Summary
- President Trump’s Gold Card program is an intriguing and out-of-the-box idea that would allow aliens who are able to make a substantial payment to the U.S. Treasury to qualify for 1) the current 1st preference employment-based green card category for aliens with extraordinary ability in the sciences, arts, education, business, or athletics, and 2) the current 2nd preference category for aliens with exceptional ability in the sciences, arts, or business. Under the Immigration and Nationality Act, 80,080 green cards are generally available each year for these programs combined.
- To qualify, aliens would have to be able and willing to make a $1 million “gift” payment to the U.S. Department of Commerce, or, alternately, employers could make a gift of $2 million on behalf of each alien. However, it is not clear how the gift could by itself serve as sufficient evidence of exceptional business ability for purposes of the 1st preference category, which must be “demonstrated by sustained national or international acclaim”.
- The gifts will be utilized by the Department of Commerce to promote commerce and American industry.
- Many approved Gold Card recipients will have to wait years before green cards become available, as demand has long outstripped the available supply of 1st and 2nd preference green cards, especially for nationals of the People’s Republic of China and India, and because per-country limits prevent more than a certain percentage of green cards in each preference category from going to natives of any one country each year.
On Friday, President Trump issued an Executive Order (EO) entitled “The Gold Card” directing Secretary of Commerce Howard Lutnick to establish a “Gold Card” program. The EO stated that the program “will facilitate the entry of aliens who have demonstrated their ability and desire to advance the interests of the United States by voluntarily providing a significant financial gift to the Nation.”
The Trump Gold Card program is an intriguing and out-of-the-box idea that would allow aliens who are able to make a substantial payment to the U.S. Treasury to qualify for the current employment-based 1st and 2nd preference immigrant visa categories for aliens with extraordinary or exceptional ability, which are generally allocated about 80,000 green cards a year.
The 1st and 2nd Preference Employment-Based Immigrant Visa Categories
As to the 1st preference category, § 203(b)(1) of the Immigration and Nationality Act (INA) provides in part for immigrant visas for aliens:
[who] ha[ve] extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation … [who] seek[] to enter the United States to continue work in the area of extraordinary ability, and … [whose] entry into the United States will substantially benefit prospectively the United States.
As to the 2nd preference category, § 203(b)(2) provides in part for immigrant visas for aliens:
who because of their exceptional ability in the sciences, arts, or business, will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States, and whose services in the sciences, arts, professions, or business are sought by an employer in the United States.
When the Department of Homeland Security (DHS) “deems it to be in the national interest”, it may waive the 2nd preference category’s requirement “that an alien’s services in the sciences, arts, professions, or business be sought by an employer in the United States.”
The INA generally allocates to each of the 1st and the 2nd preference employment-based categories 28.6 percent of the employment-based green card program’s annual cap of 140,000, or 40,040 visas a year for each category.
The Gold Card Program
The Gold Card program’s website states that “[f]or a processing fee and, after DHS vetting, a $1 million contribution, [an alien can] receive U.S. residency in record time with the Trump Gold Card.” The EO provides that an alien who makes an “unrestricted gift” to the Commerce Department can establish eligibility for the program, and that “[t]he requisite gift amount shall be $1 million for an individual donating on his or her own behalf and $2 million for a corporation or similar entity donating on behalf of an individual.”
The website states that “[a]s appropriately determined by [DHS] and subject to availability, an applicant receives lawful permanent resident status as a[] … visa holder” under the 1st or 2nd preference employment-based immigrant visa programs, and that the gift will “provide sufficient evidence that the individual will substantially benefit the United States.” President Trump’s EO provides that DHS and the State Department [DOS] “shall, consistent with applicable law, treat the gift … as evidence of eligibility under [the 1st preference category] of exceptional business ability and national benefit under [the 2nd preference category]”. However, it is not clear how the 1 or 2 million dollar gift could by itself serve as sufficient evidence of exceptional business ability for purposes of the 1st preference category, which must be “demonstrated by sustained national or international acclaim”.
The EO additionally provides that “[i]n adjudicating visa applications”, DHS and DOS “shall, consistent with applicable law, treat the gift … as evidence of … eligibility for a national-interest waiver”, allowing an alien to receive a 2nd preference green card without an employer sponsor.
The green cards that Gold Card recipients receive will come out of the available number of immigrant visas allocated by the INA for the 1st and 2nd preference categories, as the EO states that the program will operate “consistent with applicable law … including the limits on the numbers of visas specified” for the employment-based immigrant visa categories.
However, on Friday, the Wall Street Journal reported that “Commerce Secretary Howard Lutnick said that [the Gold Card] will replace other similar employment-based paths to permanent residency programs within a month”, that “they would be suspended in order for the new system to work.” It is not clear how Secretary Lutnick’s statement can be squared with the language of President Trump’s EO. In any event, as I have written, given the Constitution’s grant of all legislative power to Congress, Congress’s plenary power over immigration, and Congress’s very probable supremacy over the Executive Branch in terms of deciding the immigration law of the U.S., it seems unlikely that a gold card program unmoored from the INA would survive Supreme Court scrutiny.
The Gold Card program will not affect the current investor immigrant visa category at § 203(b)(5) of the INA, the EB-5 program. However, the EO states that Secretaries of Commerce, State, and Homeland Security shall “[c]onsider expanding the Gold Card program to visa applicants under [the investor visa program].” That could not be done under current law, given the voluminous and specific requirement built into the investor visa program.
Waiting Lists
The Gold Card website states that “[a]pplicants must be eligible for lawful permanent resident status, admissible to the United States, and a visa must be available”, and, as I noted, the EO provides that the Gold Card program will be subject to “the limits on the numbers of visas specified” for the employment-based immigrant visa categories. Additionally, approved Gold Card beneficiaries will not be able to jump in front of the line for green cards with other aliens with approved 1st and 2nd preference petitions, as § 203(e) of the INA mandates that “[i]mmigrant visas made available under subsection (a) [family-sponsored] or (b) [employment-based] shall be issued to eligible immigrants in the order in which a petition in behalf of each such immigrant is filed”.
Consequently, many approved Gold Card recipients will have to wait years before green cards actually become available, as demand has long outstripped the available supply of 1st and 2nd preference green cards, especially for nationals of the People’s Republic of China (PRC) and India, and § 202 of the INA prescribes per-country limits that prevent more than a certain percentage of green cards in each preference category from going to natives of any one country each year.
According to DOS’s October 2025 Visa Bulletin and its “Annual Report of Immigrant Visa Applicants in the Family-sponsored and Employment-based preferences Registered at the National Visa Center as of November 1, 2023”, and U.S. Citizenship and Immigration Service’s (USCIS) ”Form I-140, I-360, I-526 Approved EB Petitions Awaiting Visa Final Priority Dates (Fiscal Year 2025, Quarter 2)”:
For the 1st preference category, green cards are currently available for all natives of most countries with approved petitions, but for natives of the PRC, green cards are now only available for those with “priority dates” (generally, petition filing dates) earlier than December 22, 2022, and for natives of India, earlier than February 15, 2022.
There are 30,321 aliens on DHS’s 1st preference waiting list (principals, adjusted to 60,945 to account for an average of 1.01 derivatives in 2023 (spouses and minor children)) – including 18,462 natives of India (adjusted to 37,109) and 11,858 natives of the PRC (adjusted to 23,835) – and 20,582 on DOS’s waiting list (principals and derivatives), of whom 9,787 are natives of the PRC and 2,426 are natives of India.
For the 2nd preference category, green cards are currently only available for natives of most countries with approved petitions with priority dates earlier than December 1, 2023, but for natives of the PRC, with priority dates earlier than April 1, 2021, and for natives of India, earlier than April 1, 2013.
There are 397,103 aliens on DHS’s 2nd preference waiting list (principals, adjusted to 798,177 to account for derivatives) – including 331,561 natives of India (adjusted to 666,438) and 36,172 natives of the PRC (adjusted to 72,706) – and 75,567 on DOS’s waiting list (principals and derivatives), of which 28,921 are natives of India and 13,815 are natives of the PRC.
Where Will the Money Go?
President Trump stated at a press conference on Friday that aliens’ and employers’ gifts would be used to “reduce taxes” and “reduce debt”. (Video at 1:34:59.) However, the EO provides that “[t]he Secretary of Commerce shall … use the[ gifts] to promote commerce and American industry, consistent with the statutory authorities of the Department of Commerce….” Further, the EO provides that the gifts will be “unrestricted gift[s] to the Department of Commerce under 15 U.S.C. 1522, which states that:
The Secretary of Commerce is hereby authorized to accept, hold, administer, and utilize gifts and bequests of property, both real and personal, for the purpose of aiding or facilitating the work of the Department of Commerce. Gifts and bequests of money and the proceeds from sales of other property received as gifts or bequests shall be deposited in the Treasury in a separate fund and shall be disbursed upon order of the Secretary of Commerce. Property accepted pursuant to this provision, and the proceeds thereof, shall be used as nearly as possible in accordance with the terms of the gift or bequest. [Emphasis added.]