My Take on the AP Story on Melania’s Illegal Work in the US

Posted on: November 30th, 2016
Share on FacebookTweet about this on TwitterEmail this to someoneShare on Google+Pin on PinterestShare on StumbleUponShare on TumblrShare on RedditShare on LinkedInPrint this page

The Associated Press is reporting that Melania Trump accepted 10 modeling jobs in the US after entering on a tourist visa in 1996. Melania Trump, through her lawyer, claims she began work on H-1B status on October 18, 1996.

What does this mean? First, it confirms what many lawyers – including myself – were noting last spring when Politico, Univision and other news outlets initially questioned Melania’s immigration history. The story largely quieted after the Trumps’ current immigration lawyer, Michael Wildes, insisted that he had reviewed Melania’s immigration documents and her history and assured the public that she had always complied with the law. Melania had also promised at that time to hold a press conference and release documents proving she always maintained her immigration status.

However, no documents were ever released. And few questions were asked after this.

To be honest, I thought journalists had given up too quickly on the story, but like the tax returns, there wasn’t much that could be done since reporters aren’t entitled to view the documents under the Freedom of Information Act.

There are several issues that come to mind, some of which have no clear answers yet.

First, did Melania really begin work on an H-1B visa in October 1996? That’s the date that was offered by the Trumps. But they’ve never documented this so we only have their word. Of course, they insisted there was no illegal work so why we should trust them on the start date for an H-1B – or even if she ever had an H-1B?

Second, Michael Wildes said Melania got an H-1B visa on October 18th at the Slovenian consulate. It’s not clear why she didn’t file to change to an H-1B status in the US instead of going to a consulate. She may have actually been smart to leave the US to get the H-1B visa because her next entry on an H-1B visa would have been legal. That would at least avoided lying on a change of status application. However, it is very possible that Melania’s illegal work would have come up in her consular application. So visa fraud is still a question mark.

Third, October 18th is a strange start date for the H-1B. The H-1B cap did not run out for the fiscal year that ended September 30, 1996. In fact, only 48,000 H-1Bs were used that year. This means Melania COULD have gotten an H-1B visa for the dates in question, but for some reason she and her employer chose not to.

Fourth, we still have no idea how Melania converted to permanent residency. Michael Wildes said in 2000 she filed for a green card in the EB-1 category. No evidence of this has ever been produced and Wildes had earlier indicated Melania got the green card through an earlier marriage. This is still a mystery. But Melania would have been required to list her work history for the prior five years so if she failed to list the illegal work, she potentially engaged in visa fraud and USCIS could reopen both her green card and her subsequent citizenship application and potentially reverse. And this, in theory, would make Mrs. Trump potentially at risk of being deported. Keep in mind that if Melania had a decent lawyer, he or she might have counseled her to disclose the illegal work because under Section 245K of the Immigration and Nationality Act, she would still have been eligible for the green card. It’s the lie that is the problem, not the illegal work. Of course, this is all assuming that the information provided by the Trumps and Michael Wildes is true.

All in all, now that the AP has blown a hole in Melania’s immigration story and because the Trumps never provided the documents despite their promise to do so, it’s really too late to address this before the election. The Trumps have only themselves to blame.