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Alleged Visa Fraud by Melania Trump, Other Models: Why Does it Matter? Roger Algase

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UPDATE, SEPTEMBER 16, 6:48 PM:

According to the latest news reports, the New York Post has now corrected its original article claiming that Melania Trump was working in the US as a model in 1995, before she received her legal H-1B work visa in 1996.

There appears to be no further basis for speculating that Melania Trump might have allegedly been engaged in visa fraud at any time. Based on these new facts, this issue should be considered closed. In commenting on this issue, I have always emphasized that nothing had been proven against Melania Trump and that the newspaper reports I referred to were allegations only.

Unrelated allegations that Trump's modeling agency may have encouraged some of its models to lie to immigration officers about their intentions to work in the US remain, and while not proven, have still not yet been answered or refuted by the Trump campaign or anyone else, to the best of my knowledge.

My original post, based on the original NY Post report which the paper now ways was not accurate, appears below:

The following post has been revised as of 7:28 am on September 12:


This post is Part 2 of a 2-part series begginning with my September 8 post: When Will Trump Answer Questions About Melania, Other Models, Visa Fraud Allegations?

First, this post will discuss certain legal points relating to whether someone in a position similar to Melania Trump's alleged one relating to the immigration laws might have had a motive to make additional misstatements to immigration officials or in immigration-related applications which could amount to fraud or material misrepresentation

Second, in response to some comments suggesting that I may be raising the issue of Melania Trump's immigration history (with which Donald Trump himself admittedly had no involvement or role to play whatsoever) as well as the related issue of allegations that Trump's own modeling agency told its models to lie to immigration officials - something which Trump would have ultimate responsibility for, if proven - only in order to embarrass Trump for political reasons, I would answer as follows:

When a candidate for an office which would put him in charge of our entire immigration system, including enforcement, is facing allegations relating, not only to his wife's, but to his own past adherence to these same immigration laws, including allegations of engaging in or complicity in immigration fraud that that could constitute criminal activity if proven, these issues are relevant to how our laws might be enforced if that candidate assumes office.

As discussed in more detail below, they are also relevant to the issue of who the main targets of immigration enforcement might be. and who would be most impacted by their enforcement.

Certainly, it can be argued that these questions have political implications. We have an election coming up in two months in which one of the two major presidential candidates has put the issue of immigration enforcement, as well as of important aspects of our legal visa system, at the heart of his campaign.

But, how our immigration laws will be enforced, whom they will be enforced against, and what changes there might be in our legal immigration system are essentially legal questions. If immigration lawyers are not interested in addressing and discussing these issues, what purpose is there to our profession, and what kind of services are we providing to the public and to our clients?.

Even though neither Donald Trump nor his wife has been charged with any violation of the immigration laws, and there is virtually no chance that either will ever be, these allegations might well have larger implications regarding actions that Trump might or might not take as president which could conceivably have profound consequences for America's immigration system and immigration enforcement.

To begin with, let us go back to the allegations, based on her own statement quoted in my previous post that Melania Trump might have obtained a visitor visa by fraud through concealing her intention to work as a model, and then lied about her intention to an immigration inspector when entering the US.

Assuming hypothetically that these allegations were ever to be proven, which they have not been, what would legally follow from that based on Melania Trump's known subsequent immigration history?

First, we know that, eventually, after having allegedly used a visitor visa in order to work as a nude model (according to photos which appeared in the New York Post), she subsequently obtained an H-1B visa allowing her to work in the US legally.

The H-1B petition filed by her employer (now known as Form I-129) would not have had any questions relating to Melalia's visa history. (The current form only contains a question whether the H-1B beneficiary has even been denied H-1B classification. One can safely assume that Melania Trump's sponsoring modeling agency truthfully answered "no" to that question.)

But the problem would have come up when Melania returned to Slovenia to apply for her H-1B visa stamp (if she did - it is also possible that she might have changed her status in the US from B-1 or B-2 to H-1B, in which case there would also not have been any questions about her visa history).

But assuming that Melania did go back to her country at some point (which she might have done just for travel purposes, even after changing her status to H-1B in the US if she in fact did so), she would have had to answer a question on her US embassy visa application about whether she has ever procured a visa or sought to enter the US through fraud or material misrepresentation.

A truthful "yes" answer to that question would have permanently disqualified for for a visa and made her inadmissible to enter the US. Therefore if Melania Trump had previously obtained a visitor visa through fraud and then fraudulently used that visa to enter the US, as alleged, it can reasonably be assumed that she would also have strong motives to lie in her hypothetical, unproven, H-1B US embassy visa application by allegedly falsely answering "no" to the above question about her immigration history.

Eventually, it is undisputed, Melania Trump obtained a green card. If she did so in the US through adjustment of status, or even if she did so by applying for an immigrant visa at the US embassy, she would have had to answer yet another question about whether she had previously engaged in visa fraud or material misrepresentation.

Under the above assumptions, she would very arguably have had motives to lie in answer to that question too. This does not mean that she necessarily did, and I am not making any such allegation.

Finally, it is also beyond dispute, Melania Trump became a US citizen. The USCiS naturalization application (Form N-400) has a question about whether the applicant has ever committed a crime that he or she has not been charged with or convicted of. How did Melania Trump answer that question? This is also something about which no information appears to be publicly available.

But, as the ancient Greek poet Hesiod wrote (in a quite different context):

Alla tiei moi tauta peri dryn ei peri petron;

"But why is this any more to me than a tree or a rock?"

Suppose that Melania Trump, and or, models working for Trump's own company, allegedly, did make one or more misrepresentations on some visa or immigration applications one or two decades ago.

Aren't there in all likelihood millions of immigrants in the US who have done the same thing or similar things, as those alleged in the case of Melania Trump or Trump's own company's models i.e. engaged in relatively minor immigration violations which have caused no harm to this country or to the American people?

Why single out Melania Trump or even Trump's own company's models for special scrutiny?

I will answer this question with another question:

Is Melania Trump the only immigrant in America with (alleged) minor, non-harmful, immigration problems, that even if the allegations were ever to be proven, would pose no danger whatever to America?

If she is cut some slack, as she should be - no one is arguing that any action should be taken against America's possible future first lady because of her alleged immigration history - are there no other immigrants in America who may have also allegedly run afoul of our immigration laws but who should not also be cut some slack as well, even if they are not white and not from Europe?

As former AILA president David Leopold says in a Washington Post article cited in Part 1 of this series entitled: Weeks after campaign pledged answers, big questions about Melania Trump's immigration status linger:

"To me what this shows is that this broken immigration system...forces good people to do things they ordinarily wouldn't do. Such as cross a border without authorization, such as misstate the purpose of their trip...Clearly, immigration touches his own family directly. If this is true, then Donald Trump has missed an important opportunity to reach out to immigrants and say, 'I understand how difficult and dysfunctional this system is, and I want to stand with you, and I want to fix it'"


The key words in this quote are "I want to stand with you". Those are the words that a rational, humane, immigration system, such as the one that allowed Melania Trump to become a legal temporary H-1B worker, and, afterward, a lawful permanent resident and ultimately a US citizen, should be based on.

Instead, despite that fact that Donald Trump might be expected to have more empathy for immigrants based on the experiences of his own wife and his model agency's own employees, the words we are hearing from him sound much more like, not "I want to stand with you," but "I want to deport you".

But the harm to our immigration system and to millions of immigrants or would-be immigrants in America goes beyond issues of deportation.

Trump has stated on the record that he now wants to strike at the heart of our legal employment-based immigration system by abolishing the H-1B visa, as well as the closely related green card through labor certification.

See: New York Times, August 16:

Donald Trump Wants to Cut Visa Program He Used for His Own Models:


http://www.nytimes.com/2016/08/17/us...dels.html?_r=0

As is clear from Melania Trump's immigration history, she was eventually approved for legal H-1B work status in the United States. This was her legal lifeline to permanent resident and US citizenship status later on, not to mention marriage to a famous business tycoon, Donald Trump, and now, a chance to become America's first lady.

Because of the importance of the H-1B visa in his own immediate family, one might expect that Trump would have some empathy for the hundreds of thousands, or millions, of educated professional workers from India, China, and around the world, whose hopes of being able to live and work in the United States, contribute their skills and talents to our society, and one day become Americans themselves, depend in large part on this visa, which is already in far too short supply for a modern, industrial nation such as the US that plays such an important role in the world economy.

Trump has also reportedly used this visa for over a thousand of his own employees. Is it consistent with the American concept of fairness and equal justice for all under law, that a legal visa which was so crucial for Trump's own family and many of his own employees, should no longer be available for everyone else who might be qualified?
________________________________
Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. For more than 35 years, Roger has been helping mainly skilled and professional immigrants from various parts of the world obtain work visas and green cards. He believes that maintaining an immigration system based on diversity, without regard to race, religion or national origin, as we have had at least in principle for the past half century, is essential to the survival of our values, our way of life, and our democracy.

Roger's email address is algaselex@gmail.com







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Updated 09-16-2016 at 05:48 PM by ImmigrationLawBlogs

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Comments

  1. MKolken's Avatar
    Roger, as I have explained, you aren't trying to "embarrass" Donald Trump. You are trying to get his wife deported for political gain.

    Pretty low.
    Updated 09-12-2016 at 02:04 PM by MKolken
  2. Johannes Valentino's Avatar
    Quote Originally Posted by MKolken
    Roger, as I have explained, you aren't trying to "embarrass" Donald Trump. You are trying to get his wife deported for political gain.

    Pretty low.
    Roger Algase is making a valid assesment regarding Melania Knauss' possible fraud: if the records prove that she indeed committed dolo while obtaining a lawful presence in the United States, then legal proceedings of denaturalization could be initiated.

    Not political gain is being pursue in Algase's assessment; instead Kolken seems not to grasp what critical thinking is all about.
  3. MKolken's Avatar
    Quote Originally Posted by Johannes Valentino
    Roger Algase is making a valid assesment regarding Melania Knauss' possible fraud: if the records prove that she indeed committed dolo while obtaining a lawful presence in the United States, then legal proceedings of denaturalization could be initiated.

    Not political gain is being pursue in Algase's assessment; instead Kolken seems not to grasp what critical thinking is all about.
    Johannes,

    The point that I am making, as your feckless ad hominem illustrates, is that an individual who purportedly represents immigrants for a living is calling for the deportation of the wife of a political candidate because he opposes him politically.

    As someone who has spent the past 20 years defending immigrants from removal, I find this to be tragically ironic, and sad.
  4. MKolken's Avatar
  5. ImmigrationLawBlogs's Avatar
    With all due respect to Matt Kolken, a distinguished advocate and defender of unauthorized immigrants who has earned the admiration and respect of everyone who cares about immigration rights in America, he is putting words in my mouth and attributing something to me that I have not only never said, but that I have expressly disclaimed - namely that Melania Trump should be denaturalized and deported if alleged visa fraud against her is ever proven, something that would appear to be highly unlikely under current circumstances.

    My point in bringing up the issue of Melania Trump's alleged immigration history is to show a possible double standard between Trump's own harsh, if not draconian immigration enforcement proposals against millions of immigrants in America who have various types of immigration problems, and his unwillingness to review the full details about alleged problems that his own wife may have.

    This also applies to allegations I have mentioned to the effect that Trump's model companies may have brought its own models in by fraud and encouraging them to lie to immigration officers.

    Both these issues relate to Trump's own good faith and trustworthiness on immigration policy.

    To accuse me of calling for Melania to be deported in order to retaliate against Trump is simply without foundation, no matter how often Matt may choose to repeat this.

    Roger Algase
    Attorney at Law
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