Can Trump’s “Gold Card” Visa Bypass Congress? Understanding Presidential Power Over Immigration

By C. Matthew Schulz

In February 2025, President Donald Trump announced a new "Gold Card" visa that would allow foreign nationals who invest $5 million in the U.S. to gain a fast-track path to citizenship. At the same time, he announced plans to eliminate the EB-5 Immigrant Investor Program, which currently grants green cards to individuals who invest $1,050,000 (or $800,000 in targeted employment areas).

Bu does a U.S. president have the power to create or eliminate immigration pathways without Congress?

Is It Real?

No. Or at least, not yet. 

There is a well-written article published at Barrons on April 8, 2025, with this image that says:

President Donald Trump last week showed off a $5 million gold card visa emblazoned with his image to reporters on Air Force One. He said it would be available “in less than two weeks, probably.”

The article went on to say that President Trump also said he was the first to buy on, which seems especially odd if he was right that it would be available in less than two weeks. It is now much more than two weeks later and there is no implementing legislation introduced in Congress. Of course, the President did say "probably."

Can a U.S. President Create Like the Gold Card or Abolish Immigration Programs Like the EB-5 Immigrant Investor Visa?

No, the President cannot create or abolish visa categories.

The U.S. Constitution grants Congress, not the President, the power to regulate immigration and naturalization. Specifically, Article I, Section 8, Clause 4 gives Congress the authority to "establish a uniform Rule of Naturalization." This means that only Congress can create or abolish visa categories and pathways to lawful permanent residency or citizenship.

The executive branch, led by the President, has broad discretion in enforcing existing immigration laws. 

This authority comes from the Immigration and Nationality Act (INA) (8 U.S.C. § 1101 et seq.) and various Supreme Court rulings that confirm the President’s control over immigration enforcement, national security measures, and visa policies.

A President CAN issue Executive Orders to adjust immigration policy, enforcement priorities, and visa processing procedures through agencies like USCIS and DHS.

A President CANNOT create a new visa category like the Gold Card visa or eliminate an existing one like EB-5 without Congress passing a law.

Can Trump Eliminate the EB-5 Visa Program?

No.

The EB-5 Immigrant Investor Program was established by Congress in 1990 through the Immigration Act of 1990 (Public Law No. 101-649). Because it was created by law, only Congress has the power to repeal it.

A President CANNOT eliminate EB-5 by Executive Order, but they could:

• Direct USCIS to enforce stricter regulations, making it harder for applicants to qualify.
• Shift resources away from processing EB-5 applications, slowing approvals.
• Use national security justifications to temporarily suspend certain visa categories (though this would likely face legal challenges).

The only way to completely abolish EB-5 is for Congress to pass legislation that repeals or replaces it

Can Trump Create the Gold Card Visa by Executive Order?

Similar to the EB-5 visa, a new Gold Card visa program would require legislation from Congress.

For Trump’s Gold Card visa to become law, Congress would need to pass a bill outlining:

• Investment requirements ($5 million threshold)
• Eligibility criteria (who qualifies and under what conditions)
• Benefits (such as permanent residency or a path to citizenship)
• Regulatory oversight (fraud prevention, compliance measures)

Once Congress passes the bill, the bill becomes law after the President signs it.  Presumably, then the USCIS would be responsible for implementing the program.

What Can a President Do Without Congress?

Although the President cannot create or eliminate visas unilaterally, they can take executive actions that impact immigration programs:

• Expand Parole Programs – The President can use humanitarian or significant public benefit parole to allow select investors to stay in the U.S. temporarily. However, this does not guarantee permanent residency. Further, the Trump Administration has been critical of the use of parole program, ending many long-standing programs since coming into office.
• Modify Regulations – Through federal agencies, a President can adjust rules affecting investment-based visas, making them more restrictive or more accessible, but this does not empower the creation of a Gold Card or elimination of EB-5.
• Issue Proclamations or Executive Orders – A President can suspend certain visas under national security or economic concerns. This seems to be how the new Administration prefers to do business, but this does not empower the creation of a Gold Card or elimination of EB-5.  

Potential Negative Impact on U.S. Businesses and EB-5 Investors

Impact on Job Creation & Local Economies

The EB-5 program has long been a major driver of U.S. economic development, funding real estate projects, infrastructure, and businesses that create thousands of American jobs. Many U.S. companies, particularly in rural and economically distressed areas, depend on EB-5 investments to finance projects and stimulate job growth.

Trump’s anti-EB-5 rhetoric discourages investors.  As a result, American businesses that rely on EB-5 funding may face financial uncertainty, leading to:

• Delayed or canceled construction projects
• Fewer jobs for American workers
• Increased reliance on government subsidies for economic development

Impact on Potential Immigrants Seeking the American Dream

For investors hoping to secure a future for their children in the U.S., the uncertainty surrounding EB-5 may force them to look elsewhere—a move that could weaken America’s ability to attract global talent and investment.

Since 1990, EB-5 has provided a legal pathway for foreign investors to bring their families to the U.S., offering their children access to world-class education and economic opportunities.

Trump’s remarks about abolishing EB-5 are likely to discourage future investors who then see the U.S. as an unstable destination for investment-based immigration.  Our loss is likely the gain for alternative investment visas in countries like Canada, Australia, or the UK.

Potential consequences include:

• A decline in EB-5 visa applicants, weakening investment in U.S. job-creating projects.
• Foreign investors losing confidence in the stability of U.S. immigration policies.
• Families reconsidering the U.S. as a long-term destination for education, business, and residency.

The Gold Card Visa Needs Congress, and Creating EB-5 Uncertainty Hurts the U.S. Economy

While Trump’s Gold Card visa proposal has gained media attention, it cannot become law without Congressional approval. Likewise, the EB-5 program cannot be eliminated by Executive Order alone.

However, Trump’s statements attacking EB-5 may have unintended consequences, discouraging foreign investors and hurting U.S. businesses that depend on EB-5 funding. At a time when foreign investment is vital to American job creation, mixed messages from political leaders could drive much-needed capital to other countries.

For those considering an EB-5 investment, it’s crucial to stay informed through official government sources like USCIS and to consult with immigration experts to navigate policy uncertainties.