Donald Trump wants to replace the current EB5 green card with what he has termed a “gold card.” Per CNN:

President Donald Trump said on Tuesday the US would sell a “gold card” to wealthy foreigners, giving them the right to live and work in the US and offering a path to citizenship in exchange for a $5 million fee.

“We’re going to be selling a gold card,” Trump said from the Oval Office. “You have a green card. This is a gold card. We’re going to be putting a price on that card of about $5 million and that’s going to give you green card privileges, plus it’s going to be a route to citizenship. And wealthy people will be coming into our country by buying this card.”

Trump said the sale of the cards will begin in about two weeks and suggested millions of such cards could be sold.

My first instinct — as usual — was that Trump cannot do this without Congress. But, having perused the law, I’m now not so sure. The EB5 program was reauthorized in 2022, and it’s a masterpiece of lazy delegation. All in all, it contains 114 references to the administrative agency, allowing for the use of variables “designated by the Secretary of Homeland Security” and the creation of rules “in a manner and order established by the Secretary.” Where a self-respecting legislature would provide details, it instead says, “The Secretary of Homeland Security shall,” or “The Secretary of Homeland Security may,” or “If the Secretary of Homeland Security determines.” It remains to be seen whether this language is loose enough to permit the precise transformation that Trump wishes to effect. But, under our current system (which I think is unconstitutional), there certainly seems to be a lot of room.

That said, even if Trump can transmute the program into something else, his authority will remain limited. While vague in all manner of ways, the statute explicitly sets minimum-investment numbers, imposes detailed restrictions on many of those investments (limiting them to areas that are rural, or have high-unemployment, or require the development of infrastructure), and establishes mandatory oversight rules to avoid fraud and abuse. It also limits the number of green cards that can be handed out to around 10,000 annually (about 7 percent of the total number of employment-based visas) and sunsets the program completely in September, 2026. As a result, Trump cannot sell “millions” of “gold cards,” he cannot use the program as a no-strings-attached way of inviting rich people to move to the United States, and he cannot change the system to help advance his own domestic priorities. Effectively, he can make changes in degree, but not in kind.

If Trump does move ahead with this plan, it will be imperative for DHS to establish some strong guardrails. It would not, for example, be in the interest of the United States for the Chinese Communist Party to buy a thousand or so of these visas with government money, and thereby to insinuate a designated group of people into the United States — especially if the purpose of doing so was to take advantage of the “infrastructure” option within the investment matrix. (This is already illegal, per existing statute, but it would not be too hard to circumvent if the U.S. government were lax in its oversight.) Nor, in my view, would a sudden influx of Russian oligarchs improve the national character. It is, of course, already relatively easy for rich people to move to the United States, given that our system has categories for those who are exceptional within their field and for people who are being transferred between offices within the same company. But, while imperfect, there are inherent safeguards to those methods (fame, notoriety, a paper trail, businesses’ desire to keep on the right side of USCIS) that do not always obtain when the sole determining factor is having a lot of money. In 2022, when the EB5 program was renewed, it was already under fire for being corrupt and potentially dangerous. If the White House gets its reforms wrong — and, in so doing, makes its revised initiative attractive primarily to the wrong sort of people — it could poison the well quite quickly and spell the end of the idea for good.