Would Melania be able to enter the country under a new merit-based immigration system and how exactly would she meet the criteria for the EB1 visa?
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The First Lady Melania Trump is an immigrant to this country and became a naturalized U.S. citizen in 2006. As an American citizen, Melania was able to sponsor her parents to become green card holders and eventually U.S. citizens just a few months ago. This is the type of immigration, known as chain migration, that the Trump administration is trying to reduce drastically.
How Melania got into the U.S.
Like taxes, not all of Melania’s immigration details have been released to the public, so we do not know everything. But after analyzing a lot of research and news reports, we learned that Melania Knavs came to the U.S. originally on a B1/B2 visa in 1996. Now, that’s a visitor (tourist) visa. A B1/B2 visa only allows the person to enter the U.S. to visit, but they can also interview for jobs.
Later in 1996, Melania obtained an H-1B visa. One of the criteria for that H-1B was that she had to be a fashion model. So what probably happened is that Melania came in on a visitor visa, had some interviews and then was offered a job that allowed her to obtain the H-1B visa. There may have been some issues around the lottery, which exists today as well. But, she may have won the lottery, and it could all be legitimate.
There are only so many H-1B visas available each year and they are not awarded on a first come, first serve basis. Even though our country is leading in many industries like technology and medicine, there are only 65,000 H-1B visas available each year plus an additional 20,000 for graduates of U.S. universities with advanced degrees. So this year, for example, there were over 200,000 H-1B petitions filed; therefore, the USCIS holds a lottery to select the petitions that will fill those 65,000 slots. In the year Melania applied, there may not have been a lottery, meaning there were fewer applications than the available quota.
Melania and the EB1
The EB1 has been called in the press as the Einstein visa, which is misleading because it’s not just for smart folks. It’s for extraordinary ability, and that’s for people who have risen to the top of their profession. It could be the best researcher in some very obscure science.
For instance, Billy Bean of the Oakland A’s created a whole line of statistics that transformed baseball and changed how players are evaluated that had never existed before. Those statistics made the Oakland A’s really good when they didn’t have much money. These different metrics showed that some people/players were outstanding in some specific function which helped with the game strategy.
We’re seeing a lot of statistical evidence in sports immigration. When athletes are coming up for contract extensions, some new statistics and metrics are not just most points, most rebounds, and things like that. If they can show that they’re at the top for their particular role, then they could get this visa. We get to define the box, and then we go out and see how did the person get notoriety and fit the mold.
Transitioning from an H-1B to an EB1
Looking at some of the research, we learn about Melania’s credentials. Again, we’ve never seen the case, so we’re going off available reliable sources. The Washington Post reported that Melania filed in 2000 and was able to secure an EB1 visa in 2001. That is the standard amount of time.
The fastest we’ve ever seen an EB1 approval is four months. A lot of times it takes around nine months, but it can take around a year for USCIS to make a determination. Premium processing is now available and requires USCIS to make a decision within 15 days. However, there’s a lot of strategy going into getting one of these visas and part of that is not forcing their hand to make it quick, let them take their time.
Considering the Evidence
What we know is that, according to the Washington Post report, Melania had runway shows in Europe and a Camel cigarette billboard ad in Time Square. Melania’s most notable job was a spot in the swimsuit edition of Sports Illustrated, which featured her on a beach, in a string bikini, hugging a six-foot inflatable whale. The point is, we can look at these things and see if there are what we call primary evidence.
Secondary evidence can come in two written forms. One is a well-written opinion letter from an expert in the industry that can determine whether or not the person has an extraordinary ability.
Another type of opinion letter is a referral letter, and that might be somebody she worked with to say why she was exceptionally skilled, what she did for the particular job and how she impacted the industry or company.
Meeting the Criteria
If this is all the evidence we have, can we get the EB1? The first piece of evidence is national or international awards. There’s a primary one. If she ever won a Grammy or an Oscar, that’s all she needs to prove.
The Camel cigarette billboard would be equated to the fact as if Melania worked for Camel. Camel would be an organization of distinguished reputation. We all know that it’s one of the biggest cigarette brands out there. Being on their billboard in Times Square would be a significant ad and is indicative that somebody is probably extraordinary.
But the criteria are, “Did she do something of critical importance for an organization that has a distinguished reputation?” The Camel executives could write a reference letter explaining that Melania had a contract and was paid X amount of money. If it was a lot of money that could meet the high salary criteria.
Quantifying Extraordinary ability and Awards
Camel could give metrics to determine how many people saw the ad, whether that was significant compared to other ads. They could compare the advertisement in which Melania was featured to other ads in Times Square or anywhere and find that this was the most seen ad that Camel had run. Then they might compare it to other extraordinary ability models to show that the viewership was, in fact, there. This is really solid evidence that could hit several of the criteria.
Perhaps the modeling agency wrote a letter stating how many other models Melania beat out to get the Camel contract. The modeling agency may write about why her modeling style was better and significant to the metrics used to judge models. This could be a critical piece of evidence. Camel could have paid the modeling agency a lot of money compared to other contracts, which would be significant to the modeling agencies’ credibility and probably meet the criterion.
If Camel won an award based on this billboard ad by a national or an international award granting group, then Melania could connect it with the letter from the company on her involvement. She might even be able to take credit for that national/international award, which is also another criterion.
The key is to demonstrate the extraordinary level, not just average modeling. Some other considerations may be the types of runway shows Melania participated in, whether or not those shows won any awards, the number of people and amount of money the shows got. Then we would have the experts quantify why a show is really extraordinary. They may outline the rigorous selection process.
Another qualifier is having an elite membership, which is best defined by what is not an elite membership. It’s not an elite membership if there’s an organization of all models, and in order to be a model, you pay a due. That wouldn’t cut it. However, an organization may exist within the modeling industry that is very unique and exclusive. Perhaps it was some sort of organization in which models received a membership based on their achievements.
Major Press and Publications
The next item is any press about Melania. The press should be significant, either a major publication or a trade journal. Sports Illustrated featured Melania in their swimsuit edition, that is major media. We would prove it is major media by looking at their press kit, how many subscribers and viewers they have, and so on.
Sports Illustrated is known as the top sports journal, and the swimsuit edition is their highest ranking one. It is common knowledge. What we would do is go from the common knowledge to specifics. Sports Illustrated alone could be used as documentation, much of which is publicly available, such as their press kit.
Sports Illustrated swimsuit model would definitely hit the press category. And more than likely if she has been in Sports Illustrated she has also been in others and has an extensive portfolio for proof.
Bringing in the Experts
Those are all of the evidence that we know of and they meet a number of the criteria. For an EB1, applicants have to show they have risen to the top of the profession and that’s where the experts can come in to quantify that information or give their opinion based on these pieces of evidence.
Only so many models are going to be on a billboard in Times Square. Only so many models are going to be in the Sports Illustrated swimsuit edition. In any case, if somebody else had these same criteria, I think they would probably be granted an EB1 visa.
The Trump administration has not changed the formal EB1 criteria. So these are the same requirements that existed when Melania applied for the EB1.
Did Melania ever work illegally?
Melania was able to obtain her H-1B under the very specific ‘fashion model’ category. One of the questions that may have come up is whether or not she had worked illegally. We cannot say one way or the other if Melania worked illegally, USCIS may or may not know. If Melania were on a visitor visa and did any work in the United States prior to obtaining the H-1B, she would have been working without authorization and then she would be deportable.
One of the things the Trump administration is doing that has never been done is analyzing permanent residency and citizenship cases to determine if they were obtained through fraud. If it were ever to come out that there was a record of Melania being a fashion model prior to the approval of her H-1B visa, then her citizenship could be taken away.
It used to be that in the United States, once you’re a citizen, you’re a citizen. You can be executed for treason. But very seldom will they revoke your citizenship. However, it is within USCIS power to revoke permanent residency or citizenship if they discovered that Melania had been a fashion model prior to her obtaining the H-1B.
Under the heightened scrutiny we’re seeing in the Trump administration, USCIS would have combed through every detail of Melania’s case. If she had received any payments prior to obtaining H-1B status, Melania would not have gotten her green card, become a citizen and brought her parents to the U.S. Melania has definitely benefited from immigration and in a very merit-based process.
To circle back to the beginning, qualification details of a merit-based system have not been released. The administration has only said that the U.S. will move toward a merit-based process. We know through discussion that points will probably be used to emulate the Australian model. What’s really interesting about this is that, eventually, they’re going to have to unveil these regulations.
There is a lot of litigation going on in immigration right now. If the policy is done incorrectly, it will be shot down in the courts. This administration has been bypassing Congress by putting out memos. To change a regulation, a notice is usually published to gather stakeholders input. Then it is determined whether or not the new regulation should be adjusted. We are witnessing an administration that is not going through the standard procedures for changing regulation.