The Melania Trump Immigration Controversy

where-is-immgprps2Here is the deal, Melania Trump is not running for office but she inserted herself into the fray by telling us, immigrants, that we should do it the “right way”. In addition, her husband, Donald Trump has made immigration the center piece of his presidential campaign platform. This, and the fact that Melania Trump is an immigrant as well, makes her immigration story an important facet to Trump’s candidacy.

So let’s review. Donald Trump has said that he wants to enforce the law and build a wall on the US-Mexico border. Donald Trump has stated that Mexico sends the worst of its people to the US. There are inconsistencies in Melania Trump’s immigration story, although she insists that she immigrated the “right way”.

Melania Trump has been secretive about her past. The little information we have is derived mostly from previous magazine profiles and a single biography released by Slovenian authors: Bojan Pozar and Igor Omerza. The unauthorized biography; Melania Trump – The Inside Story: The Potential First Lady has revealed previously unknown details about Melania Trump’s past. We also, of course, have Melania Trump’s comments made to the news media in response to the controversy.

On Tuesday, August 9, 2016, the Donald Trump presidential campaign issued a statement that Melania Trump will be holding a press conference to address her immigration controversy in a “couple of weeks”. We still do not know the exact date of the press conference. What we do know is that the historical record does not show Melania Trump following the letter of the law as to how she ended up in the United States.

Although, I am not an attorney, I have navigated the US immigration system from a very young age. Many times I stood in line, as a child, at one of the US ports of entry between El Paso and Cd. Juárez waiting to be called over by an often times gruff official who would looked me over and ask me questions about my intentions. Sometimes he would stamp my I-94 (arrival departure form) with a B1/B2 stamp, or sometimes just a B2 stamp. Although I possessed a border crossing card, it limited me to 72-hours at a time and to the El Paso area. Without the I-94 I could not cross the checkpoints, like Sierra Blanca, that dot the highways out of El Paso.

However, technically and under the law, I had to remain within 25 miles of the US-Mexico border if I did not possess an I-94. It still remains an unanswered question whether the law intended to mean the US port of entry I entered through, or literally within 25 miles of the US-Mexico border. In other words, could I walk along the border on the US side and still be legal. The point is that no one, not even the border officials, really understands the convoluted immigration system.

Actually, I went to Las Cruces many times without the I-94. That put me in an “out of status” designation but it was common for many border crossing card holders to head to Las Cruces without the I-94. To many Donald Trump supporters that would make me an “illegal alien”. (FYI – I’m using the term on myself, so PC police hold on a minute.)

Once I actually crossed the US border illegally.

Well not really, let me explain. In 1983, I competed in the Crimes Stoppers Race between El Paso and Cd. Juárez. Technically, I was supposed to stop at the border and present my border crossing card. I didn’t even have it on me. I was waved through by immigration officers.

There were also many times that US border patrol agents, at the Sierra Blanca checkpoint wouldn’t even give me the opportunity to show them my papers, they just waved me on through. My Mexican passport was in my hands, in plain view, but the visa allowing me to continue was in the closed booklet. They had no way of knowing I was “legal”.

Other times, while crossing the US-Mexico border at the Cordova point of entry, I was asked “what are bringing back from Mexico” and I responded “nothing” to which the officer would tell me to proceed without inquiring about my immigration status.

The two points that I am trying to make is that prior to 9/11, the enforcement of immigration laws were laissez-faire at best and often times no one knew how the process was actually supposed to work. Obviously, 9/11 changed all that, except that the laissez-faire attitude of the law created a system that is impossible to follow in a real world environment. The other point is that although I am not an attorney, from many years of personal, hands-on experience, I understand how the immigration system works, both according to the law and in a real world application.

Against this backdrop I can see how it is that Melania Trump’s stance that she did it the “right way” both accounts for the apparent discrepancies in her history and why it is very possible that she, herself, was in violation of the immigration laws that Donald Trump wants to severely enforce.

We know that Melania Trump has stated that she came to the US in 1996. She has stated that she received an H-1B visa. In my post of July 21, 2016, (link) I showed you that Melania benefited from the H-1B3 subcategory for “models” with a “distinguished” career. It is yet unclear how Melania Trump compares to the likes of Cindy Crawford, which in my opinion has had a “distinguished” career, but I digress.

However, we know that the H-1B visa is always held up as example of immigration abuse because it is routinely misused to displace US workers on the technology sectors as well as by modeling agencies. Donald Trump, himself, posted on his campaign website that visas like the H-1B visa are passing over qualified US workers and is one of the reasons for “incomes collapsing” in the US.

Even if we accept that Melania Trump had an H-1B visa authorizing her to work in the US, that does not explain how she entered the United States in 1995 to pose nude for a photospread. This is where things get tricky.

Melania Trump, herself, has stated several times that she would frequently go back to Slovenia to get her visa “stamped”. For argument’s sake, let us accept that Melania would go back and forth between Slovenia and the US for her modeling career before 1996, when she has said that she received her H-1B visa.

That would mean that she likely had an I-94 stamped with either a B1, B2 or both designations. The B2 is intended for tourists to the US. The B1, although classified as a business visa, is really a capture all type of visa for performing work related activities. For example, you can come to the US in pursuit of a business activity, such as training users of a European subsidiary on how to operate a new web portal. I used this type of visa for the work I performed for a European company in the late 1990’s.

The key to this activity is that any money I was paid was not paid in the US, but rather by the European company that hired me in the first place. The checks went to my Mexican bank, by the way. In this case, it is very possible that Melania Trump was hired by a European modeling agency to participate in the photoshoot in the US. The B1 visa would have legally allowed that. But, the B1 visa can also be used, for example, to negotiate a contract with US companies hiring my Mexican-based company. I did that various times. I also used the B1 visa for extensive training in Chicago at the AT&T facilities to learn about how to manage a Unix environment. Technically, in pursuance of exposure, no pun intended, it is conceivable that Melania Trump came to the US to do the nude photoshoot to bolster her modeling career.

It is a stretch but in the immigration environment of the time, it was likely permissible under the wink-wink system.

In the 80’s I was invited to compete in a NCAA Division 1 cross-country competition and when I inquired what type of visa I needed at the border, the official, with a puzzled look on his face, looked at the letter of invitation and asked me if I could afford the trip. I said, my college is paying for it. He said, ok, and stamped my I-94 with a B2, tourist visa and said “good luck in the race” as he called over the next person in the queue. Somehow, a competition was a tourist activity but who was I to argue?

As you can see, even the border officials tasked with issuing the appropriate visas did not fully comprehend what the law required.

I need to point out to you something that is important but often overlooked because of the complexities of the visa system. Back before 9/11, it was generally expected that foreigners would go to the nearest US consulate and apply for a non-immigrant visa to the US. A visa issued by the consulate only authorized the holder to travel to the US, it did not automatically allow entry. That entry part was completed via the I-94 paper. It was at the point of entry where the US official would look at the visa, ask you questions and scrutinize the I-94 you filled out.

Most of them, but not all of them, would type on the computer in front of them presumably getting more information about you. The official would then stamp the I-94 with a B1, B2 or both and then a length of time. It varied from one to six months. Non-immigrant stamps could not exceed six month periods.

Now, you were supposedly required to turn in your I-94 on your way out of the country. It was intended to prove that you left the country when you were supposed to. I was admonished many times to make sure I turned it in, on my way out. However, if you left via an airline, depending on the airport, you could turn it into the immigration official on the way out. Ships were the same. As a crew member, there were people who took care of that for me.

However, if you left via a car, like I did many times, it was rather difficult to return the I-94. You see, the Cordova Bridge required me to exit the US, make a U-turn, wait in line ask the official to allow me into the visa processing extra-small parking place, wait for my turn only to be given looks of exasperation by the immigration official looking for an application to enter, instead of someone returning the I-94 as required. Many times, I was told, why bother as I saw my I-94 end up in the trash can.

But, I was afraid that when they typed in my information on their secretive computers, it would blurt out an alert that I hadn’t turned in my last I-94 giving the official a reason to take away my border crossing card for violating the rules of overstaying in the country.

Many times I tried to comply with the law and many times I was admonished for even trying to. Think about it for a moment, I’m a teenager trying to abide by the rules, only to watch my I-94 tossed into the trash can by an official giving me the look of contempt.

The issue was that the “wink-wink” system created a situation where no one could follow the law, not me, the I-94 holder, nor the officials tasked with enforcing the law.

I finally gave up trying to comply and kept asking for an I-94 never having the computer spit out that I hadn’t turned in my last one. Up until after 9/11.

Things changed after that and there was a more concerted effort to enforce the laws. It suddenly became important to ensure that my last I-94 was returned as required, even though it still ended up in a trashcan many times. It also became much harder to receive an I-94.

I realize this is lengthy but it needs to be understood in order to understand what the controversy is for Melania Trump.

As I wrote earlier it is much easier to track the I-94’s when departing from an airport or via ship. Melania Trump likely departed via the airport. This explains why she had to make frequent trips to get her visa stamped.

What likely happened is that Melania Trump had a US visa allowing her to enter the US. At the airport, an immigration official would stamp her I-94 with either a B1, B2 or both designations and give her a length of time. She had to depart before the length of time, one to six months, had expired. She would then return and receive a new I-94.

It is still unclear about whether her photoshoot was legal under the I-94 she likely held at the time. However, that is now only a minor issue for her now.

We still have a problem with the timeline. Melania Trump has stated that she received an H1-B visa in 1996. A modeling agent has said that he sponsored her for the H-1B visa. However, according to Melania Trump, she received a green card in 2001.

Now let us follow the time line. The H-1B visa is issued for three years and can be extended another three years for a total of six years. 1996 to 2002 would make it six years. Somewhere before the last three year extension that Melania Trump presumably received, she changed her status from non-immigrant to immigrant.

Once again things get murky here. Changing the status from non-immigrant to immigrant is very difficult unless you can jump to the top of the line through a marriage to a US citizen. We know that Donald Trump did not marry Melania until 2005, so he was not the US citizen ticket for Melania Trump. Donald and Melania Trump’s marriage license clearly states that she had never married prior to her marriage to Donald Trump. However, the same marriage license, where Melania marked that she had never married previously, has a “one” marked under the number of times she had been previously married.

Again, we are left without specificity and Melania Trump unwilling to offer more details other than to state that she did it the “right way”.

Attaining a green card, even for someone from Slovenia is a lengthy, difficult and expensive process. I know, I went through it.

All of this leaves us with a big question mark, exactly how did Melania Trump receive her green card?

This is an important question that deserves an answer to because Donald Trump has made immigration the cornerstone of his presidential campaign.

Some of you likely noticed that I did not ask about her visa status in 1995. The reason is simple; the US immigration system is so broken that reliable records from 1995 just do not exist. Melania Trump could tell us that she was issued a B1 stamp and was in compliance and it would be difficult to prove otherwise without someone publishing a paycheck issued in the US and one of her old I-94 for the same time period. If she tells us, in her press conference, that she used another type of visa, for example, a K visa, it would be much more likely that those records would exist in the federal databases.

I fully expect her upcoming press conference, if it even happens at all, to be full of rhetoric about doing it the “right way” but providing little, or no proof of the “right way”.

If Donald Trump wants to take control of the immigration problem, shouldn’t he start at home, with his wife? That’s the question I really wish all of the Trump supporters would honestly answer for me.

Unfortunately, they are unlikely to answer the question because it raises some uncomfortable truths.

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