26/02/2025
UPDATE ON EB-5 PROGRAM
President Trump has announced plans to end the EB-5 program in favor or the 'Trump Gold Card' program which will provide “green card plus benefits,” including a path to citizenship for $5M for ultra high net worth individuals in order to help reduce the country's deficit. Further details regarding the proposal are set to be released within the next 2 weeks.
Some key considerations:
-An act of Congress, such as the Immigration and Nationality Act, cannot be disregarded or overridden by the president. Congress has the power to enact immigration rules that regulate naturalization, exclusion, and admission. The Supreme Court has affirmed over and again that Congress has "plenary" authority over immigration under Article 1, Section 8, Clause 18. Under the EB-5 Reform and Integrity Act of 2022 ("RIA"), Congress reauthorized the EB-5 Program, which is now in effect. The expiration date is September 30, 2027. A congressional measure, such as the current EB-5 scheme, cannot be overturned by the president. If the Trump administration were to genuinely try to terminate the EB-5 program, a bill would have to be introduced by its Republican congressional partners. In order to avoid becoming "filibustered," any legislation would have to pass both chambers of Congress, including the Senate, where standing rules mandate the use of "cloture" to restrict debate and move a bill to a final vote. There are just 53 Senate Republicans, many of whom support the EB-5 program, and 60 votes are needed to invoke cloture. Any legislation to repeal and/or replace the EB-5 program will never be passed unless the administration can get at least seven Democratic senators to support it (which is improbable), even if all Senate Republicans support it.
-The Immigration and Nationality Act must be amended in order to alter Congress's sole authority over the distribution of employment-based green card numbers. Only Congress has the authority to enact new laws and change current ones, although the president may suggest new immigration legislation.