The Future of the EB-5 Program and the “Golden Card”

1. Authority to establish the “Golden Card”: The U.S. President does not have unilateral authority to create a new immigrant visa category such as the “Golden Card.” Doing so would require new legislation passed by Congress through the ordinary legislative process.
2. Whether the EB-5 program can be terminated: The President cannot unilaterally terminate EB-5, which was created by and is governed by statute. Closing the program outright, or changing it fundamentally, would require an act of Congress. Note that the EB-5 Regional Center Program is currently authorized through September 30, 2027 under the EB-5 Reform and Integrity Act of 2022 (RIA 2022).
3. Impact on EB-5 investors:
   • Investors who have already filed: Investors who have filed Form I-526 or Form I-526E — in particular petitions filed through a regional center on or before September 30, 2026 — are covered by the grandfathering provisions of the EB-5 Reform and Integrity Act of 2022 (RIA 2022). Their petitions are expected to continue to be processed and adjudicated under the rules in effect when they filed.
   • Investors planning to file: This group faces greater legal uncertainty. Filing an EB-5 petition under the current rules (US$800,000 for a project in a targeted employment area or infrastructure project, or US$1,050,000 for a standard project) as early as practicable may improve the prospect of being assessed under the present framework before any change is enacted.
4. Status of the “Golden Card” proposal: As matters stand, the “Golden Card” is a policy idea rather than law: no bill has been introduced in Congress. Implementing it would require a full legislative process, and any attempt to do so by executive action alone could be challenged in court.
5. What a US$5 million threshold would mean: If EB-5 were terminated and replaced by a “Golden Card” requiring US$5 million, U.S. residency by investment would be out of reach for the great majority of investors who use the program today, and would remain practical only for a small ultra-high-net-worth group. The likely result is a sharp fall in EB-5 capital flows into the United States and a shift of investor interest toward alternative investment migration programs in other jurisdictions.

• Where legislative authority sits: Under the U.S. Constitution, the authority to set the rules governing immigration and naturalization rests with Congress — both the House of Representatives and the Senate.
• Limits on the President’s executive power: The President has a significant role in proposing policy and directing how the law is enforced, but cannot create an entirely new visa category by executive order unless that category rests on authority Congress has already granted. Executive orders direct the implementation of existing statutes; they do not substitute for them.
• The legislative path. For a program such as the “Golden Card” to take effect, it would have to clear each of the following stages:
  • Drafting and introduction of a bill. The administration or a member of Congress must draft and introduce a bill setting out the elements of the new category in detail — the investment amount, any job creation requirement, source-of-funds standards, the adjudication process, and visa allocation.
  • Committee review. The bill is referred to the committees of jurisdiction — normally the Judiciary Committees — in both the House and the Senate for debate, amendment, and a committee vote.
  • Passage in both chambers. The bill must be approved by a majority in the House and in the Senate. This requires broad agreement and can take considerable time.
  • Reconciliation between the chambers, if required. Where the House and Senate pass different versions, a conference committee is convened to settle the final text.
  • Signature by the President. Once both chambers have approved the bill, it goes to the President, whose signature enacts it into law. The President may instead veto the bill, and Congress may override that veto by a two-thirds vote in each chamber.
• Implementing regulations. After enactment, the responsible agencies — principally the U.S. Department of Homeland Security (DHS) and U.S. Citizenship and Immigration Services (USCIS) — must draft and publish detailed regulations to govern implementation. That rulemaking is subject to the Administrative Procedure Act (APA), including the requirement to invite public comment.
• Conclusion on the “Golden Card”: Establishing a “Golden Card” program would require a complete legislative effort and the approval of Congress. It is not a step the executive branch can take on its own.

• Legal basis of EB-5: The EB-5 program was created in 1990, when Congress added it to the Immigration and Nationality Act (INA) to drive economic growth and job creation through foreign investment.
• Limits on presidential authority: As with creating a new program, the President has no unilateral authority to terminate the EB-5 program, because it is established by statute.
• Lawful termination process:
  • Legislative action by Congress: The only way to end the EB-5 program entirely is for Congress to pass new legislation amending or repealing the specific EB-5 provisions of the Immigration and Nationality Act. That process is as demanding as enacting any new law.
  • Presidential signature: A law repealing the EB-5 program, once passed by Congress, requires the President’s signature to take effect.
• How the regional center program works:
  • Most EB-5 investment activity today runs through regional centers. This part of the program operates under a sunset date and must be periodically reauthorized by Congress.
  • Under the EB-5 Reform and Integrity Act of 2022 (RIA 2022), the regional center program was reauthorized and reformed, with authorization running through September 30, 2027. Ending the program before that date would likewise require legislative action by Congress.
  • If Congress does not extend the program beyond 2027, the regional center program would lapse automatically. Note, however, that the direct EB-5 component is considered permanent and could be eliminated only through new legislation.
• Limited executive measures:
  • The President can use certain authorities to suspend visa issuance temporarily in specific circumstances — on national security grounds, for example — but this is not a means of permanently terminating the program.
  • The administration can also issue new regulations (subject to the Administrative Procedure Act) that materially change how the program operates: raising the minimum investment amount, redefining what qualifies as a Targeted Employment Area (TEA), or tightening source-of-funds documentation, among others. Such changes can make the program less attractive or harder to use, but legally they do not amount to “closing” it.
• Conclusion on closing EB-5: ending the EB-5 program entirely rests with Congress and requires legislative action.

1. Investors who have already filed

• Degree of comfort: relatively high.
• Legal basis for protection: Investors who have filed Form I-526 or I-526E, particularly petitions filed through a regional center before September 30, 2026, benefit from the grandfathering provisions of RIA 2022. U.S. legislative practice has generally tended to protect those who have already filed and are awaiting adjudication when the law changes.
• Outlook for petitions: There is a sound basis to expect that USCIS will continue to process and adjudicate these petitions under the rules and legal requirements in effect on the filing date.
• Points to keep in mind: Although the core legal position is protected, investors may still encounter procedural changes, longer processing times, or more exacting requirements at the stage of removing conditions on permanent residence (Form I-829), as immigration policy and regulations are adjusted.
• What we advise: Investors in this group can take comfort in the legal basis protecting their petitions, but should keep following their case closely and stay current with USCIS guidance and their immigration attorney.

2. Investors who have not yet filed (considering or planning to file)

• Degree of uncertainty: significantly higher.
• Potential risk: If filing is delayed and the EB-5 program undergoes major change or is replaced by a US$5 million “Golden Card,” investors could lose the chance to participate on current terms, or face far higher capital requirements.
• Recommended approach: For most investors in this position, moving promptly to complete and file an EB-5 petition under the current rules is the more prudent course. Filing before any change in the law takes effect — or before a specific cut-off date, if new legislation sets one — may improve the likelihood that your petition is adjudicated under the existing rules.
• How much certainty is there: No outcome is ever absolutely certain. Grandfathering provisions are common practice, but Congress technically retains the power to enact legislation without them. That scenario is unusual and would likely invite complex litigation. In practice, the legislative process takes time, which may leave a window for investors to file.
• What we advise: Prospective investors should review their plans carefully and work closely with immigration attorneys and advisors to prepare and file as early as is practical, with a view to being assessed under the rules now in force and limiting exposure to future policy change.

• Nature of the proposal: Reports that President Trump has proposed a “Golden Card” program with a US$5 million investment threshold should be read in context: these are ideas or policy directions put forward for discussion, not policy that has been enacted into law.
• Current stage: As of this writing, no formal “Golden Card” bill has been introduced in Congress, and no related executive order has been issued. As a result, no legal framework or detailed guidance exists for the program.
• Prospects for implementation: Implementing a “Golden Card” program would in all likelihood require congressional approval through the legislative process. Any attempt to establish it through executive authority alone could face significant legal challenges and litigation.

• Where the demand comes from: EB-5 draws investors from a relatively small number of source countries, among them Vietnam, which has for years been one of the leading markets by number of EB-5 investors and accounts for a significant share of the EB-5 visas issued annually. For many individuals and families with the financial capacity to do so, the program has been an important route to permanent residence in the United States.
• Impact analysis:
• • For investors who have already filed: As discussed above, this group has a relatively high degree of comfort thanks to the legal protections now in force, in particular RIA 2022.
  • For investors planning to file: Should EB-5 in fact be replaced by a “Golden Card” at a US$5 million investment level, that threshold would be a financial barrier beyond the reach of the great majority of investors who use the program today. It would then be realistic only for a very small group of ultra-high-net-worth individuals, and EB-5 capital flows into the United States would be likely to fall sharply. Investors would in turn look harder at alternatives, such as residency by investment programs in Europe, Canada and Australia, or other U.S. visa categories such as E-2 (which may require first acquiring citizenship of a treaty country such as Grenada).

• What this means for prospective investors:

• • • Investors who are eligible and genuinely intend to pursue U.S. residence through EB-5 may wish to consider acting promptly to file under the rules currently in force.
    • In parallel, researching and preparing contingency options — including residency by investment programs in other countries, or other U.S. visa categories — is a sensible step in case the EB-5 program changes unfavorably in the future.

Statements and proposals about introducing a “Golden Card” program or ending the EB-5 program carry no binding legal effect at this time. Fundamental changes to U.S. investment immigration policy — whether creating a new program or repealing an existing one — rest with Congress and must move through the ordinary legislative process. The President cannot make such changes unilaterally.

IMM Group
www.immgroup.com