Is Trump Administration's Updated "Gold Card" Plans to Takeover Employment-Based Immigration? An Update by Globevisa

I. Latest Developments of the Gold Card Visa

The Trump Administration released yet another eye-catching executive order on September 19, provided pivotal changes and some updates to his Gold Card visa that was first proposed in early 2025. By cross-referencing the official information from the White House and the statements made by Howard Lutnick, the Secretary of Commerce, during a telephone interview with American mainstream media reporting on the situation, the gold card could be included under the current EB-1A (individuals with extraordinary abilities) and EB-2 NIW (individuals with exceptional abilities seeking a national interest waiver) categories. [1][2]

The executive order mandates that relevant agencies and officials shall implement the Gold Card visa program within 90 days of its signing. The Gold Card visa program is regarded as a key component of federal immigration reform under the Trump Administration, alongside ongoing restrictions regarding the H-1B visa. As of September 22, 2025, the main development is the issuance of the executive order itself and the directives for implementation within the specified time frame of 90 days. As federal agencies prepare to carry out the order, further details are expected to emerge regarding the specific mechanisms, potential policy adjustments, and anticipated legal challenges at later dates. The U.S. Secretary of Commerce Howard Lutnick stated during a conference call with mainstream American media that the newly introduced Gold Card visa would become the dominant category among existing U.S. immigration visas. The plan is to replace the current EB-1 and EB-2 categories with the Gold Card visa, with planned annual quotas of 80,000. However, given the overall credibility of verbal statements from Trump Administration officials, the accuracy and reliability of Lutnick's statements remain questionable.

According to the Executive Order, the updated Gold Card is divided into two major categories:

(1) Individual Gold Card: Individuals are required to make an "unrestricted gift" of USD 1 million to the U.S. Department of Commerce.

(2) Corporate Gold Card: Corporations (and similar entities) can make an "unrestricted gift" of USD 2 million to the U.S. Department of Commerce on behalf of an individual.

Excerpt from the Executive Order:

During adjudication, these "unrestricted gifts" will be considered as the evidence of the individuals' "exceptional business ability and national benefit" and the Secretary of Commerce is to deposit the gifts into the Treasury. [3] Further, the Executive Order itself as well as the accompanying White House Fact Sheet both referenced subsections under 8 U.S.C. 1153(b), codified statutes of the Immigration and Nationality Act designating eligibility for EB-1A and EB-2 NIW applications. Taken together with the statements by Lutnick, this seems to suggest that Gold Card is intended to be a new visa pathway under the EB-1A and EB-2 NIW sub-categories. As of September 22, 2025, publicly available information is still insufficient to establish the precise nature of the Gold Card visa and how such visa shall be eventually implemented, as more information should be presented according to the Executive Order after 90 days. [4][5]

II. Legal Controversies Surrounding the Gold Card Visa

Similar to the slew of contentious executive orders released by the Trump Administration (e.g. the executive order intended to end birthright citizenship), this executive order as well as more detailed policy to be released in the next 90 days are likely to face intense legal challenges.

Possible legal challenges

(1) Violation of Congressional Authority

Despite the fact the U.S. presidents wield considerable influence over immigration policies through executive orders, such orders must operate within the legal bounds of the Constitution and Congressional authorization. The legal consensus in the United States is rather clear executive orders cannot create new statutes or repeal existing ones and they can only implement or interpret existing statutes. If an executive order attempts to bypass Congress and directly alter existing statutes, it risks exceeding the legitimate scope of executive authority, thus triggering extensive litigation and legal scrutiny from federal courts. A recent example of such overreach is Trump's executive order attempting to abolish birthright citizenship, which faced legal challenges from over 20 states and remains mired in lawsuits despite a controversial and somewhat favorable Supreme Court ruling, rendering it unenforceable in its current state.

Even though the executive order cites specific provisions of the Immigration and Nationality Act related to EB-1 and EB-2 visas, and in an attempt to dress up the order as an interpretation of existing statutes by redefining the monetary gifts as evidence of "extraordinary business ability and national interest," the order cannot replace the legislative process placed in the hands of Congress. The monetary gift denoted by the order is much more likely to be viewed as a significant change to the existing statutes rather than a mere interpretation or execution. As such, Trump's Gold Card executive order is highly likely to face a fate similar to his attempt to repeal birthright citizenship, entangled in a web of legal challenges and federal litigation.

(2) Potential Violation of the Administrative Procedure Act

Moreover, the Gold Card executive order has likely violated procedural requirements of the Administrative Procedure Act regarding transparency, public participation, and statutory consistency. According to the relevant provisions of the U.S. Administrative Procedure Act (APA) (5 U.S.C. §553) [6], federal agencies need to follow a formal rule-making process which includes public notice and a comment period when implementing policies that affect rights and obligations. The Gold Card program was announced overnight and without any public input or formal regulatory process. In addition, there are still many aspects of the Gold Card program that are unclear such as how the monetary gift can prove "exceptional ability" or how the program interacts with the existing EB-1 and EB-2 categories precisely. All of which can be argued as clear violations of APA procedures.

The current executive order does not explain why it bypassed the proper procedures for public notice or hearings, making it highly likely to face legal challenges from opposition groups. Federal courts may very well halt the implementation of the policy due to this apparent procedural violation.

(3) An Attempt to Redefine EB-1 and EB-2 Visas

Based on the currently available public information of the Gold Card program (the executive order itself and Lutnick's conference call with U.S. media), the Trump administration's intention could be replacing the EB-1A and EB-2 NIW subcategories or supplementing the existing subcategories with the Gold Card. It is still too early to draw a definitive conclusion as there are significant discrepancies between statements made by Lutnick and the wording of the executive order. This could be an indication of internal uncertainty by the Trump Administration regarding policy and actual implementation. What could be interpreted at this moment is a clear intent by the Trump Administration to overhaul U.S. visa programs by seemingly redefining "extraordinary ability" and "national interest" with monetary gifts, essentially allowing applicants to purchase eligibility through financial means. Therefore, this represents a substantive change in existing visa policy if implemented, and without Congressional legislation, any version of this policy is unlikely to be effectively implemented.

As of September 2025, the Republican Party holds a slim majority in both the House and the Senate, while still faces internal divisions and challenges in policy implementation.

Dissenting voices against certain aspects of the Trump Administration is mounting, as seen in internal divisions over the H-1B visa. Therefore, the actual implementation of this executive order remains highly uncertain even from a Republican point of view. The current landscape of bipartisan politics, societal divides, judicial oppositions, and the division of legislative and executive powers naturally present significant obstacles to the implementation of this executive order.

III. Possible Future Developments

The implementation of Trump Administration's Gold Card visa is almost certain to face significant and mounting legal challenges. Immigration experts and legal scholars in the United States have already anticipated a wave of lawsuits, with some sources suggesting that these legal actions could emerge as early as the end of September 2025. As with other immigration policies enacted through executive orders in the past, courts are highly likely to issue temporary restraining orders or preliminary injunctions to halt the program's roll-out. At the same time, opposition groups will actively pursue litigation to prevent the order from taking effect. These legal battles are expected to be prolonged, potentially spanning multiple levels of the federal court system and possibly reaching the U.S. Supreme Court. As a result, the ultimate legality of the Gold Card program may take a long time to be resolved, and during that period, the executive order itself will remain unenforceable. In addition, the mounting legal challenges may also prompt Congressional action, with Democrats led actions to explicitly prohibit similar programs after midterm elections. Even if the federal judiciary eventually upholds the executive order's legality (which is highly unlikely), the Gold Card's legal foundation would still rest solely on an executive order issued by the Trump Administration, meaning it could be overturned at any time by the next administration. In short, although the executive order has "taken effect" on September 19, the future implementation of the Gold Card program remains highly uncertain and is unlikely to proceed in the immediate future.

As such, based on the still limited information regarding Gold Card visa and our current analysis, Globevisa takes a cautiously optimistic stance as the situation is still developing. While the practical impact of the order may ultimately be limited, its issuance undeniably reflects the current administration's policy inclination towards immigration reforms. Therefore, while remaining cautiously observant, it is rather necessary to prepare any plans in advance. Being prepared is always an effective method to evade potential risks stemming from changes in immigration policies. If you are considering applying for EB-1A or EB-2 NIW visas, we highly recommend getting in touch with Globevisa for a professional evaluation. At the same time, we will continue to monitor the situation and provide timely and expert analysis.

[1] The White House, Presidential Actions: The Gold Card, September 19, 2025. https://www.whitehouse.gov/presidential-actions/2025/09/the-gold-card/

[2] The White House, Fact Sheet: President Donald J. Trump Launches the Gold Card Program, September 19, 2025. Fact Sheet: President Donald J. Trump Launches the Gold Card Program – The White House

[3] The White House, Fact Sheet: President Donald J. Trump Launches the Gold Card Program, September 19, 2025. Fact Sheet: President Donald J. Trump Launches the Gold Card Program – The White House

[4] The White House, Presidential Actions: The Gold Card, September 19, 2025. https://www.whitehouse.gov/presidential-actions/2025/09/the-gold-card/

[5] The White House, Fact Sheet: President Donald J. Trump Launches the Gold Card Program, September 19, 2025. Fact Sheet: President Donald J. Trump Launches the Gold Card Program – The White House

[6] 5 U.S.C. §553, https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section553&num=0&edition=prelim