President Donald Trump’s new “Gold Card” visa program uses a new definition of wealth as a job skill to allow wealthy foreigners to bypass immigration rules and obtain citizenship, according to immigration lawyers.
Trump announced last week the start of applications for the “Trump Gold Card,” a new investment visa for foreign nationals. In exchange for $1 million and a $15,000 processing fee, Gold Card applicants will obtain full-time residency in the United States in “record time,” according to the program’s website. The website also offers a “Corporate Gold Card,” allowing companies to pay $2 million to get a “Gold Card” for an employee, and a “Platinum Card,” which offers special tax benefits and could potentially be offered for $5 million.
Only Congress can set immigration policy, meaning the president does not have the power to create or destroy a visa program. So to create the “Gold Card,” Trump is effectively adding a new fee model to two existing programs – known as EB-1 and EB-2 – experts told CNBC.
Both the EB-1 and EB-2 programs are employment-based programs aimed at attracting award-winning or recognized professionals. The EB-1 program, nicknamed the “Einstein Visa,” is aimed at those who possess “extraordinary abilities” – such as scientists, artists, entrepreneurs, athletes and professors who have achieved “sustained international or national prominence.”
The EB-2 is for researchers, scientists and others whose skills are useful in helping solve national problems, such as a leading cancer researcher developing new treatments, or a leading energy scientist who can help expand the power grid.
White House officials say the $1 million payment is proof that “Gold Card” holders are successful businessmen who meet the requirements for exceptional abilities. Anyone with $1 million to spend on a visa is likely to contribute productively to the U.S. economy and society, they say. Entrepreneurs who have established businesses abroad can come to the United States to expand or start new businesses, creating more jobs. Spending by the “Gold Card” rich is also expected to help real estate, the service economy and other sectors.
“Why shouldn’t we send the people out there ready to step up and give the United States $1 million,” Commerce Secretary Howard Lutnick told CNBC last week. “Let’s bring in the top of the top, the best. Why should we take people who are below average?”
Immigration lawyers, however, say replacing highly skilled or famous talent with foreign nationals whose only qualification is writing a million-dollar check distorts the intent of the EB-1 and EB-2 programs. Not everyone with a million-dollar payout is a very successful businessman or entrepreneur, they say. Some may have borrowed money from friends, family, or a lender. Others may have inherited wealth but have few professional skills.
“Having $1 million has nothing to do with your worth as a person of extraordinary ability,” said Emily Neumann, an immigration attorney at Reddy Neumann Brown PC. “That doesn’t mean you’re able to bring value to the United States of America. These categories were supposed to be reserved for people who can drive innovation, contribute to the economy, and create jobs. It’s not necessary for ‘Gold Card’ holders to have a history of any of these things, just because they have a million dollars.”
Although Gold Card applicants cannot legally jump the current queue for EB-1 and EB-2 holders, some lawyers fear that the White House will prioritize Gold Card applicants. Neumann said she has an Indian client who is a leading expert in artificial intelligence and machine learning and is working on AI applications that allow doctors to better diagnose patients. He is approved for EB-1 but is still waiting for a green card, which could take years.
“They use a limited number of green cards that go to people who have done wonderful things,” she said. “It’s a very different standard.”
The use of the EB-1 and EB-2 programs for the “Gold Card” program has created other potential obstacles. While Trump has said he will sell “millions” of “Gold Cards” and Lutnick has said sales could generate $1 trillion in revenue, both programs are capped at about 28,000 per year. Individual countries are capped at 7% of the total, which is why the waiting list for E-1 and E-2 applications from India and China has already been growing for several years.
Immigration lawyers say India and China are believed to be the biggest sources of demand for “gold cards.” However, due to waiting lists, few will apply.
“If Gold Card holders are allowed to skip the queue, there will likely be legal action from those currently on the waiting list,” said Reaz Jafri, an immigration lawyer at international law firm Withers. “And if not, who wants to pay the million dollars and wait three years?”
Unanswered questions and legal risks surrounding the Gold Card have made potential buyers hesitant to apply, lawyers say. Dominic Volek, head of the private clients group at Henley & Partners, said a number of his clients in Taiwan, Vietnam and Singapore are interested in the Gold Card but are waiting for proof that the program works.
Some also fear paying the million dollars and having their visa canceled by a court or a future Democratic administration.
“They want to see the dust settle and see if there are any major legal challenges,” Volek said.
Another concern is the fee structure. Although some domestic investment visas are more expensive – like Singapore’s at almost $8 million or New Zealand’s at almost $3 million – they are structured as investments rather than non-refundable payments. Without an explicit guarantee of a green card, wealthy foreigners are reluctant to pay the million dollars.
“It’s not clear if you make the payment once it’s approved or if you provide the payment as proof, or if it’s held in escrow during the process,” Jafri said. “They didn’t address as many fundamental questions.”
Proof of funds is proving to be another hurdle for wealthy foreigners. In order to detect money laundering or criminal activity, the U.S. government generally requires proof that the million-dollar fee did not come from illegal or illicit sources. Many potential applicants from Asia, Africa and the Middle East are already reluctant to respond to these requests because the financial documentation is not as complete.
“The biggest problem for a lot of clients is being able to document the source of the money,” Jafri said. “In some parts of the world it’s not so easy to document.”