Immigration law experts expressed confusion on Wednesday, the day after President Donald Trump announced that the U.S. would begin selling a gold card visa for $5 million that would allow wealthy foreigners to live and work in the U.S. and provide them with “a route to citizenship.”
In remarks in the Oval Office on Tuesday, Trump and Commerce Secretary Howard Lutnick said the program would begin in two weeks and replace the EB-5 visa program that allows foreign investors to live and work in the U.S. if they invest in companies that create jobs for Americans.
The EB-5 visa program, however, was created by an act of Congress in 1990, and it is unclear whether Trump has the authority to do away with it or to establish a new visa program without congressional action.
“We have it all worked out from the legal standpoint. It’s totally legal to do,” Trump said.
Questions about legality
Immigration lawyers flatly disagreed.
“The truth is the president would need Congress to pass an act allowing for this new vehicle,” said Michael Wildes, a practicing immigration law attorney who also teaches the subject at Cardozo Law School in New York City.
Wildes, who has represented first lady Melania Trump and members of her family in immigration matters, said that so little information has been made available about the program that it is difficult to gauge how large an impact it is likely to have.
The information that has been released, however, reflects the president’s approach to issues such as immigration, he said.
“He will treat people with deeper pockets more handsomely than others,” Wildes told VOA. “This is consistent with his ethic.”
“If the administration is proposing to rework the terms of the EB-5 program, that is blatantly illegal,” Jorge Loweree, managing director of programs and strategy for the American Immigration Council, told VOA. “The parameters of that program were designed by our legislative branch. The president can’t rewrite them on a whim.”
David J. Bier, director of immigration studies at the Cato Institute, wrote “Selling green cards is good in theory, but Trump’s specific proposal has some problems.” One, he wrote, is that “President Trump cannot lawfully eliminate Congress’s EB‑5 investor program.”
The White House did not respond to a request for comment from VOA.
Oval Office announcement
Trump revealed the plan to a group of reporters in the Oval Office on Tuesday, saying that the new offering would be superior to the document currently issued to foreigners with permanent residency status, commonly known as a green card.
“We’re going to be selling a gold card,” Trump said. “You have the green card? This is a gold card. We’re going to be putting a price on that card of about $5 million, and that’s going to give you green card privileges plus. It’s going to be a route to citizenship, and wealthy people will be coming into our country by buying this card.”
The president did not explain what privileges a gold card holder would enjoy that green card holders do not. He also did not explain what he meant by a “route to citizenship.”
Trump said that in addition to wealthy foreigners who want to live in the United States, he believes that U.S. corporations will be willing to buy the cards so that they can hire talented workers from outside the country.
“Companies will pay for people to get in and to have long-term status in the country,” he said.
There are already several pathways available to foreigners who want to come work in the U.S. The H1-B visa program allows thousands of skilled workers into the country every year. In addition, there are several visa programs that allow executives of international companies to live and work in the U.S. if they are transferred to a U.S. office or affiliate.
EB-5 program targeted
Commerce Secretary Lutnick said Tuesday that the administration plans to discontinue the existing EB-5 visa program, which he described as “full of nonsense, make-believe and fraud.”
The EB-5 program provides green card status to foreigners who invest $1,050,000 in companies in the U.S. that create at least 10 jobs. The amount can be lowered to $800,000 if the investment is made in certain types of infrastructure or in parts of the country the government has targeted for economic development.
Lutnick appeared to say that the $5 million fee for a gold card would not have to go toward job-creating investment; instead, it would go directly into federal coffers.
“We can use that money to reduce our deficit,” he said.
Higher bar for entry
Shereen Chen, an immigration attorney who practices in New Jersey, told VOA that for many wealthy foreigners hoping to come to the U.S., the new rules could complicate the process.
The current rules include a “stringent vetting program” to ensure that money invested under the EB-5 program was earned legitimately, Chen said. The process is lengthy and difficult and will only become more so, Chen said, if the amount of money being vetted increases fivefold.
The new program would have dire implications for Chinese nationals hoping to come to the U.S. While many Chinese have made use of the EB-5 program, tighter monetary controls in China have made doing so increasingly difficult.
“Right now, it’s very hard for Chinese nationals to use the EB-5 program, even at $1,050,000, because it’s very hard for them to get money out of China,” Chen said.
Common practice
The U.S. is far from alone in having policies on its books that allow wealthy foreigners to trade investment for residency privileges.
Henley & Partners, a London-based consultancy that advises clients seeking international residency and citizenship options, tracks programs in more than 100 countries that offer some sort of investment-for-residence program.
About 30 jurisdictions offer citizenship in exchange for investment, a deal commonly known as a “golden passport.” In recent years, the European Union has been pressing member states with such programs to eliminate them out of concern that they abet illegal activity such as tax evasion and money laundering.
