Trump Gold Card Petition Hands the EB-1 or EB-2 Choice to the State Department

Gold Card applicants will not choose which green card category they will be counted under. The current Form I-140G, edition dated Sept. 11, 2026, contains no question asking petitioners to pick between EB-1 extraordinary ability and EB-2 with a national interest waiver; its instructions say USCIS will decide the petition on the evidence and the State Department “may assign either classification at the time of immigration visa processing.” For a $1 million applicant born in India or China, and since October for many EB-2 applicants worldwide, that assignment can decide whether a visa number is available now or years from now.

Two doors, two very different lines

Executive Order 14351 tells agencies to treat the gift as evidence of eligibility for both categories (our December coverage explains the order’s design). It creates no new green cards. Gold Card applicants draw on the same EB-1 and EB-2 allotments as researchers and executives, each 28.6 percent of a worldwide employment-based limit of at least 140,000, or about 40,040 visas a year (our calculation from the Visa Bulletin).

Country of chargeability	EB-1	EB-2
All countries not listed	Current	Jan. 1, 2025
China (mainland-born)	July 1, 2023	Oct. 1, 2021
India	Feb. 1, 2023	Nov. 1, 2013
Mexico	Current	Jan. 1, 2025
Philippines	Current	Jan. 1, 2025

Employment-based final action dates. Source: U.S. Department of State, Visa Bulletin for October 2026.

The EB-2 column is why this now reaches beyond India and China. EB-2 for most countries went from current to a Jan. 1, 2025, cutoff in October, Newsweek reported, a retrogression the State Department said keeps issuance within fiscal 2027 limits. Because section 203(e) of the Immigration and Nationality Act issues visas in filing order, a German born applicant placed in EB-1 could get a number at once, while the same applicant in EB-2 waits for the cutoff to reach a 2026 filing date. For India-born applicants the two cutoffs sit more than nine years apart.

What the government has not explained

Nothing published says how the State Department will choose. One plausible reading, offered as analysis, is that officers will use whichever category has a number available, which would favor EB-1 for Indian- and Chinese-born applicants. But the instructions’ warning that waits may differ reads as notice that no outcome is promised, and no document confirms that the I-140G filing date becomes the priority date in either category.

The instructions describe one path after approval, visa processing at a U.S. embassy or consulate abroad, with no adjustment-of-status option for someone already here, such as an H-1B worker. The $15,000 fee per person is nonrefundable whatever happens, while the $1 million gift, or $2 million from a corporate sponsor, is wired only after the visa interview. A long wait puts the fee at risk, not the gift.

Small numbers, a pending lawsuit

Demand has been modest. In the April declaration, USCIS said it had received 338 Gold Card requests since Dec. 10, 2025; 165 came with the fee and 59 became filed petitions, against 51,371 EB-1 and 116,193 EB-2 petitions in fiscal 2025. Commerce Secretary Howard Lutnick told a House appropriations subcommittee on April 23 that one applicant had been approved, CBS News reported. USCIS’s paperwork estimate assumes about 1,592 petitions a year.

Those figures are central to American Association of University Professors v. Department of Homeland Security, No. 1:26-cv-00300, in federal district court in Washington. The faculty union and immigrant professionals argue that the program redefines the EB-1 and EB-2 standards without authority from Congress, in violation of the Administrative Procedure Act and the Immigration and Nationality Act, Bloomberg reported. A Commerce Department spokesperson told Bloomberg the program prioritizes people with a demonstrated record of success who will contribute to the economy. In its April motion, the government asked the court to dismiss the case because the plaintiffs cannot show the program hurts their chances at a visa, Law360 reported. We found no reported ruling on that motion.

In our assessment, the assignment rule cuts both ways in that case. Placing Gold Card applicants in the faster category shows the program drawing on numbers others are waiting for, yet 59 petitions against tens of thousands of filings supports the government’s no-harm argument.

This article is for general information and is not legal advice.

Sources

Vasanth Vaidyanathan, Esq.

Administrator

Vasanth Vaidyanathan is an immigration attorney with over 20 years of experience focused exclusively on U.S. immigration and nationality law. He holds a LL.M. from California Western School of Law, San Deigo and advises individuals and businesses on employment and family-based immigration matters, including H-1B, PERM, EB categories, and adjustment of status. He has also been a featured speaker at immigration seminars across the U.S. To reach Vasanth visit: https://www.vnathan.com/

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