally legal.” Asked whether he would consider selling the cards to Russian oligarchs, Trump responded: “Yeah, possibly. I know some Russian oligarchs that are very nice people.”
Despite the confusion Trump’s announcement caused, Dalal-Dheini says she sees an opening in the president’s recent comments.
“We do need to increase the number of green cards that we have available to people. There aren’t enough,” she says. “And I think what the president is highlighting is that immigrants actually contribute to our economy … A number of our big entrepreneurs that have been super successful came here as immigrants.”
And that, she says, is something many people across the aisle can agree on, whether or not Trump’s gold card proposal ever becomes a reality.
CNN’s Michael Williams and Piper Hudspeth Blackburn contributed to this report.
