Trump can’t scrap EB-5 Visa-Investors have legal safeguards

In a bold move to attract high-net-worth investors, US President Donald Trump on Wednesday unveiled plans for a new $5 million “Gold Card” Visa USA. This proposed visa aims to provide wealthy investors with a direct path to US citizenship, potentially replacing the long-standing EB-5 investor program. The announcement has sparked widespread debate about the future of US immigration policy and its implications for international investors.

The proposed Gold Card Visa USA is designed to simplify the citizenship process for affluent investors willing to inject substantial capital into the US economy. However, legal experts are questioning the feasibility of Trump’s proposal, arguing that the president does not have the authority to unilaterally eliminate the EB-5 program or create a new visa category without Congressional approval.

Can Trump Shut Down the EB-5 Program?

Since its establishment 35 years ago, the EB-5 investor program has allowed foreign investors to obtain green cards by investing in job-creating projects in the US. Under the current rules, investors contribute between $800,000 and $1.05 million, depending on the location of the project, and must create at least 10 full-time jobs for US workers.

President Trump’s proposed Gold Card Visa USA seeks to supersede the EB-5 program, raising the minimum investment to $5 million. However, immigration experts have voiced doubts about the legality of this move.

“The president can’t shut down the EB-5 program or increase the minimum investment to $5 million without Congressional approval,” said David Bier, Director of Immigration Studies at the Cato Institute. “Congress just reformed the EB-5 program in 2022. Radical changes like this would require legislative action.”

Piyush Gupta, Vice President for India and the Middle East at CanAm Enterprises, emphasized the program’s legislative roots. “The EB-5 program was established by Congress and was recently reauthorized through September 30, 2027, under the EB-5 Reform and Integrity Act of 2022 (RIA). Any modifications would require Congressional approval,” Gupta explained.

Is Trump’s Gold Card Visa USA Legally Viable?

According to Bier, the Gold Card Visa USA is on shaky legal ground. The proposed visa would offer “green card privileges” and a “path to citizenship,” but Bier pointed out that only an actual green card can provide such benefits.

“It is doubtful that wealthy investors would pay $5 million for a visa with dubious legal standing or temporary status that could be rescinded at any time,” Bier said. He also highlighted that while Trump could use his “parole” authority to grant temporary lawful residence, his administration has argued that “categorical parole” of this kind is unlawful.

This raises questions about the long-term stability of Trump’s Gold Card Visa USA, as its legal status could be challenged in court, potentially creating uncertainty for investors.

How Are Current EB-5 Investors Protected?

One of the major concerns is the impact of Trump’s proposal on investors who have already committed funds under the existing EB-5 program. Fortunately, statutory safeguards are in place to protect these investors.

“The statutory grandfathering provision guarantees that investors who file their petitions before September 30, 2026, will be processed under the current law,” Gupta stated. This means that any EB-5 investor who submits a petition before this date will be evaluated based on the regulations in effect at the time of filing, regardless of future policy changes.

CanAm Enterprises has implemented additional safeguards, including an escrow system to protect investors’ funds. “We hold EB-5 capital in a protected escrow account until USCIS issues the investor’s I-526E filing receipt notice. If USCIS does not issue a receipt, the funds are available for refund. These protections remain unchanged,” Gupta noted.

What is the EB-5 Investor Program?

The EB-5 investor program was established to stimulate the US economy through job creation and capital investment by foreign investors. Key features of the program include:

• Investment of $800,000 in rural or high-unemployment areas or $1.05 million in other locations.
• Creation of at least 10 full-time jobs for US workers within two years.
• An annual cap of 9,940 visas, including spouses and minor children, with approximately one-third going to investors themselves.

The process is divided into two stages:

1. Investors submit a petition demonstrating how their investment will create 10 jobs. If approved, they receive a conditional green card.
2. After two years, investors must provide evidence that the jobs were created to remove the conditions on their green card.

The program has faced high denial rates due to its complexity. “Since 2007, more than one in five investors was rejected at the initial stage, and about one in ten were rejected at the second stage,” according to the Cato Institute.

Should the US Reform or Replace the EB-5 Program?

The debate over Trump’s Gold Card Visa USA has sparked discussions about the future of the EB-5 investor program. Varun Singh, Managing Director of XIPHIAS Immigration, believes that reforming the existing program would be more beneficial than replacing it.

“Instead of scrapping the EB-5 program, the US should focus on refining and expanding it to enhance transparency and accessibility. A reformed EB-5 program with faster processing and stricter compliance measures would benefit both investors and the US economy,” Singh argued.

He added, “If the US wants to maintain its position as a preferred investment and immigration destination, protecting and improving the EB-5 program is not just advisable—it is imperative.”

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