EB-5 vs Gold Card Visa: Why Established Investment Immigration Programs Win

In an interview with American Bazaar, JTC’s Jill Jones breaks down the EB-5 vs Gold Card visa debate, and explains how mounting legal challenges reveal why a longstanding, rules-driven investment immigration program like EB-5 outperforms an uncertain executive proposal.

Gold Card Visa Program: Launch, Legal Challenges, and Uncertainty

Ever since the initial announcement of the Gold Card visa program, there have been whispers about whether this program will replace EB-5 immigrant investor program. It took a long time for anything to happen, but eventually, a September executive action got the ball rolling, and in December, the program was officially launched.

Since then, there have been more hiccups. A recent lawsuit from the American Association of University Professors (AAUP) has accused the program of being “unlawful,” stating that it “converts the visas into revenue-generating commodities” and creates a “paid fast lane” in violation of the Administrative Procedure Act and Immigration and Nationality Act.

AAUP President Todd Wolfson said the Gold Card program privileges “wealthy immigrants over others,” and Robert Cornish said this is “likely the first of many lawsuits that will address the Gold Card.”

We don’t yet know what the result of this lawsuit (or future lawsuits) will be, but it’s clearly proven more difficult than the administration anticipated to start a new investment immigration program from scratch. Given these difficulties, a new article in The American Bazaar asks: “what should a lawful, functioning investment immigration program actually look like in the United States?”

What a Functional Investment Immigration Program Looks Like: The EB-5 Model

If you’ve been reading our content, you know the answer: a functional program already exists, in the form of the EB-5 Immigrant Investor Program.

To understand how EB-5 provides a template for immigration by investment programs, and what has led to its success, American Bazaar asked JTC Head of Specialty Administration/General Counsel – USA Jill Jones to provide her expertise.

“A lawful and functional investment-based immigration program must resemble other investments made in the US that do not carry an immigration component,” said Jones. “Making a donation to the US Treasury is not an investment, it is a purchase. There is no expectation of getting a return on those funds or even getting the initial investment back.”

While the Gold Card visa involves a non-refundable donation to the US Treasury, the EB-5 program involves at-risk capital investments in job-creating enterprises, many of which operate in rural communities and other areas that have traditionally struggled to attract capital, known as Targeted Employment Areas (TEAs). Over decades, EB-5 investment has driven billions of dollars of investment toward American communities, creating jobs and stimulating economic activity.

EB-5 Success Stories and Program Integrity

“Despite the amount of media attention on a few failed EB-5 projects over the years, there are far more instances of successful projects bringing catalytic change to communities in the US. Ultimately, the Regional Center Program has existed this long, because it is working,” said Jones.

Unlike the Gold Card visa, which was created through executive action, the EB-5 program was created by Congress, and the Regional Center Program requires periodic Congressional reauthorization. This has meant continual updates to program rules and requirements, helping to improve compliance checks that prevent the use of the program by bad actors.

“Today’s version of EB-5 is far more sophisticated than it was in early years,” said Jones. “Projects are tasked with providing transparency, enhanced due diligence, and accountability though requirements for reporting and oversight that are designed to enhance the integrity of the offerings.”

EB-5 vs Gold Card Visa: Why Program Stability Matters for Investors

For investors evaluating investment immigration options, the structural difference between EB-5 and the Gold Card matters enormously. Jones explained the distinction clearly:

“Executive-driven immigration can be changed or terminated by a unilateral executive action. This could come from the very next administration, or even from the very same administration that created it, should the circumstances change,” said Jones. “When the program is operated within a strict statutory framework, it is easy to see that proper due diligence is and has been performed, and the benefits the program is intended to provide have truly been realized.”

While the Gold Card visa program may seem simpler, it has plenty of issues that have yet to be resolved. We don’t know how funds will be used, how much revenue will ultimately be generated, or whether the mechanisms meant to ensure funds come from lawful sources will be sufficient.

The EB-5 program, on the other hand, has had decades to develop sophisticated methods for ensuring lawful source of funds and proper oversight once capital is invested. And unlike with the Gold Card, we know how EB-5 investment funds are being used to benefit the country. As Jones summed it up, while EB-5 has more complex compliance and due diligence issues, it also has more to offer the American people.

“The EB-5 Program is not only an immigration program but also a job creation program.”

Those jobs are worth fighting for, which is why JTC is leading the charge for permanent reauthorization of the Regional Center Program so EB-5 can continue to aid American communities for years to come.

Read the full interview in American Bazaar