Shockwaves reverberated across the EB-5 community this week when President Donald Trump said at a media event that he planned to introduce a “Gold Card” to replace the EB-5 program. He said that he would do so through an executive order.
Is this how immigration laws are enacted in the United States? In short, no. While each branch of government in the U.S. has a role to play in immigration matters, the role of enacting laws pertaining to immigration has been the sole domain of Congress, the legislative branch.
The Role of the Legislative Branch
In the United States, the power to create laws pertaining to immigration primarily lies with Congress. The U.S. Constitution grants Congress the authority to establish a uniform rule of naturalization (Article I, Section 8). This includes creating and modifying laws regarding who can enter, stay, or become a citizen of the country.
This power has been reaffirmed by the U.S. Supreme Court, the highest court in the judiciary branch, for more than 100 years. The Supreme Court has consistently upheld that Congress has the constitutional authority to create and regulate immigration laws. The Court has interpreted the Constitution, particularly Article I, Section 8, which grants Congress the power “to establish a uniform Rule of Naturalization,” as giving Congress broad authority over immigration matters.
In cases such as Chy Lung v. Freeman (1875) and Fong Yue Ting v. United States (1893), the Court affirmed Congress’s power to regulate immigration, including the ability to set rules for who can enter the country, how they can stay, and the process for naturalization. The Court has reinforced this view over time, recognizing Congress’s broad and exclusive authority over immigration and naturalization.
The Role of the Executive Branch
While Congress makes the laws, the executive branch, headed by the President, is responsible for enforcing them. The Department of Homeland Security (DHS), particularly through agencies like U.S. Citizenship and Immigration Services (USCIS) and U.S. Customs and Border Protection (CBP), plays a key role in administering and enforcing immigration laws.
What Would it Take to Change or Eliminate EB-5?
The latest incarnation of the EB-5 Regional Center program was established by the EB-5 Reform and Integrity Act of 2022 (RIA). The bill passed through both chambers of Congress (House of Representatives and Senate) as part of a government spending bill that was then signed into law by then President Joe Biden. The RIA, if not reauthorized by Congress, would expire on September 30, 2027.
In order to alter or eliminate the EB-5 program prior to its September 30, 2027, expiration date, action from Congress would be required. As with the RIA, this action would likely not come in the form of a standalone bill, but would rather be part of a government spending bill.
Funding for the government is set to expire on March 14, and a new spending bill must be signed by then in order to avoid a government shutdown. At the time of publication, both the House and Senate have passed their own spending bills, but neither contains any language pertaining to the EB-5 program.
Due to differences between the House and Senate bills, the two chambers are in the process trying to reconcile the two bills (making them identical). It is theoretically possible that something pertaining to be Eb-5 could be inserted into each bill, but that seems unlikely as avoiding a government shutdown appears to be the focus at the moment. Government spending bills occur ona somewhat frequent basis.
What if an Executive Order Called for the Elimination of EB-5?
At the time of publication, the President has not issued an executive order pertaining to a “Gold Card” or “EB-5”. If an executive order were to be issued that called for the elimination of EB-5, it would almost certainly be met by many lawsuits seeking to invalidate the executive order and asking for an injunction to prevent the order form taking effect while litigation transpired.
At this point, EB-5 remains the law of the land and investors and stakeholders can take some comfort in the fact that the power to create and regulate immigration has been well settled for some time.
