Trump's $5 million 'gold card' visa plan likely needs Congress

WASHINGTON — President Donald Trump has said he does not need Congress to create so-called gold cards to offer foreign nationals a path to citizenship at the price of $5 million, but immigration policy experts and some Republican lawmakers cast doubt that a president could implement such a plan alone.

As nebulous as Trump’s proposal stands at this point, current law imposes limits on green cards such as the number of cards that can be issued in the EB-5 program that Trump ultimately wants to replace, as well as the price and conditions for making it happen, experts say.

And interviews with Senate Republicans engaged on homeland security and immigration issues suggest any legislative plans for authorization of the gold card was not at the forefront of their minds.

Shev Dalal-Dheini, director of government relations for the American Immigration Lawyers Association, said any creation of a new visa category “has to be done by statute.”

“Whether you create a new category or get rid of a different category, you need a statute to do so,” Dalal-Dheini said. “And even if it was a question about raising the limit of how much money is invested into the EB-5 program, that’s also statutorily so it will require some congressional action to make this go forward.”

Eric Ruark, who focuses on research at NumbersUSA, a group that wants to reduce immigration, said Tuesday that much of the proposal isn’t fleshed out and “obviously we can’t do this without Congress.”

“You can’t change the statutory allocation of green cards simply by executive order,” Ruark said.

One libertarian think tank sees a narrow path for Trump to implement his gold card under executive authority. The CATO Institute’s David J. Bier wrote in a Feb. 26 blog post that there is no authority to make radical changes, but Trump could use his “parole” authority to grant short-term lawful residence to people willing to pay $5 million.

Beyond that, Bier wrote such “green card privileges” and a path to citizenship can only come from an actual green card. “It is doubtful that wealthy people would pay $5 million for something with dubious legal standing or a temporary status that could be rescinded at any time,” Bier wrote.

Trump, when he first publicly spoke about the idea last month in the Oval Office of the White House, told reporters he doesn’t need Congress to pass a law on the plan because the gold card is “a very strong path to citizenship, but we’re not doing the citizenship.”

“We have it all worked out from the legal standpoint. It’s totally legal to do,” Trump said.

And Trump, in a joint address to Congress last week, did not ask Congress to act on the idea and said the gold cards will go on sale “very, very soon” to allow “job-creating people from all over the world to buy a path to U.S. citizenship.”

Trump touted the proposal as means to balance the federal deficit. “For $5 million, we will allow the most successful job-creating people from all over the world to buy a path to U.S. citizenship,” Trump said.

Trump was light on the details, but said the gold card would be like a “green card but better and more sophisticated.” Gold card recipients, Trump said, would have to pay a tax in the United States and create jobs. Trump billed the plan as a way to keep in the United States immigrants who come for a college education.

“They’ll also be taking people out of colleges and paying for them so that we can keep them in our country instead of having them be — being forced out,” Trump said.

Previously, Commerce Secretary Howard Lutnick offered a few more details of the gold card, saying it would ultimately replace the opportunities for a green card under the EB-5 program.

“So the president said, rather than having this sort of ridiculous EB-5 program, we’re going to end the EB-5 program,” Lutnick said. “We’re going to replace it with the Trump Gold Card, which is really a Green Card Gold.”

Foreign nationals under the current EB-5 Immigrant Investor Program system need to meet several criteria, including a commitment to invest a minimum amount of capital into a new commercial enterprise in the United States. The standard threshold is $1,050,000, although for certain designated areas with low employment the minimum drops to $800,000.

Another criterion is being able to create or preserve at least 10 full-time jobs for qualifying U.S. workers within two years of receiving conditional permanent residency. The EB-5 program also has an annual cap of 10,000 visas.

The White House did not respond to questions about the implementation of the gold card.

Details pending

Immigration experts said assessing the practical implications of the gold card is difficult, especially under Trump’s assertion he doesn’t need congressional authorization to move forward.

Dalal-Dheini questioned whether Trump could meaningfully reduce the deficit with the initiative based on the limited number visas, which are currently subject to statute. And she said there are serious questions under the proposed gold card about the vetting process for the visas and the potential impact on communities.

Under the EB-5 program, “it’s not you’re just paying tax to the government, but rather, you are finding ways to invest in American communities and creating American jobs,” Dalal-Dheini said. “And so, what seems to be proposed is very different. You’re just paying money to the government, but you’re not actually taking the time to invest into our local communities to make them stronger and to help American workers.”

Trump supporters who favor more limited access to immigration to the United States may also be disappointed in the implementation of the gold card.

Ruark of NumbersUSA said the gold card is “not something that we would support,” although making the case the current EB-5 program is “certainly rife with fraud” based on the lack of metrics in whether applicants succeed at job creation.

“It’s just like being willing to work for lower wages isn’t a skill,” Ruark added. “Having $5 million at your disposal to buy a green card is not a skill. And we should be focusing on bringing in people who have skills to integrate into our economy and to our society, not people who have $5 million to purchase a green card.”

Ruark said it’s possible Congress could seek to implement a gold card program in the budget reconciliation process. That process is filibuster-proof and focused on budgetary effects but also has limitations that would prevent broad changes to immigration laws.

Sen. Josh Hawley, R-Mo., expressed uncertainty last week about whether Trump could initiate a gold card by rulemaking or whether it would require congressional authorization. Asked whether senators were discussing legislation to make that happen, Hawley replied, “I haven’t heard that yet, but that’s not to say that there won’t be.”

Sen. Rick Scott, R-Fla., said last week he was uncertain whether the gold card would not need congressional authorization, but added he would be “surprised” if Trump could do it without assent from Congress. Scott added he hasn’t heard any discussion about Congress moving forward with the idea.

Sen. Rand Paul of Kentucky, chairman of the Senate Homeland Security and Governmental Affairs Committee, also expressed caution about Trump eliminating the existing EB-5 green card program altogether and said the gold card initiative as proposed by Trump would “probably” need congressional authorization.

Any gold card system should be enacted on top of the existing program, Paul said, because it has “been good for our country.”

“I don’t think it should replace the EB-5 because I think there are a lot of people who come to this country with the EB-5 level that might not come at the $5 million level,” Paul said.