Gold Card Litigation Update: 338 Requests, 59 Petitions, and a Motion to Dismiss That Carefully Avoids the Merits
Where the Gold Card Stands After AAUP v. DHS, Motion to Dismiss
By Mona Shah, Esq.
The Numbers, and the Mood in the Room
As of late April 2026, the Department of Homeland Security has put real numbers on the Gold Card Visa Program for the first time. In a sworn declaration filed in support of the government’s Motion to Dismiss in American Association of University Professors v. DHS, No. 1:26-cv-00300-RJL (D.D.C., filed April 28, 2026), USCIS Service Center Operations Associate Director Cara M. Selby disclosed that since the program went live on December 10, 2025, USCIS has received 338 requests for Gold Cards. Of those, 165 successfully processed the required filing fee. Of those 165, only 59 actually submitted Form I-140G petitions for adjudication.
Set those numbers next to the rollout. Secretary Lutnick told the All-In podcast in March 2025 that he had “sold a thousand” Gold Cards in a single day. President Trump claimed in December 2025 that more than $1 billion in Gold Cards had been “sold.” The administration projected applications in the thousands and revenue in the billions. The actual filed-and-paid universe as of the date of this article is 59 petitions.
The EB-5 industry, which is effectively the only U.S. immigration community already working with high-net-worth individuals at this price point, has watched the Gold Card with skepticism from the start. The prevailing view within the industry can be summarized in one line: filing a Gold Card without a written caution to the client is ethically uncomfortable. The program rests on an Executive Order, has no statutory anchor, faces an active federal lawsuit, and could be rescinded by any future administration. Investors who proceed do so eyes-open or they should not be proceeding.
Filing a Gold Card without a written caution to the client is ethically uncomfortable. The program rests on an Executive Order, has no statutory anchor, and faces an active federal lawsuit.
And yet clients continue to ask for it. Two reasons keep coming up. First, speed. The Gold Card is designed to be adjudicated in months. EB-5 takes approximately 13.5 months for the I-526E alone, before consular processing or adjustment of status. Second, certainty of status. EB-5 carries a structural risk that does not exist anywhere else. Even if the I-526E is approved and the conditional green card issued, the I-829 petition to remove conditions is filed roughly three to four years after the original investment. If the project underperforms, if jobs are not created on the required schedule, or if USCIS finds another issue, the I-829 can be denied. It is a documented risk that EB-5 counsel must disclose. For an investor who wants a permanent, unconditional green card and is willing to pay for it, the Gold Card removes the I-829 cliff. That appears to be the real selling point, even if it sits inside a program with serious legal vulnerabilities.
Where the Litigation Stands
Two cases are now moving in the U.S. District Court for the District of Columbia.
AAUP v. DHS, No. 1:26-cv-00300-RJL (filed February 2026). The substantive challenge. The American Association of University Professors and six individual immigrant professionals from Mexico, Colombia, Taiwan, and Ghana sued DHS, USCIS, the Department of State, and the Department of Commerce, arguing the Gold Card is unlawful and arbitrary under the Administrative Procedure Act and ultra vires. On April 28, 2026, the government filed its Motion to Dismiss, supported by three sworn declarations from Andrew Parker (USCIS Office of Policy and Strategy), Stuart Wilson (DOS Bureau of Consular Affairs), and Cara M. Selby (USCIS SCOPS).
DDF v. DHS, No. 1:26-cv-01230 (filed April 13, 2026). The Freedom of Information Act case brought by Democracy Defenders Fund, Colombo & Hurd PL, and Free Information Group seeking the administrative record behind the Gold Card. The agencies missed their statutory 20-working-day FOIA deadlines. The Department of Commerce told DDF its estimated date of completion was March 2, 2027, which is 386 calendar days from the request date. The FOIA case will almost certainly produce documents. The question is when, and how much will be redacted.
The Motion to Dismiss is a Standing Argument, Not a Merits Defense
The government’s 30-page brief filed on April 28 is, on first read, a competent piece of standing litigation. It is also a tell. The government’s argument is that the named plaintiffs cannot show a concrete, imminent injury traceable to the Gold Card program. It rests on three operational points, each backed by a sworn declaration:
Visa availability. Per the May 2026 Visa Bulletin, EB-1 and EB-2 are “current” for every country except China and India. None of the named plaintiffs is chargeable to China or India. Therefore, the government argues, no plaintiff is being “displaced” from any visa they would otherwise receive.
Volume. The 59 actually filed I-140G petitions are dwarfed by FY2025 receipts of 51,371 EB-1 and 116,193 EB-2 petitions. The combined annual EB-1 and EB-2 limit for FY2026 is approximately 106,578 visas.
Adjudicator allocation. Six adjudicators are dedicated to the Gold Card; 275 adjudicators handle the standard I-140 EB-1/EB-2 workload. From December 1, 2025, through February 28, 2026, USCIS officers logged 141.5 hours on Form I-140G and over 55,000 hours on I-140 EB-1/EB-2. No adjudicator was reassigned from the standard EB queue. Therefore, the government argues that no “delay” injury is traceable to the program.
On those facts, the government invokes Lujan v. Defenders of Wildlife, Public Citizen v. NHTSA, and the D.C. Circuit’s “substantially increased risk” cases to argue that the plaintiffs’ displacement and delay theories are too speculative for Article III. The brief is workmanlike. Standing dismissals are common in immigration challenges, and the visa-availability point in particular is real: if EB-1 and EB-2 are current for the named plaintiffs’ countries of chargeability, the displacement theory is a hard sell on these specific facts.
What the Brief Does Not Say
The government’s brief is a 30-page argument about who can sue. It is not a defense of whether the Gold Card is lawful
Now to the part that deserves attention. The government’s brief is a 30-page argument about who can sue. It is not a defense of whether the Gold Card is lawful. The Department of Justice has filed Article III briefing, not statutory briefing, and the choice is deliberate. There is no section in the Motion to Dismiss titled “The Gold Card Complies with the INA.” There is no analysis of 8 U.S.C. § 1153(b)(1)(A) and (b)(2)(A) at all. The brief recites the statutory text, then moves on.
That gap screams attention. The EB-1A category is reserved by statute for aliens of “extraordinary ability in the sciences, arts, education, business, or athletics” whose entry “will substantially benefit” the United States. EB-2 is reserved for “members of the professions holding advanced degrees or their equivalent” or aliens of “exceptional ability in the sciences, arts, or business.” The National Interest Waiver attaches to the same exceptional-ability framework. None of those statutory standards is monetary. None mentions a gift, a donation, a contribution, or any payment. The criteria are abilities and contributions, judged on a case-by-case evidentiary record.
The EB-1 and EB-2 statutes are not money-based. They never have been. Only Congress can change the wording. An Executive Order cannot.
Yet Executive Order 14351 directs USCIS to treat a $1 million gift to the Department of Commerce as evidence of “extraordinary ability” for EB-1A and as evidence of “exceptional business ability and national benefit” for EB-2. The government’s own declaration in this very case says so in writing: the gift “is treated as evidence of extraordinary ability (for an EB-1A visa), of exceptional business ability and national benefit (for an EB-2 visa), and of eligibility for a national-interest waiver.” (Wilson Decl. ¶ 4.) The sworn statement of Wilson is the substantive problem in plain English. An Executive Order has redefined what counts as evidence of statutory eligibility under categories that Congress wrote and that Congress has not amended.
Congress writes immigration law. The Department of Commerce does not. The President, by Executive Order, does not. The 1952 Immigration and Nationality Act, as amended, has been touched by Congress dozens of times, including the major 1990 reform, the 2022 EB-5 Reform and Integrity Act, and successive Continuing Resolutions affecting visa allocations. At no point did Congress write “or a gift of $1 million” into the EB-1A or EB-2 eligibility text.
If a future Congress wants to add a wealth-based criterion to the employment-based preference categories, that is its prerogative. Until it does, an Executive Order cannot do it for them.
This is the argument the Motion to Dismiss does not engage, and the silence is loud. The government has bet the case on standing precisely because the merits are uncomfortable. If the court reaches the merits, the plaintiffs’ separation-of-powers argument, that an Executive Order cannot rewrite statutory eligibility criteria, is not decorative. It is, in the language counsel for the FOIA plaintiffs used:
Immigrant visas are not million-dollar Mar-a-Lago memberships.
— Kevin Bell, Free Information Group (DDF Press Release, April 13, 2026)
Does the Government’s Argument Have Merit?
On its own terms, yes, partially. The standing analysis on the displacement theory is genuinely strong on these facts. EB-1 and EB-2 are “current” for every country at issue in the named plaintiffs’ case. As long as that remains true, the named plaintiffs cannot easily show that a Gold Card applicant took a visa that would have been theirs. The delay theory is also weakened by the operational reality. That is, 6 dedicated Gold Card adjudicators with 141.5 logged hours over three months is not displacing the work of 275 adjudicators logging 55,000 hours.
That said, the standing argument is fact-dependent and time-dependent. Two points are worth flagging.
First, the State Department’s own Visa Bulletins for March, April, and May 2026 acknowledge that current visa availability for non-India and non-China applicants is the result of “various actions the administration has taken to protect national security and public safety,” and warn that “retrogression may be necessary later in the fiscal year to keep issuances within annual limits.” (Parker Decl. ¶ 16.) If retrogression occurs, the displacement theory becomes considerably more concrete for plaintiffs from any oversubscribed country.
Second, the standing analysis says nothing about whether the program is lawful. If AAUP is dismissed for lack of standing today, a plaintiff with cleaner facts can sue tomorrow. A Chinese-born EB-1A applicant who can show a queue position behind a Gold Card filer would defeat the displacement standing argument outright.
The Risk That Does Not Depend on Either Court
Whatever happens in either case, the Gold Card has a structural problem that no judicial ruling fixes. The program exists because of an Executive Order. A future administration can rescind it with a signature. Investors filing today are paying $1 million for a status whose continuing validity depends on the political calendar. Every Gold Card retainer should reflect that risk in writing, every client conversation should document it, and every fee agreement should make the disclosure unmistakable.
The Bottom Line for EB-5 Counsel and Investors
Five months in, the Gold Card has 59 actually-filed petitions, one confirmed approval, two active lawsuits, a 30-page Motion to Dismiss that pointedly avoids the merits, and a structural flaw that no court can cure. EB-5 continues to attract filings ahead of the September 30, 2026 grandfathering deadline because the statute is stable, the capital is investment rather than gift, and the TEA thresholds are dramatically lower.
The investors who continue to pursue Gold Cards generally fall into two camps: those who need speed for legitimate immediate-residency reasons, and those who want to avoid the I-829 conditional-removal risk that haunts every EB-5 petitioner five-to-seven years after filing. Both reasons are rational. Neither cures the program’s legal vulnerability. Counsel who file Gold Cards without a documented, written caution covering the Article III litigation, the underlying statutory question, the Executive Order foundation, and the political-calendar risk are not serving their clients.
Mona Shah & Partners Global is a U.S. and U.K. global immigration law firm specializing in EB-5 and the residency and citizenship by investment programs. Nothing in this article constitutes legal advice. Readers considering any investor visa option should consult qualified counsel on their specific circumstances.
Sources
Defendants’ Motion to Dismiss and Memorandum in Support, American Association of University Professors et al. v. U.S. Department of Homeland Security et al., No. 1:26-cv-00300-RJL (D.D.C. filed Apr. 28, 2026), ECF No. 29.
Declaration of Andrew Parker, USCIS Office of Policy and Strategy, AAUP v. DHS, No. 1:26-cv-00300-RJL (D.D.C. filed Apr. 28, 2026), ECF No. 29-1 (Exhibit A).
Declaration of Stuart Wilson, Deputy Assistant Secretary for Visa Services, U.S. Department of State, AAUP v. DHS, No. 1:26-cv-00300-RJL (D.D.C. filed Apr. 28, 2026), ECF No. 29-2 (Exhibit B).
Declaration of Cara M. Selby, Associate Director, USCIS Service Center Operations, AAUP v. DHS, No. 1:26-cv-00300-RJL (D.D.C. filed Apr. 28, 2026), ECF No. 29-3 (Exhibit C).
Complaint, Democracy Defenders Fund et al. v. U.S. Department of Homeland Security et al., No. 1:26-cv-01230 (D.D.C. filed Apr. 13, 2026).
Democracy Defenders Fund, Press Release, “DDF Files Lawsuit Over Administration’s Refusal to Release Documents on Gold Card Visa Program” (April 13, 2026).
Executive Order 14351, “The Gold Card,” 90 Fed. Reg. 46,031 (Sept. 19, 2025).
8 U.S.C. § 1153(b)(1)(A) (EB-1 priority workers; “extraordinary ability”).
8 U.S.C. § 1153(b)(2)(A) (EB-2 advanced degree professionals; “exceptional ability”).
8 U.S.C. § 1153(b)(2)(B)(i) (National Interest Waiver).
U.S. Department of State, “Visa Bulletin for May 2026.”
CBS News, “Only one Trump ‘gold card’ visa has been approved so far, Commerce’s Lutnick says” (April 23, 2026).
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992); Public Citizen, Inc. v. Nat’l Highway Traffic Safety Admin., 489 F.3d 1279 (D.C. Cir. 2007).