Trump Gold Card Visa Lawsuit: AAUP v. DHS Claims and FOIA Case

The Trump administration’s Gold Card visa program is being challenged in federal court as an unlawful pay-to-play scheme that bypasses Congress. The Trump Gold Card visa lawsuit, American Association of University Professors v. Department of Homeland Security, was filed on February 3, 2026, in the U.S. District Court for the District of Columbia and is assigned to Judge Richard J. Leon.¹ The case is in the motion-to-dismiss phase, with briefing running through August 2026 and no ruling on the merits yet.

Who Filed the Lawsuit

The American Association of University Professors filed the complaint together with six individual immigrant professionals from Mexico, Colombia, Taiwan, and Ghana: Rodrigo Cerna-Chavez, William Daniel Moscoso-Barrera, Yu-Ting Tsai, Aldo S. Estrada-Montaño, Ma. Elena Hernández Cepeda, and Richmond Djorgbenoo. They are scientists, researchers, engineers, and other professionals currently waiting in the employment-based visa system.²

The defendants are the Department of Homeland Security, U.S. Citizenship and Immigration Services, the Department of State, and the Department of Commerce.¹

In May 2026, the United Auto Workers joined the case through an amended complaint. The UAW represents roughly 120,000 higher education workers, including graduate students, postdoctoral researchers, and teachers, many of whom are noncitizens moving through the employment-based visa system. UAW President Shawn Fain called the Gold Card “a deeply unfair pay-to-play express lane.”³⁴

What the Gold Card Program Does

President Donald Trump signed Executive Order 14351 on September 19, 2025, directing the Secretary of Commerce, in coordination with State and Homeland Security, to create the Gold Card program.⁵ The program channels applicants into two existing employment-based visa categories, EB-1 for “extraordinary ability” and EB-2 for “exceptional ability,” but treats a payment to the Department of Commerce as evidence of eligibility. Individual applicants contribute $1 million; corporations sponsoring an employee pay $2 million. Those funds go into a Treasury account designated to “promote commerce and American industry.”⁶

The program launched on December 10, 2025. Applicants also pay a nonrefundable $15,000 processing fee per person and file Form I-140G with USCIS.⁷⁸ Because the Gold Card draws from the same statutorily capped EB-1 and EB-2 pool, it does not create new visa numbers.

The Legal Claims

The plaintiffs bring their case under the Administrative Procedure Act and the Immigration and Nationality Act. Three claims sit at the center of the complaint.

First, the complaint argues the program is ultra vires and executive overreach. Congress, not the President, defines who qualifies for employment-based visas. By treating a million-dollar payment as evidence of “extraordinary” or “exceptional” ability, the executive order rewrites statutory eligibility criteria that were designed around sustained acclaim, scholarly contributions, and demonstrated national benefit, not wealth.²

Second, the plaintiffs allege the program is arbitrary and capricious. They say it was created without reasoned decision-making and without the notice-and-comment rulemaking the APA requires.¹

Third, the plaintiffs allege concrete harm to existing applicants. Because the Gold Card draws from the same capped pool of EB-1 and EB-2 visas rather than creating new ones, prioritizing wealthy applicants pushes qualified professionals further back in an already oversubscribed queue and consumes limited agency resources.⁹ The UAW’s amended complaint extends that displacement theory to its noncitizen members teaching and researching at American universities.³

How the Government Has Responded

On April 28, 2026, the government moved to dismiss. The motion did not defend the Gold Card on the merits. Instead, it argued the plaintiffs lack Article III standing because they cannot show a concrete, imminent injury.¹⁰

The government pointed to three facts to support that argument. Program volume is small: as of late April 2026, USCIS had received 338 Gold Card requests, 165 applicants had paid the processing fee, 59 had filed Form I-140G, and one had been approved. Agency workload from the program was minimal: USCIS logged 141.5 hours on Gold Card petitions between December 2025 and February 2026, compared with more than 55,000 hours on conventional EB-1 and EB-2 cases. And the May 2026 Visa Bulletin showed EB-1 and EB-2 categories were “current” for most countries, meaning visas were available without backlog, which the government argued negated the displacement theory.¹⁰

The government’s own filing also acknowledged that Gold Card applicants “will not necessarily have their petitions adjudicated faster than any non-Gold-Card applicant,” a concession that undercuts the program’s marketing promise of processing in “a matter of weeks.”¹¹ What the brief did not argue was that the executive order lawfully permits the President to redefine statutory visa eligibility through a payment mechanism. Legal observers characterized the standing-only strategy as a deliberate choice to sidestep the merits.¹⁰

Where the Case Stands

After the plaintiffs filed their amended complaint on May 18, 2026, adding the UAW, the original motion to dismiss became moot. Judge Leon granted a joint motion setting a new briefing schedule:

Government’s motion to dismiss the amended complaint: due June 25, 2026
Plaintiffs’ response: due August 3, 2026
Government’s reply: due August 25, 2026

No oral argument has been scheduled, and no ruling on the merits has been issued.¹¹²

The Constitutional Question Underneath It All

If the case gets past standing, the court will confront a straightforward separation-of-powers question: can the President, by executive order, treat a payment as the statutory equivalent of “extraordinary” or “exceptional” ability?

The Supreme Court held in Galvan v. Press (1954) that the formulation of policies regarding the entry and stay of noncitizens is “entrusted exclusively to Congress,” and in Arizona v. United States (2012) the Court emphasized that immigration policy must be “made by one voice.”¹³

Critics of the Gold Card lean on Justice Robert Jackson’s framework from Youngstown Sheet & Tube Co. v. Sawyer (1952), which places presidential authority at its “lowest ebb” when the President acts against the expressed or implied will of Congress. Congress has already created an investor-visa pathway: the EB-5 program, which requires at-risk capital and the creation of at least ten full-time U.S. jobs. The Gold Card’s donation-based shortcut, critics argue, contradicts that statutory design.¹³ The Fifth Circuit applied similar reasoning in Texas v. United States (2015), invoking the major questions doctrine to strike down the DAPA immigration program for lacking clear congressional authorization.¹⁴

The administration’s position, as stated in the executive order, rests on the President’s constitutional authority combined with 15 U.S.C. 1522 (which permits the Commerce Department to accept unrestricted gifts) and the INA’s employment-based visa provisions. The order directs agencies to treat the payment as evidence of “exceptional business ability and national benefit.”⁵ Proponents also cite United States ex rel. Knauff v. Shaughnessy (1950), which described the power to exclude aliens as “inherent in the executive power to control the foreign affairs of the nation,” though scholars dispute whether that case reaches the creation of an entirely new immigration program.¹⁴

The Parallel FOIA Case

A separate suit, Democracy Defenders Fund v. U.S. Department of Homeland Security (No. 1:26-cv-01230), was filed on April 13, 2026. It is not a challenge to the program’s legality. It seeks records under the Freedom of Information Act about how the Gold Card was created and implemented, including adjudicator guidance, internal communications, application and processing data, and communications involving Commerce Secretary Howard Lutnick.¹⁵¹⁶

All four agencies named as defendants either denied expedited processing, missed statutory deadlines, or both. The Commerce Department cited “unusual circumstances” and estimated it would not finish producing documents until March 2, 2027. The case remains pending.¹⁶¹⁵

The existing EB-5 program, which the Gold Card was initially pitched as replacing, remains operational. It is congressionally authorized through at least September 30, 2027, and the two programs currently run side by side.¹⁷

1
Civil Rights Litigation Clearinghouse. AAUP v. Department of Homeland Security
2
Public Citizen. AAUP and Immigrant Professionals File Lawsuit Challenging Gold Card Visa Program
3
Democracy Defenders Fund. UAW Joins Gold Card Lawsuit
4
OnLabor. May 21, 2026
5
Federal Register. The Gold Card
6
The White House. The Gold Card
7
Roll Call. Trump Administration Launches Gold Card Visa Website
8
USCIS. Form I-140G
9
Bloomberg Law. Trump Gold Card Is Unlawful Pay-to-Play Visa Scheme, Suit Says
10
M Shah Law. Gold Card Litigation Update
11
CNBC. Trump Gold Card Wealth
12
CourtListener. AAUP v. Department of Homeland Security Docket
13
Columbia Undergraduate Law Review. A Constitutional Analysis of Trump’s Gold Card Visa Program
14
Center for Immigration Studies. President Trump’s Gold Card Needs to Pass Through Congress’s Golden Gate — Or Does It
15
Civil Rights Litigation Clearinghouse. Democracy Defenders Fund v. U.S. Department of Homeland Security
16
Clearinghouse. DDF v. DHS Complaint
17
GGI. Trump’s Gold Card Visa: What It Means for EB-5 Investors