The proposed scheme, commonly referred to as the “Gold Card,” promoted by President Trump, which entails the sale or commodification of permanent residence, has raised substantial legal issues. Critics contend that such a scheme conflicts with the existing legal framework governing U.S. immigration law and question its legality under current statutes.
Legal Foundation Requiring Congressional Approval
In the United States, the creation of new visa categories or the modification of eligibility criteria for permanent residency (green cards) fundamentally requires Congressional authorization. The legal basis for this requirement is as follows:
-
- Constitutional Authority to Legislate
Under Article I, Section 8, Clause 18 of the U.S. Constitution, Congress possesses exclusive authority to regulate immigration laws. The U.S. Supreme Court has reaffirmed Congress’s “complete” legislative power over immigration policy, emphasizing that other federal agencies, including the Executive Branch or the President, lack the unilateral capacity to alter this scope of law.
- Comprehensive Immigration Statute (INA)
The current legal framework governing immigration is codified in the Immigration and Nationality Act (INA) of 1952, which provides a comprehensive statutory scheme regulating visa classifications, eligibility requirements, and quotas for issuance. Significant changes to the legal structure of visas or the criteria for obtaining permanent residence can only be effected through formal amendments to this statute enacted by Congress.
- Limitations of Presidential Authority
While the President may influence immigration policy through executive orders, such orders cannot independently establish new laws, create new categories, or amend substantive statutory requirements. The enactment or revision of immigration laws necessitates a formal legislative process involving the submission, deliberation, and approval of legislation by Congress, followed by the President’s signature.
- Constitutional Authority to Legislate
Comparative Insights and Implications from the EB-5 Program
The EB-5 program, which offers a pathway to permanent residence through investment, was enacted in 1990, with the most recent legislative update being the passage of the EB-5 Reform and Integrity Act (RIA) in 2022, which extended the program until 2027.
This program typically requires an investment of USD 1.05 million (or USD 800,000 in designated regional areas) and the creation of at least ten new jobs for U.S. workers. The process also involves rigorous verification of the source of funds to ensure legitimacy.
President Trump has criticized this program as “nonsense,” “fraud-ridden,” and “fictitious,” and has proposed an alternative “Gold Card” scheme. However, the creation of any new law or the repeal/modification of existing systems would, in any case, require formal legislative action by Congress, consistent with constitutional and statutory authority.
Legal Concerns and Criticisms of the “Gold Card”
If the “Gold Card” scheme adopts a “sale” model—i.e., granting permanent residency in exchange for a monetary investment—several profound legal and ethical issues may arise:
-
- Departure from the Purpose of the EB-5 Program
The EB-5 program is designed as a genuine investment scheme that mandates tangible investments and the creation of U.S. employment. Relaxing or exempting these fundamental requirements, such as job creation or verification of funds’ legitimacy, would deviate significantly from the statutory purpose, potentially undermining principles of fairness, transparency, and anti-fraud protections.
- Social and Ethical Criticism for Favoring the Wealthy
Providing permanent residency solely in exchange for payment would favor affluent investors and create stark disparities within the immigration system. Such a system could marginalize other categories—including family reunification, employment-based, refugee, and diversity lottery programs—contradicting the core principles of diversity and equality embedded in U.S. immigration policy.
- Departure from the Purpose of the EB-5 Program
National Security Concerns
The reliance exclusively on the applicant’s assets, without comprehensive screening for criminal history or potential national security threats, introduces significant risks. Current immigration procedures for the grant of permanent residence incorporate stringent health examinations, criminal background investigations, and thorough verification of personal information to mitigate such risks. The omission or relaxation of these safeguards raises serious concerns regarding the potential compromise of national security.
Legal Issues Arising from the Concept of “Selling” Residency
Permanent residence status confers upon the holder a set of legal rights and obligations equivalent to those of a U.S. citizen, including access to certain benefits and the duty to comply with U.S. law. Treating residence as a commodity that can be obtained primarily through monetary payment raises fundamental legal and constitutional questions, particularly regarding the legitimacy and integrity of the immigration system. Such a “sale” of status could undermine principles of procedural fairness, legal fairness, and the longstanding statutory framework designed to protect national interests.