The EB-5 Immigrant Investor Program, created in 1990 under the Immigration Act, provides a pathway for foreign nationals to obtain U.S. residency through investments in American businesses that generate jobs. Yesterday, President Donald Trump proposed a new immigration initiative, introducing a “gold card” visa that would grant wealthy foreign nationals U.S. residency and a pathway to citizenship in exchange for a $5 million investment. This proposal aims to replace the existing EB-5 Immigrant Investor Program. While this program is subject to scrutiny, it is important to clarify why the president cannot unilaterally modify or terminate it without legislative action from Congress or replace it with other immigrant investment models.

Congressional Authority Over Immigration Law

The U.S. Constitution grants Congress the power to regulate immigration laws, including programs like EB-5 (see Article I, Section 8 of the Constitution), and the Supreme Court has consistently reaffirmed this power (see, e.g., Fiallo v. Bell, 1977). The Immigration and Nationality Act (INA) governs these policies, which includes the structure of visa categories, eligibility criteria, and investment requirements under the EB-5 program. As such, any fundamental changes to the program would require an amendment to the INA, which only Congress can enact. The president’s role in immigration policy, while significant in areas of enforcement and policy interpretation, does not extend to altering or terminating visa programs established by Congress. In 2022, Congress reauthorized EB-5 through 2027 under the EB-5 Reform and Integrity Act (RIA), meaning any attempt to dismantle the program would require new legislation — not an executive order.

Limits on Executive Power

While the president oversees immigration agencies such as U.S. Citizenship and Immigration Services (USCIS), executive authority is confined to administering and enforcing laws as they are written. The president may direct how immigration laws are implemented or prioritize certain enforcement strategies but cannot create new laws or eliminate existing ones. This separation of powers ensures that changes to programs like EB-5 cannot occur at the whim of a single branch of government.

For example, any alterations to investment thresholds, visa allocations, or job creation requirements under the EB-5 Program must be passed through the legislative process, which involves both chambers of Congress. Even if the president disapproves of the program, without Congress enacting legislation to terminate or reform it, the program will remain intact. Moreover, any new visa program, such as the proposed "gold card," would generally require congressional approval to become law.

Executive Orders vs. Legislative Power

Executive orders and policy memos can shape the way the EB-5 Program is executed, such as altering processing priorities or tightening enforcement measures, but they cannot fundamentally alter or dissolve the program itself. Any attempt by the president to terminate EB-5 without congressional involvement would likely face legal challenges, as it would be considered an overreach of executive power.

Potential Legal Challenges

When faced with challenges to unilateral executive actions regarding immigration policy, courts have historically upheld the principle that significant changes to immigration policy require legislative action. Trump has faced significant legal challenges to his executive orders on immigration, with courts frequently ruling that his actions overstep the authority granted to the executive branch.

• Refugee Admissions Suspension - In January 2025, Trump issued an executive order suspending the U.S. refugee resettlement program. This action was challenged by refugee aid organizations, leading to a federal judge in Seattle issuing a preliminary injunction. The judge determined that the executive order likely violated the Refugee Act of 1980, the Administrative Procedure Act, and the Fifth Amendment's due process clause, emphasizing that the president's authority has limits and cannot override laws passed by Congress.
• Birthright Citizenship - In January 2025, Trump signed an executive order attempting to end birthright citizenship for children born in the U.S. to unauthorized immigrants and certain legal immigrants. This order faced immediate legal challenges, with multiple federal judges issuing preliminary injunctions blocking its enforcement. The courts ruled that the executive order was likely unconstitutional, as it sought to eliminate a fundamental right protected by the 14th Amendment, which grants citizenship to all persons born or naturalized in the United States.
• Asylum and Immigration Enforcement - Trump's executive orders aimed at curbing asylum claims and enhancing immigration enforcement have also encountered legal obstacles. For instance, an executive order suspending the entry of undocumented migrants under any circumstances, citing an "invasion," has been challenged in court. Critics argue that such actions violate U.S. treaty obligations related to the protection of refugees and overstep the president's constitutional authority.

These legal challenges underscore the ongoing tension between executive actions and judicial oversight in the realm of immigration policy. The courts have consistently emphasized the need for executive actions to align with constitutional principles and legislative intent, reinforcing the system of checks and balances inherent in the U.S. government. While the president controls immigration enforcement, he cannot override a federal statute. Any executive action targeting EB-5 would likely face immediate legal challenges, as courts have blocked similar overreaches in the past (see also DHS v. Regents of the University of California, 2020).

Prospective EB-5 Investors

For prospective EB-5 projects and investors, it is an excellent time to apply through the EB-5 Program, and many benefits remain in place. Under the Department of State’s upcoming “Visa Bulletin,” all nationalities, including Indian- and Chinese-born nationals, remain current through certain expedited regional center projects and can therefore still take advantage of quick processing times and fast green card issuance. 

Conclusion

The EB-5 Program is part of the broader immigration framework established by Congress. While the president can influence the administration of the program, any effort to modify or terminate it requires the action of Congress. The legislative process ensures that significant changes to immigration programs, such as EB-5, are subject to debate and oversight, preserving the balance of powers as outlined by the U.S. Constitution. While the president can propose new immigration policies, the creation of a new visa program like the "gold card" would require congressional approval to ensure its legality and alignment with existing immigration laws. Without such legislative action, the president cannot unilaterally enact the proposed "gold card" visa program.

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