In advance of the 90-day deadline stipulated under President Trump’s Executive Order No. 14351 (the "Executive Order"), the Department of Homeland Security, through United States Citizenship and Immigration Services ("USCIS"), published and distributed to the Office of Management and Budget (the "OMB") a draft of a new Form I-140G and instructions related thereto, which would be used by applicants seeking to apply for lawful permanent residence in the United States under the Gold Card Program.
As part of the submission to the OMB, USCIS seeks to secure emergency approval of the application process such that it can meet the December 18, 2025 deadline in the Executive Order. Notably, this path to seeking emergency approval means that there is not yet a notice published in the Federal Register as is the norm for such application processes. Subsequent to securing the OMB approval, however, USCIS will then go through the regular Paperwork Reduction Act approval process, which would include an opportunity for the submission of public comments within six months of the OMB approval.
When the Trump Administration first announced the creation of the Gold Card Program, we questioned what role USCIS would play as it appeared, based on the initial discussions, that the Gold Card Program would be administered by the Department of Commerce. This is important because other than the Department of State which, among other actions, grants visas to foreign nationals abroad, the only other agency that has experience adjudicating immigration in the United States is USCIS.
Interestingly, the proposed Form I-140G is quite similar to USCIS’s Form I-526E, the Immigrant Petition by Regional Center Investor that is used by foreign nationals seeking residency benefits under the EB-5 Program. It also appears, based on the information the draft Form I-140G will request, that the Investor Program Office, which adjudicates all things EB-5, had a hand in the preparation of the draft Form I-140G and corresponding instructions.
This being said, as we analyzed previously (see https://www.saul.com/insights/blog/gold-card-program-what-you-need-know), the Gold Card Program differs from the EB-5 Program in many significant respects, not only with regard to the differential in the required capital amount. One of the most fundamental distinctions is that EB-5 is a Congressionally authorized, permanently codified immigrant visa category under INA §203(b)(5), which underscores the continued strength and stability of the EB-5 Program. In contrast, the Gold Card Program was established by an Executive Order, which could be modified, suspended, or rescinded by a future administration without the need for congressional action, which presents long-term uncertainty for prospective applicants. Additionally, the EB-5 Program is geared toward an investment in a special purpose entity that will utilize the proceeds for the development of a project that will in turn create jobs, and is subject to future redemption on the basis of the success of the underlying project; the proceeds under the Gold Card Program are, as described in the draft Form I-140G, a "gift" to the United States. What is also notable is that while the EB-5 Program allows for the petitioner, along with the petitioner’s spouse and unmarried children under the age of 21, to secure a green card through a qualifying investment, the draft Form I-140G provides that the required "gift" amount will be $1 million "per person, including any accompanying spouse or children."
Another key difference, which has now been solidified by the publication of the draft Form I-140G, is that Gold Card Program recipients will secure an immigrant visa through Section 203(b)(1)(A) of the Immigration and Nationality Act (the "INA"), which is known as the EB-1 Program, or through Section 203(b)(2)(B) of the INA, which is known as the EB-2 Program, and specifically under the National Interest Waiver ("NIW") component of the EB-2 Program. This is in contrast to the EB-5 Program, which as a reminder is Congressionally authorized and has a dedicated reserve of visas under Section 203(b)(5) of the INA.
What remains unclear is exactly how USCIS intends to reconcile adjudication standards under the EB-1 and NIW requirements for Gold Card Program applicants, since they require significant qualifications based on educational background, career path, and other factors. For example, the EB-1 Program is geared to the equivalent of C-suite executives at multinational companies, while the NIW is for applicants who have advanced educational degrees or "exceptional abilities" in certain fields that are in the national interest of the United States. The draft Form I-140G, however, is heavily focused on the underlying source of the applicant’s funds that will be gifted to the United States. Therefore, putting these applicants through either the EB-1 Program or the EB-2 Program would be at odds with their eligibility requirements.
Relatedly, because there are a finite number of visas and a country cap on how many visas can be allocated to an applicant under any of the employment-based immigration programs, the two countries that have accounted for the highest demand in the EB-1 Program and the EB-2 Program (and, incidentally, the EB-5 Program) are India and Mainland China. As a result, the EB-1 Program and the EB-2 Program have a lengthy backlog for applicants born in either country. If demand for the Gold Card is as high as Commerce Secretary Lutnik has suggested, then the existing backlogs for applicants from both India and Mainland China may worsen, because the number of visas available would be affected and would increase the wait times for pending visa grants on existing applicants from India and Mainland China, whose petitions have been pending for years.
From a competitive standpoint, while the Gold Card Program may not be attractive to many applicants born in India or Mainland China, it appears it will actively compete with the EB-5 Program for applicants born elsewhere. Presently, the EB-5 Program is quite popular in Latin America, Southern and West Africa, and parts of Europe. Given the potential for faster adjudication under the Gold Card Program, and perhaps longer processing times under the EB-5 Program (especially as USCIS officers from the IPO might be tapped to lead a "Gold Card Program Office"), applicants from other parts of the world who can afford the gift amount might gravitate to the Gold Card Program, assuming they are not interested in recouping their investment principal as they would be eligible to do under the EB-5 Program if the underling project is successful.
Moreover, the EB-5 Program’s long and well-established track record provides a level of predictability and stability that the Gold Card Program cannot match, especially after the passage of the EB-5 Reform and Integrity Act of 2022, which strengthened compliance, oversight, and investor protections. With over three decades of adjudications, extensive federal guidance, established industry practices, and clear statutory oversight, the EB-5 Program rests on a solid and reliable foundation. In contrast, the Gold Card Program is advancing at a pace that raises concerns about how it will function in practice, how key eligibility requirements will be implemented, and whether it can withstand legal or operational challenges. In the meantime, while questions remain about the Gold Card Program, the EB-5 Program continues to grow at a rapid pace. The Saul Ewing team remains actively involved in billions of dollars of EB-5 transactions and is ready to assist applicants under the EB-5 Program and the Gold Card Program.
