If we call an apple a banana, can we regulate apples under rules that only govern bananas? No it’s not a bad joke from 2nd grade, it seems to be what is going on with the Trump Gold Visa! The I-140G just came out (is G for Gold or Gaudy?) and it raises several questions that any potential petitioner, or counsel, must think about before plowing ahead. As discussed in previous articles, the President just can’t make up new laws (or visa categories).
The first question the I-140G purports to answer is what round hole the administration is attempting to put the square peg Gold Visa into? The short answer is:
- An alien of extraordinary ability under 203(b)(1)(A) of the Immigration and Nationality Act; or
- An alien of exceptional ability under 203(b)(2)(B) of the Immigration and Nationality Act.
Or EB-1 and EB-2.
Now that we know this, the next question is, how does this help anyone? EB-1 and EB-2 are pretty hard to get. A person has to be ‘extraordinary’. They don’t call it the Einstein Visa for nothing. It usually goes to renowned scientists, luminaries, famous artists and actors. Sometimes even future First Ladies who are super models at the time (nothing gaudy about that). So, is this even a new visa? How does or will applying on the back of a $1 million gift to the Commerce department change the adjudicatory standards?
The law is pretty clear about a petitioner needing to be extraordinary, and there is a lot of precedent on what that means in practice. Can the executive branch just say ala-this-form that ‘really rich dudes’ count as ‘extraordinary’ as well? It would seem not to even pass the first blush test. Even the present Supreme Court seems to be ready to hold the administration back from making up new powers not granted by Congress (like imposing tariffs on any country it wants). The Administration may actually get away with this one as there may be no one who cares to challenge it, or who has standing to do so. Maybe IIUSA can sue under the theory that this takes away investors from the EB-5 program.
That brings us to the next question: is the Trump Gold Visa much sound and fury that signifies nothing? If all the petitioner is getting is a plain old EB-1 or 2, why deal with the million dollar ‘donation’? If they are getting a free (or million dollar) pass on the actual standards of those visa categories, then why would anyone go for EB-2? If they don’t need to be extraordinary, just rich, then everyone should ask for EB-1. There, only China and India are retrogressed, and only by a couple of years. The instructions and forms also say that the visa category needs to be current. So no benefit there for a cool million.
Lastly, the $1 million is per person, not per petition. Compared to EB-5, this just got really expensive, with the typical petition covering just over three people on average. Before the forms came out, I was wondering if they would allow people in with a less rigorous approach to source of funds, compared to EB-5. The short answer is no. The form actually does a pretty good job of breaking down the possible sources. I wouldn’t be surprised if they imported this approach into the I-526E, as it would be an improvement.
So when this is all said and done, it seems that for a lot more money, all anyone is getting are faster processing times (supposedly). It just doesn’t seem worth it.
There is also a big risk for the future. There is no statutory underpinning for the Gold Visa. What stops a future administration from doing a U-Turn, which may be a turn in the right direction, and invalidating a visa that should have never been issued in the first place under the law? It will be interesting to see how many people actually do this over the next year or so (my prediction is not a lot), but it will take some time before team FOIA can get on it. I also predict that we will see zero formal guidance on this. It’s pretty hard to put in writing that people can ignore the legal requirements of the category they are applying to.
In conclusion:
» Knock knock.
» Who’s there?
» Banana.
» Banana Who?
» Knock knock.
» Who’s there?
» Banana.
» Banana Who?
» Knock knock.
» Who’s there?
» Orange.
» Orange Who?
» Orange you glad I didn’t say Banana!