(WASHINGTON, D.C.) — For wealthy foreign nationals and U.S. companies weighing the Trump administration’s new “Gold Card visa” route to permanent residence, the immediate defense strategy is simple but urgent: treat every filing and payment decision as litigation-sensitive, and build a backup immigration plan that does not depend on the Gold Card program surviving in court.
On February 3, 2026, the American Association of University Professors and individual plaintiffs filed Am. Ass’n of Univ. Professors v. Dept of Homeland Security, No. 1:26-cv-00300 (D.D.C. filed Feb. 3, 2026), challenging the program as an unlawful “pay-to-play” pathway that allegedly swaps money for statutory eligibility.
As of February 4, 2026, DHS and USCIS have not issued a formal litigation response through their newsrooms, though administration officials have publicly defended the program’s intent.
Below is a practical, plain-English guide to what the Gold Card is described to be, what the lawsuit attacks, and how applicants and employers can protect themselves while the case proceeds.
1) Overview: the Gold Card concept and what the lawsuit targets
The “Gold Card visa” is described as a wealth-based pathway tied to employment-based green card processing. Instead of Congress creating a new visa category, the program is framed as attaching a new evidentiary “wealth” component to existing employment-based immigrant categories.
The controversy is straightforward. Plaintiffs argue the program functions as a pay-to-play mechanism. In their view, a large “gift” to the government is being treated as a substitute for what the Immigration and Nationality Act (INA) actually requires in the EB-1 and EB-2 National Interest Waiver (NIW) categories.
Those categories traditionally turn on merit-based factors, not a payment. The lawsuit asks the federal court to stop or unwind the program. It also argues that the program was rolled out without the process the Administrative Procedure Act (APA) typically requires for major policy changes.
Defense takeaway: if you participate, assume the rules could change quickly. Your legal position improves when you preserve eligibility under traditional EB-1/EB-2 standards, independent of any “gift.”
Warning: A payment described as a “gift” may be non-refundable even if a court later pauses or invalidates the program. Get written terms, and have counsel review them before any transfer.
2) Key policy details, and how EB-1/EB-2 normally work
Tracks described: individual vs. corporate
Based on public descriptions, the program has been presented in at least two main tracks.
- Individual Gold Card: an applicant makes a $1 million “unrestricted gift” to the U.S. Treasury and pays a $15,000 DHS processing fee.
- Corporate Gold Card: a company makes a $2 million gift to sponsor an employee, plus a 1% annual maintenance fee.
- There is also a proposed “Platinum” concept at $5 million, described as allowing presence in the United States up to 270 days per year, without U.S. tax on non-U.S. income. That description is unusual in the green card context and would normally require clear statutory authority.
The EB-1 and EB-2 (NIW) frameworks
The program is framed as relying on EB-1 and EB-2.
- EB-1A (extraordinary ability) is a first-preference category. It typically requires sustained national or international acclaim and evidence meeting regulatory criteria. See INA § 203(b)(1) and 8 C.F.R. § 204.5(h).
- EB-2 NIW is a second-preference route that can waive the job offer and labor certification if the work benefits the United States. See INA § 203(b)(2) and 8 C.F.R. § 204.5(k). The modern NIW framework comes from Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016), which sets out a three-part test focused on merit and national importance.
The Gold Card theory, as described publicly, is that the “gift” itself is treated as evidence of national benefit or exceptional ability. That is exactly the substitution the plaintiffs challenge.
Form I-140G and what it signals
USCIS introduced Form I-140G (Immigrant Petition for the Gold Card Program) on November 19, 2025. Conceptually, it resembles a standard immigrant petition.
A traditional petition is typically filed on Form I-140 with an evidence package and legal argument tied to the category requirements. A new form does not, by itself, prove statutory authority. But it does suggest operational intent and processing infrastructure.
“Record time” and what it would mean in practice
Public statements have suggested adjudications in “weeks.” Even with an expedited lane, several steps normally remain, including identity checks and background vetting, admissibility screening under INA § 212(a), and evidence review.
Possible procedural steps include Requests for Evidence (RFEs) or Notices of Intent to Deny (NOIDs). Expedited processing usually changes timing, not standards. If the underlying standard becomes unclear, RFEs may increase.
3) The lawsuit: main legal theories and realistic remedies
INA statutory conflict theory
Plaintiffs’ core statutory argument is that EB-1 and EB-2 are merit-based classifications set by Congress. If an agency effectively replaces “extraordinary ability” or NIW merit with a payment, the agency may be acting contrary to the statute.
This matters because executive orders cannot rewrite the INA. Agencies must implement Congress’s framework.
APA notice-and-comment theory
The APA generally requires notice-and-comment rulemaking for legislative rules. Plaintiffs argue the program was launched through an executive order and implementation steps without the required public process.
If the court agrees, common remedies include a pause, a remand to the agency, or an injunction requiring rulemaking.
Visa number caps and allocation pressures
Employment-based immigrant visas are numerically limited. The INA’s worldwide limits and per-country constraints can create multi-year backlogs. See INA § 201(d) and INA § 202(a).
EB-1 and EB-2 each have annual allocations within the overall employment-based cap. See INA § 203(b). Plaintiffs argue that channeling high-demand Gold Card filings into EB-1/EB-2 could displace traditional applicants by consuming visa numbers.
Early milestones to watch
- Motion for preliminary injunction or temporary restraining order. Early filings often seek immediate relief.
- Government opposition and administrative record issues. The administrative record and agency justification matter for judicial review.
- Scheduling orders and briefing timelines. Courts set accelerated timetables in some high-stakes cases.
No outcome is assured. But timing can matter for applicants who file while litigation is active.
Warning: If a court issues an injunction, pending filings can be frozen. Do not assume “filed” means “safe.”
4) Real-world impact and defense strategy for applicants and employers
A) For would-be Gold Card participants
Primary risk: sunk costs. If the payment is non-refundable, the financial exposure can be significant.
Defense strategy:
- Do a parallel eligibility review. Assess standard EB-1A, EB-1B, EB-2 NIW, or EB-2/EB-3 with PERM, if applicable.
- Document merit first. Build an EB-1/NIW-quality record that stands without the “gift.”
- Plan for admissibility issues. Arrest history, immigration violations, and misrepresentation concerns can derail any case. See INA § 212(a)(6)(C) for fraud or willful misrepresentation bars.
- Control public statements. Marketing claims should not substitute for written agency guidance or attorney advice.
B) For existing EB-1/EB-2 applicants, including high-demand countries
If Gold Card filings increase demand in EB-1/EB-2, visa bulletin movement could slow. That effect depends on volume and how USCIS and DOS allocate numbers.
Defense strategy: upgrade filings where possible, consider EB-1A upgrades for strong NIW profiles, preserve priority dates, and keep evidence current. Monitor DOS and USCIS updates closely.
C) For employers considering “corporate Gold Card” sponsorship
Employers should assume heightened scrutiny. Any perception of buying immigration outcomes can create reputational and compliance risk.
- Keep the case employment-based in substance. Maintain a real role, wage documentation, and compliance systems.
- Avoid statements implying payment replaces qualifications.
- Maintain nonimmigrant status options for key hires (for example, H-1B, O-1, L-1) to bridge timing gaps.
Deadline note: If you are in the U.S. in nonimmigrant status, track I-94 expiration dates and filing windows. An expedited immigrant lane does not excuse status violations.
5) Official government sources to verify terms and track changes
Readers should distinguish promotional materials from controlling legal authority.
- Program website: Best for program descriptions and intake steps. It may not be legally controlling.
- USCIS newsroom: Best for implementation updates, forms, and official statements. (USCIS Newsroom)
- DHS news: Best for DHS announcements and policy posture.
- Executive Order (policy origin): An EO can direct agencies, but it cannot override the INA or binding regulations.
- Court case identifier: Am. Ass’n of Univ. Professors v. Dept of Homeland Security, No. 1:26-cv-00300 (D.D.C.) — use the case number to track filings and orders.
6) Timeline: why the dates matter for reliance and risk
- Sept. 19, 2025: Executive Order 14351 signed. This date matters for assessing claimed authority and agency direction.
- Nov. 19, 2025: USCIS introduces Form I-140G. This suggests operational rollout steps and possible filing infrastructure.
- Dec. 10, 2025: Public launch statements. These are a visibility milestone, but they may not resolve legal authority questions.
- Feb. 3, 2026: Lawsuit filed in D.D.C. This triggers immediate uncertainty and raises the odds of fast court motions.
- As of Feb. 4, 2026: DHS and USCIS newsrooms have not posted a formal response to the litigation. That can change quickly.
Bottom line: anyone considering this route should assume moving targets. The best defense is attorney-led screening, strong traditional eligibility evidence, and a status-preservation plan.
Why counsel is especially important here
This is not a routine filing environment. Applicants face overlapping issues: statutory interpretation, fast-changing policy, admissibility screening, and litigation risk.
An experienced immigration attorney can help assess EB-1/NIW viability under existing law, structure evidence, and reduce avoidable risks.
Legal Disclaimer: This article provides general information about immigration law and is not legal advice. Immigration cases are highly fact-specific, and laws vary by jurisdiction. Consult a qualified immigration attorney for advice about your specific situation.
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