United States: Trump Administration Launches “Gold Card” Program Allowing Foreign Nationals to Obtain Permanent Residence Through Payments of $1 Million or More

Qualifying payment amounts. Under the new Gold Card Program, individual applicants would be eligible for permanent residence by making a $1 million payment, and corporations and similar entities could sponsor individuals for a $2 million payment under the “Corporate Gold Card” program.

It appears that the required $1 or $2 million payment would apply only to the principal applicant and not to any dependents, though that will need clarification. In addition, the required timing of the qualifying payment is not clear. The implementing agencies are expected to explain these issues over the course of the 90-day implementation period.

Immigrant visa category and eligibility. According to the executive order, the qualifying $1 or $2 million payment, as applicable, would serve as evidence of the foreign national’s extraordinary or exceptional ability and substantial benefit to the United States for purposes of eligibility for permanent residence under the EB-1 extraordinary ability or EB-2 exceptional ability categories and for a national interest waiver (NIW) of the labor certification requirement.

Like other permanent residence applicants, Gold Card applicants would undergo background checks and vetting, and would need to be otherwise eligible for permanent residence status and not subject to any grounds of inadmissibility. In addition, as with any EB-1, EB-2, or other numerically limited permanent residence application, an immigrant visa number must be available. As such, payment of the qualifying $1 or $2 million would not eliminate any immigrant visa backlog issues that may apply to a particular foreign national’s case, based on their country of birth and immigrant visa category.

The Corporate Gold Card program. Although the Corporate Gold Card program would appear to be aimed primarily at companies who seek to sponsor their employees for permanent residence, the executive order does not limit the use of the program to employers. Rather, as written, it would appear to allow any corporation or similar entity to pay $2 million to sponsor any individual foreign national for a green card.

Under the Corporate Gold Card program, if the foreign national originally sponsored by the company drops out of the process or relinquishes their status, the sponsoring company would be able to reuse its $2 million sponsorship payment for a different foreign national, without having to pay another $2 million for the new individual’s sponsorship.  

Case processing. The executive order requires the Department of Homeland Security and the State Department to expedite processing of these cases, but the order does not specify required processing timeframes.

In addition to the $1 or $2 million qualifying payment, individual applicants and corporate sponsors would have to pay an unspecified nonrefundable processing fee for each foreign national application, and corporate sponsors would also be required to pay a small but unspecified annual maintenance fee, along with a transfer fee if seeking to transfer credit for their $2 million payment to a different foreign national.

The executive order requires the implementing agencies to establish the application and expedite process and administrative fees for these cases over the course of the 90-day implementation period. During this timeframe, the agencies must also specify the date on which applicants or sponsors can begin making qualifying payments.

Possible expansion to EB-5. The executive order also tasks the three implementing agencies with considering whether to expand the Gold Card program to the EB-5 investor visa category. As the qualifying amounts for the EB-5 category are different than the qualifying amounts for the Gold Card category, and as the EB-5 category requires an investment in a U.S. business whereas the Gold Card program involves a qualifying payment to the U.S. government, it is not immediately clear how a Gold Card program applicant would qualify for EB-5 classification as that category is currently defined.

Although the executive order makes no mention of the planned Platinum Card Program, the Administration has updated its Gold Card website to provide a general overview of the Platinum Card proposal. According to the website, the Platinum Card program would allow a foreign national who makes a $5 million payment to the U.S. government (plus processing fee) to live in the United States for up to 270 days each year without being subject to U.S. taxes on non-US income. (This contrasts with the tax treatment for individuals approved for Gold Card permanent residence, who, according to the Gold Card website, will be treated similarly to other permanent residents and U.S. citizens.)

The Platinum card would apparently serve as a visa, although the immigration status that the individual would hold is not clear.

The timeline for this proposal and the legal authority that would be used to establish such a program is not yet known. The initiative may require legislation.

The Departments of Commerce, State, and Homeland Security are required to establish the application process for the Gold Card program over the next three months, and details of the program will become known over that period.

It remains to be seen whether the Administration will seek to revise current regulations governing the EB-1 extraordinary ability and EB-2 exceptional ability NIW categories to align them more closely with the parameters of the Gold Card program; however, the normal rulemaking timeline typically could not be completed within the 90-day implementation timeline called for in the executive order, unless the Administration were to seek to use an exception to the normal notice and comment requirement.

It is possible that the novel approach to establishing eligibility for EB-1 extraordinary ability or EB-2 exceptional ability NIW classification through making a substantial qualifying payment to the government could be the subject of litigation, which may in turn impact the Administration’s implementation of the program.

Fragomen is closely monitoring the implementation of the new Gold Card program and the development of the planned Platinum Card initiative and will provide further updates as warranted.