Trump Gold Card Favors Wealth Over Merit, Tempting Lawsuits

President Donald Trump’s signature proposal to attract new immigrants to the US would allow the ultra wealthy a chance to buy visas traditionally reserved for the highest achieving foreign workers.

That framework for the Trump “gold card” is raising questions over the legality of the plan and its impact on high-skilled immigration, attorneys say. For many, it suggests the administration is less interested in rewarding merit than favoring potential immigrants with the deepest pockets.

An executive order signed by the president in September directed federal agencies to craft regulations creating a path to permanent residency in exchange for a $1 million check from individuals or $2 million from employers seeking to sponsor workers.

Instead of replacing an existing investor visa program—as administration officials originally suggested—the order envisions using EB-1 “extraordinary ability” visas or EB-2 visas for individuals who show exceptional ability. The latter category also allows those who meet criteria for national interest waivers to apply without an employer’s sponsorship.

“If those visas are being used by people who simply have the money to pay for it, I don’t think that’s a positive for the country,” said Ian Wagreich, a partner at Hinshaw & Culbertson LLP. “It has the potential for crowding out skilled professionals.”

Redefining Visa Criteria

Key details about the visas will be spelled out in forthcoming regulations from the departments of State, Commerce, and Homeland Security. Trump’s executive order directed the agencies by Dec. 19 to take steps to implement the program, including setting up a process for applications and expedited processing. A $5 million platinum card offering the ability to reside in the US for up to 270 days a year without being taxed on non-US income was announced on a Trump administration website, but not mentioned in the order.

But experts say overriding criteria for the high-skilled green card categories will make the initiative vulnerable to legal challenges.

“Congress created the EB-1 and EB-2 to reward merit,” said Becky Fu von Trapp, managing attorney at von Trapp Law PLLC. “The gold card just attempts to treat a financial gift as equivalent proof.”

Successful EB-1 visa applicants must show evidence of national or international acclaim in their field and offer documentation highlighting achievements in their field. EB-2 hopefuls must demonstrate significant expertise in their field. National interest waivers are only granted to applicants with an advanced degree or exceptional ability who offer a proposal of national importance.

Using those green card categories was the administration’s way of shoehorning the gold card into the existing framework of the Immigration and Nationality Act, said George Fishman, a senior legal fellow at the Center for Immigration Studies and a former deputy general counsel at DHS. The administration may claim that a $1 million donation to the US Treasury would qualify for a national interest waiver under the EB-2 category, he said, but it may not have an easy time showing that wealthy immigrants meet statutory criteria for the extraordinary ability visa category.

“The administration is going to have to come up with some very creative arguments to claim that test is met by writing a check,” Fishman said.

Regulations will also clarify major practical questions, attorneys say, among them: Would a donation to the US Treasury alone, for example, supersede statutory criteria for green cards under the plan? And would a $1 million investment grant just an individual, or their entire family a visa?

It’s also unclear how the government would examine the source of funds for gold cards. Existing investor visa options put applicants through heavy scrutiny over the origin of their financial resources that attorneys say may not be welcomed by ultra wealthy immigrants.

Investor Visa Fallout

Commerce Secretary Howard Lutnick, a key figure in the gold card initiative, said earlier this year that the the program would replace the EB-5 investor visa category. That program offers a path to permanent residency for immigrants who invest certain thresholds in businesses that create jobs in the US.

EB-5 visa petitions have steadily climbed since passage of a 2022 law reauthorizing large enterprises known as regional centers that pool funds from multiple investors.

The initial announcement of the gold card generated significant interest from Indian and Chinese nationals, who account for most EB-5 investors. Typically those visa applicants are already present and working in the US. They’ve raised funds from family members or cashed out company stock to pay for the substantial cost of EB-5 visas to avoid daunting backlogs in traditional employment-based green card categories.

Immigrant workers from India and China already face multiyear waits for the EB-1 green card category and applicants from those countries as well as Mexico and the Philippines could wait years for a visa in the EB-2 category. That means the September framework released by the White House makes the gold card much less attractive for Indian and Chinese nationals.

Those immigrants could invest less in the EB-5 option, obtain permanent residency faster, and still get a return on their investment, said Joey Barnett, a partner at WR Immigration.

The gold card would still worsen green cards for all foreign nationals in the EB-1 and EB-2 categories, he said.

“Absolutely—100% it’s going to do that,” he said. “Especially if it’s issued on an expedited basis.”

The small number of extremely high-net worth individuals with $1 million to donate to the US Treasury and possible exposure to US tax rules from the gold card though will also limit the pool of applicants to the program, said Andrew Diroll-Black, chief compliance officer at American Lending Center and a former senior policy adviser at DHS.

“There simply aren’t that many people on the planet who fit that profile,” he said.