Do Trump's Gold Card and $100K H-1B Fee Survive Checks and Balances?
Analysis of constitutional and legal challenges facing Trump's sweeping immigration executive actions through the lens of America's system of checks and balances.
On September 19, 2025, President Trump signed two sweeping executive actions:
The Gold Card Program
Allowing wealthy immigrants to "gift" $1M to qualify for permanent residency under EB-1/EB-2.
The $100,000 H-1B Entry Fee
Requiring certain new H-1B beneficiaries abroad to pay a steep fee to enter the U.S.
These moves have caused shockwaves in the immigration community. But the question remains: will they stick?
1Executive Power: Broad but Limited
The President can issue Executive Orders and Proclamations to regulate who may enter the U.S., particularly under INA §212(f) (the same statute used for prior "travel bans"). This explains why Trump could announce these policies so quickly.
2Congress: Controls the Purse and the Statutes
Congress holds two major checks:
Legislation
It can clarify visa criteria, restrict new fee schemes, or preserve EB-1A/NIW as merit-based categories.
Funding
Agencies like USCIS and Commerce cannot run these programs if Congress withholds appropriations.
If opposition grows — from industry groups relying on H-1B talent or advocates defending merit-based immigration — Congress could step in.
3Courts: The Strongest Immediate Check
Federal courts can block or limit executive actions that conflict with existing law. Past examples:
- The 2017 Travel Ban was stayed, then narrowed after multiple lawsuits.
- Immigration-related EOs are routinely tested under the Administrative Procedure Act (APA) and constitutional challenges.
Expect lawsuits arguing:
Gold Card: Illegal rewrite of EB-1/EB-2 statutes.
$100K H-1B fee: An unauthorized tax that only Congress can impose.
4What's Most Likely to Happen
Gold Card
Partial rollout, but litigation will freeze or limit it. Full replacement of EB-1A/NIW is improbable.
$100K H-1B Fee
More enforceable short term (fits under entry restrictions), but carve-outs and lawsuits will weaken it.
5Why This Matters for You
For petitioners and employers:
EB-1A/NIW applicants
File promptly if eligible — don't assume Gold Card will be permanent.
H-1B employers
Monitor guidance on who pays the $100K and whether your petition qualifies for an exception.
Everyone
Expect uncertainty. Plan filings early, document eligibility under current rules, and follow official updates closely.