Immigration attorney Michael Wildes has represented first lady Melania Trump and her parents, who are naturalized citizens. He has secured visas for Miss Universe titleholders when President Donald Trump ran the pageant organization. He has done legal work for the Kushner family.
But when he has received calls from potential clients interested in a gold card visa that Trump has touted for wealthy foreigners, he has told them there is little he can do because the program is legally dubious.
“It would be unethical of me to retain them,” Wildes said.
Immigration lawyers who have represented wealthy individuals are warning their clients against paying the $15,000 fee to apply for the $1 million or $2 million visa that Trump has advertised, citing the lack of a congressionally established visa, ongoing litigation against the visa program, and uncertainty about the tax implications for their clients. Seven immigration attorneys who work with the sort of wealthy clientele that the gold card program is meant to attract told the Washington Post that they have either steered clients clear of applying for the gold card or declined to assist foreigners who have already applied, recommending instead that wealthy people consider established, legal methods of coming to the United States.
At the Invest in the USA conference last week in Washington — attended by immigration attorneys who represent foreign investors — the gold card visa barely came up at all, according to Aaron Grau, the executive director of the trade association behind the conference.
“It’s a percolating question that people talk about when they grab a beer,” Grau said. “It’s not really a serious conversation.”
Invest in the USA advocates for the EB-5 visa, which dates back to 1990 and provides residency to foreigners who make certain investments in the United States to create jobs. Members of the association have spoken with lawmakers and their staff on the Hill and been “met with eyerolls” when the gold card visa comes up and been told there is no interest in codifying the executive order into law, Grau said.
After Commerce Secretary Howard Lutnick told lawmakers in late April that one person had recently been approved for a gold card visa, immigration attorneys speculated who that might be. No one raised their hand on an email Listserv of attorneys in this world of immigration law, and one of them wondered if Lutnick might have been referring to rapper Nicki Minaj, who posted a photo of a gold card visa with Trump’s face that she was gifted. (A senior administration official who spoke on the condition of anonymity to speak candidly said Minaj’s card was merely a “memento” and not a real visa.)
The administration has declined to provide any more information about the person who was approved. But a court filing by the government in a lawsuit over the visa program revealed it has processed a limited number of applications: Out of the 338 requests for the gold card visa, 165 have actually paid the nonrefundable $15,000 filing fee to move forward, and 59 people have moved on to the subsequent step of filling out paperwork from the Department of Homeland Security.
The filing also said that gold card visa applicants will not necessarily get approval ahead of others seeking an EB-1 or EB-2 visa, which are given to foreigners with extraordinary talents who did not pay the expensive gold card fees.
Mona Shah, an attorney with two clients at various stages of the gold card visa application process, said the court filing indicated to her that previous promises of speedy processing were “false advertising,” and she has warned her clients that their gold card applications might go nowhere. However, she said her clients — who are from Nigeria and Pakistan — have been frustrated by travel bans and restrictions and have money that they are willing to waste for the chance at residency. But, she said, it’s only a chance.
“They want me to say ‘Yes, you are going to get it,’ and I can’t say that to them,” Shah said.
Attorneys said they are particularly worried about repercussions to their own careers by advising clients to consider the gold card visa.
Ron Klasko, an immigration attorney who has taken one gold card visa case for a Ukrainian businessman, hired an attorney to advise him on the ethical considerations, and he has created a chart to explain to clients the distinctions between the gold card visa and EB-5 visa to help inform their decision-making.
On one side of the chart, Klasko explains that EB-5 requires an $800,000 investment, can provide residency for a spouse and minor children, and would only be changed by legislation. On the other hand, the gold card is a $1 million investment plus an additional $1 million for every family member, and it can be eliminated by an executive order. Plus, he notes, the gold card is at risk of litigation because there is no statute or regulations validating its existence.
His clients often start off by assuming that the gold card will offer them some other tax advantages. His chart explains gold card visas and EB-5 recipients are taxed on worldwide income.
“Typically, they say ‘Thank you, we’ll think about this and we’ll let you know,’” Klasko said, “and typically they get back to me and say ‘We decided to go EB-5.’”
Other attorneys, like Wildes, don’t think it is worth the risk. Although many of his leads come from corporations, the calls he most often receives about gold card visas are from laypeople who have not previously navigated immigration law. One was a wealthy university student who had overstayed their visa and didn’t know what to do to finish their studies. In another instance, a mother-in-law to a man who got a green card for his family but couldn’t include her as a dependent was looking for a way to emigrate with the family. Each time, Wildes directed them to other programs.
Immigration attorney Rosanna Berardi said she has heard from clients interested in the gold card but has “made the professional decision not to accept these cases,” due to concerns about the legality and the application cost that comes with no guarantee of approval.
“As immigration counsel, our obligation is always to protect our clients’ interests,” she said, “and we do not believe it is appropriate to recommend a program with such significant legal uncertainty and financial risk, even when clients express a desire to proceed.”