Trump’s Immigration Overhaul Of H-1B, EB-5 To Spark Legal Firestorm

US President Donald Trump holds up a signed proclamation. Recently, Trump signed such a proclamation dealing with immigration. It has not been met with enthusiasm in all quarters.(Photo credit should read MANDEL NGAN/AFP via Getty Images)

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President Trump’s latest immigration overhaul decrees are some of the most sweeping in modern memory. With the stroke of a pen, he slapped a $100,000 fee on new H-1B visas in one decree, and in another decree, he introduced a “Gold Card” for $ 1 million residency for the wealthy that eliminated job-creation requirements. He has thereby effectively emasculated the H-1B program as the workhorse of employment-based immigration and sidelined the EB-5 visa as the principal source of investment-based job growth immigration in America. He casts these changes as bold reforms to protect American workers and raise revenue. But taken together, they threaten constitutional order, undercut fairness, and invite America’s rivals—most notably China—to siphon off the global talent that has long powered U.S. innovation.

New Fee For H-1B Visas Without Precedent

The new $100,000 price tag for an H-1B visa is without precedent. Since their creation, H-1Bs have been the primary pathway to America for highly skilled foreign professionals—engineers, scientists, physicians, professors—whose expertise helps fill gaps in the U.S. labor market. The White House insists that the fee will apply only to new petitions, not to renewals. But the signal is clear: America is putting up a massive paywall just as the global competition for knowledge workers intensifies. This is a particularly hard blow for applicants from India and China. Since it looks more like a penalty than a fee, for America, this proposal seems akin to trying to drive a car with the emergency brake on. There is a better way to do this.

Trump’s $1 Million Gold Card

At the same time, the administration has unveiled a Gold Card that allows permanent residency for those who can pay $1 million directly to the U.S. Treasury. Unlike the EB-5 program, which has always required both investment and the creation of at least ten U.S. jobs, the Gold Card makes no such employment demand. It severs the link between wealth and contribution. Under EB-5, the bargain was straightforward: bring your capital, create jobs, and you and your family can stay. Ultimately, you can apply for citizenship. Under the Gold Card, simply bring your money, and you’re in. The U.S. government is going into the green cards for sale business. This undermines EB-5’s legal foundation, even though the program remains protected by statute through 2027 under the EB-5 Reform and Integrity Act.

Legal And Constitutional Challenges

The problems here are not only financial but also legal and constitutional. Immigration categories like EB-5 are creatures of statute, created by Congress. By rewriting their core requirements without legislative approval, the executive branch is encroaching on the separation of powers. What is more, the Administrative Procedure Act requires major changes to undergo notice, public comment, and review. Announcing sweeping fees or brand-new visa categories without that administrative process is a violation of due process. Courts have checked such overreach before, and lawsuits are certain to follow.

American Green Cards For Sale

The Gold Card sends the unmistakable message that American residency is for sale. It privileges oligarchs and global elites while skilled workers without substantial personal wealth—such as researchers, doctors, and software engineers—are left scrambling. This risks creating a two-tier system: one for the rich, and another for everyone else. Meanwhile, the new H-1B fee places families and careers in jeopardy, disrupting plans made years in advance. For universities, hospitals, and technology companies, the burden is immediate: how do they continue to attract the talent they desperately need without breaking the bank?

The financial damage will not be confined to immigrants themselves. If the U.S. makes hiring skilled foreigners prohibitively expensive, companies will move work abroad. Research and development centers will sprout in Toronto, Bangalore, and Berlin rather than Boston or Austin. Investors counting on EB-5 projects to fund real estate or infrastructure will walk away rather than gamble on unpredictable rules. The ripple effects could slow growth across technology, biotech, health care, and higher education.

Handing America’s Future Over To China

As if to underline the stakes, other countries are moving swiftly to fill the vacuum. China in particular has been expanding its high-skilled visa and residency programs. Its “Category A” system offers fast-track work permits for foreign professionals in technology, science, and entrepreneurship, with approvals in as little as ten days and permits valid for up to five years. Permanent residency is increasingly available to those who make significant contributions in strategic sectors. While not a perfect replica of the H-1B, China’s pathway competes for the very people America now risks losing: engineers, scientists, and entrepreneurs who can choose where to take their talents. Beijing’s message is blunt: if Washington closes the door, we will open ours.

Nor is China alone. Canada continues to market itself as a more predictable alternative. Some Canadian companies have been helping skilled professionals relocate quickly under Canada’s more accessible immigration system, then continue working under contract for U.S. companies. This “near-shoring” model is far from ideal—it does not give workers the same protections or opportunities as U.S. residency—but for many, it is preferable to navigating America’s shifting and expensive rules. The irony is striking: American companies desperate for talent may find their workers just across the border, employed legally in Canada, because U.S. policy has driven them there.

Legal Challenges Inevitable

Legal challenges are inevitable, and courts are likely to strike down or scale back these new measures. Judges have historically blocked executive overreach in immigration, from travel bans to DACA rollbacks. The EB-5 program, in particular, enjoys statutory protection that cannot be undone by presidential proclamation alone. But even temporary enforcement can do lasting damage. Companies cannot plan, families cannot settle, and investors cannot commit when the rules seem to change overnight. Uncertainty is itself like a tax—one that compounds with every abrupt shift in policy.

At stake is more than a set of visa categories. The question is what kind of immigration system America wants to embody. Will it be one rooted in fairness, legislative authority, and the belief that talent and contribution matter? Or one driven by short-term revenue goals, class privilege, and executive decree? For decades, the promise of America has been that the best and brightest could come here to study, to work, to innovate, and ultimately to belong. That promise built Silicon Valley, fueled advances in medicine, and strengthened universities that remain the envy of the world. To betray it now would be to squander a competitive advantage no amount of tariffs or executive orders can restore. It is a voyage to the bottom of the sea.

Trump’s immigration overhaul measures may well falter in court. But the message they send—wealth over merit, rule by law instead of the rule of law—risks eroding confidence in the United States as a reliable destination for the world’s talent. And as China and others step forward with their own offers, America may discover too late that once the best and brightest leave, they rarely come back.