The long-awaited gold card has arrived. There is now an official government form, a website, and an address for filing an application. There are also many questions that may not be answered for at least many months regarding how the gold card process will actually work and whether it will be challenged in court.
It is important for our clients to understand that the gold card is a result of an executive order, not a law passed by Congress. There are no regulations passed after notice and comment to govern the program as required by the Administrative Procedure Act. The government form did not go through normal notice and comment procedures. The fee was not set as required by law. What all of this means is that the entire program may be subject to invalidation if there is a federal court challenge. It also means that the entire program could be invalidated by a future executive order, without the need for legislation. As long as clients understand that, we are ready to assist them with gold card filings.
Timing is an important issue for many investors. There are two elements to timing. One is the government processing time, and the other is the quota backlogs. The government has promised very quick processing times for the gold card. However, gold card applications fall within either the EB-1 Extraordinary Ability or the EB-2 National Interest Waiver quota category. There is presently no quota backlog for any country for an EB-5 application based on an investment in a rural area or a high unemployment area. To the contrary, EB-2 has a quota backlog for all countries, a multiple-year quota backlog for China, and a multiple-decade quota backlog for India. EB-1 presently has a quota backlog only for China and India. It is likely that, with the addition of gold card applicants into EB-1 and EB-2, the quota backlog that presently exists will get longer. The result of all of this is that, even though the gold card applications may get processed more quickly, the time to get a gold card may be longer than the time to get a green card through EB-5.
The distinction in the treatment of immediate family members between EB-5 and the gold card is noteworthy. One EB-5 investment results in all qualifying dependents getting a green card. For the gold card, each dependent must make a separate $1 million donation to the US government. I should mention that this requirement may be the subject of litigation since, by law, all EB-1 and EB-2 dependents are entitled to permanent residence as long as the principal qualifies.
One unknown is the issue of whether concurrent adjustment of status is available for gold card applicants. The answer should be yes for EB-1 applicants not from China and India because the quota is current. However, language in the new I-140G form appears to limit gold card applicants to consular immigrant visa processing. Is that an error or intentional? Presumably, this and other questions will be answered in the near future.
Many of our clients are evaluating whether the gold card or EB-5 is a better option for them. For that reason, I have prepared the below chart to analyze some of the key differences between the two programs. I note that investors have some time pressure in making this decision because September 30, 2026 is the deadline for EB-5 regional center investors to be grandfathered in the unlikely event that the regional center EB-5 program is not extended after its present expiration date of September 30, 2027.
| EB-5 | Gold Card |
|---|---|
| $800,000 investment (if TEA) | $1 million donation |
| Expect return of investment (at risk) | No return of investment |
| Includes derivatives (spouse and minor children) | Each derivative requires separate $1 million donation |
| Filing fee of $4,675 for entire family | Filing fee of $15,000 per family member (example: $60,000 for family of 4) |
| No quota backlog in EB-5 for TEA investments (quota backlog may develop in the future) | Quota backlog in EB-1/2 (will likely increase after gold card investors added) |
| Expedited (priority) processing for rural projects only | Expedited processing promised; delays in consular immigrant visa processing likely |
| Lawful source of funds required for principal investor only | Lawful sources of funds required for each family member (example: $4 million for family of 4) |
| Conditional residence; requires condition removal for permanent residence | No conditional residence (gold card is permanent residence) |
| Job creation required | No job creation required |
| Taxed on worldwide income | Taxed on worldwide income |
| Detailed statute and regulations | No statute or regulations |
| Investors grandfathered through September 30, 2026 | Risk of litigation because of no statute or regulations (may invalidate gold card) |
| Can only be changed by legislation | Can be eliminated by executive order |
| Concurrent adjustment of status available (including employment and travel documents) | Adjustment of status may not be available according to government form, significantly limiting ability to stay, work or travel while the case is pending |
If you are interested in learning more about pursuing a gold card, please reach out to a member of the Klasko Investment Immigration Team or request a consultation here.
The material contained in this alert does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.
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