Donald Trump cannot abruptly terminate EB-5, those who invest up to Sept 2026 are fully protected

MUMBAI: US President Donald Trump’s announcement of floating a new investment-linked immigration pathway – Gold Card has caused anxiety amongst the existing EB-5 investors who are in the process of getting a green card under this program. Indians caught up in a decades long employment linked green card who were contemplating opting for the investment-linked EB-5 route are doing a double take.
The entire process of obtaining an unconditional green card, for Indians, can take between 6-7 years, or on a more conservative estimate, up to ten years. Several who had invested feared that they will not get a green card, as this program would be terminated.
An investment of $800,000 for projects in Targeted Employment Areas (TEAs), which are rural and high-unemployment areas, and infrastructure projects, or $1.05 million if located elsewhere, is not cheap, even if relatively smaller than the $ 5 million requirement for the proposed Gold Card.
Their fear stemmed from Commerce Secretary Howard Lutnick’s statement, made while accompanying President Trump during the announcement of the Gold Card initiative. Lutnick indicated that the Gold Card would replace the existing EB-5 program for foreign investors, raising concerns that an executive order might bring the EB-5 program to an end.
Immigration experts told TOI that there is no cause for worry. Investments are typically made in the EB-5 program via regional centres. The current EB-5 Program remains fully authorized through the September 30, 2027 date.
TOI spoke to a cross section of immigration attorneys and EB-5 experts to decode what is in store for EB-5 investors. Here are the key takeaways:
The President can propose new immigration legislation, but only Congress can make new laws and amend existing laws. Kripa Upadhyay, immigration attorney said, “Trump cannotunilaterally end the EB-5 program. It was created by Congress in 1990 and is codified in the Immigration and Nationality Act. Any attempt to eliminate or replace it requires legislative action, an unlikely scenario in a divided Congress.”
Ishaan Khanna, President, American Immigrant Investor Alliance (AIIA) added “Should the Trump administration seek to end the EB-5 program, it would need its Republican allies in Congress to introduce a bill to do so. Such legislation would need to pass both houses of Congress, including the Senate, where standing rules require the invocation of “cloture” to limit debate and advance a bill to a final vote — else, the bill may be “filibustered.” Invoking cloture requires 60 votes, and Senate Republicans (many of them supporters of the EB-5 program) only number 53. Unless the administration can convince at least seven Democratic senators to vote in favour of such a bill (which is unlikely), if all senate Republicans support it, any legislation to abolish and/or replace the EB-5 program will never be passed.”
2. “EB-5 investors can be rest assured, for now, that the EB-5 program will remain active. Only Congress can terminate the EB-5 program, or refuse to reauthorize it in 2027. Until then, investors should not worry about the validity of existing investments or LPR status petitions — nor should prospective investors be deterred from the EB-5 process,” said Khanna.
3. Some investors are worried that the Trump administration will order US Citizenship and Immigration Services (USCIS) — which is an executive branch agency — to reduce or completely pause the processing of EB-5 petitions. “This is a valid concern, and, we believe that any such directives may be successfully challenged and enjoined in court, as it would be unlawful. AIIA will be at the forefront of any litigation against USCIS regarding actions adverse to EB-5 investors,” said Khanna.

Under the EB-5 program, individuals can apply for lawful permanent residence (green card) in the US if they make the necessary investments and create at least ten permanent full-time jobs for US workers. The investors are granted conditional permanent residence (a conditional green card is given) for themselves, spouse, and children below 21. After two years, they have to apply for the lifting of the ‘conditions’. If approved, they get an updated green card with no more conditions, and they and their dependent family members can continue to permanently live and work in the US.
Not more than 10,000 EB-5 visas can be allotted each year. Occasionally, there are more EB-5 visas available if any are unused on some other green card categories. Further, there is a country cap of 7%. However, generally, if a country uses less than its allotted percentage, the remaining visas are made available to investors from other countries.
EB-5 offers two routes of investments; one is the direct or standalone route where the investor invests directly into a job-creating business. The other is via investments in recognized Regional Centers, which in turn sponsor job-creating projects. Most of the investments (upwards of 90%), are typically routed via Regional Centers.
The minimum investment amount is $800,000 for projects in Targeted Employment Areas (TEAs), which are rural and high-unemployment areas, and infrastructure projects, or $1,050,000 if located elsewhere. Plus, there will be administration fees paid to the Regional Centre, legal fees and USCIS filing fees.