Trump’s Gold Card and the Limits of Immigration Law: Can Money Buy Extraordinary Ability?

Some thoughts on the Trump Gold Card...

After a few weeks to mull over the strategy and legality of the Gold Card - and after years serving at USCIS OCC on this very portfolio - I have many more questions than answers.

A couple of weeks ago, when President Trump signed an executive order announcing the official launch of the Gold Card, he indicated it would cost $1 million and "grant residency" in "record time." The announcement indicates that Gold Card recipients who are able to make a substantial payment to the U.S. Treasury will 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.

But the EB-1A requirements are statutory...demonstrate sustained national or international acclaim...achievements recognized through extensive documentation. How does a $1 million dollar payment equate to the statutory requirement of EB-1A extraordinary ability?

NIW is a little easier. It is expressly discretionary. If a foreign national meets the advanced degree and/or exceptional ability then the waiver standard is "what is nationally important." Can an argument be made that such a substantial investment in the United States is "nationally important?" Can the Administration say that by policy the agency will exercise that discretion favorably in the NIW context? That bridge is not as far to cross.

Finally, the President promised permanent residency via the Gold Card in "record time." Will that affect the existing line of individuals waiting for their EB-1A/EB-2 visa to become current? How will USCIS even track that?

While we have more questions than answers, we do see concrete signs that the Administration is moving forward with a roll-out.  Stay tuned...