Voice of Immigration


Episode Summary

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? 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 drastically reduce.

Episode Notes

How Melania got into the U.S. 
About the EB1 Considering the Evidence
 Meeting the Criteria 
Quantifying Extraordinary ability and Awards 
Elite Membership Major Press and Publications 
Bringing in the Experts 
Did Melania ever work illegally?

Read the Full Article

Find the Complete Guide to Mastering the EB1 Visa.

Episode Transcription

David Kelso: Hi, I'm Dave Kelso. Welcome to OnlineVisas.com, The Immigration Show. Here with CEO of OnlineVisas.com, Jon Velie. Jon, how are you today?

Jon Velie: I'm great, Dave, how are you?

David Kelso: I'm doing really, really well.

Jon Velie: Excellent.

David Kelso: We were talking last week about the President's new merit-based immigration system.

Jon Velie: Right.

David Kelso: And I had some questions, and I'm glad I got to sit down with an immigration attorney and ask them. The First Lady, Melania Trump, is an immigrant to this country.

Jon Velie: She is.

David Kelso: And I understand that she came into this country on an extraordinary ability visa, and I'm wondering if you could tell me about that. And under the new immigration system, would she be allowed into the country today?

Jon Velie: Great question. Actually, she's a citizen. She's an American citizen now. We know that because she sponsored her parents, which she can do as a citizen of the United States, to become green card holders. That happened not too long ago, a few months ago really. That is what the Trump administration calls chain migration, and they're trying to drastically cut. First of all, maybe her parents wouldn't be able to come in. We can back it up and find out if Melania have gotten in or not. In myth busters style, does Melania Trump meet the credentials of the EB1 visa?

David Kelso: It's a fair question. Would she, today?

Jon Velie: Well, we don't know everything about it, because like taxes, not all of that has been released to the public. But I've looked at a lot of things, and noted a number of articles on somethings. What I learned in 1996, Melania Knavs came in on a B1-B2 visa. Now, that's a visitor visa.

David Kelso: Right.

Jon Velie: That only allows you to come in to visit, see friends, but you can also interview for jobs. We know that in 1996, that she obtained a H-1B visa, which one of the criteria for the H-1B is to be a fashion model. If she came in, had some interviews, and they liked her, and they offered this job to her, she could have obtained the H-1B visa. There may have been some issues around the lottery, which exists today. But, she may have gotten that, and that could all be legitimate.

David Kelso: Just as a brief aside, explain the lottery to me right quick.

Jon Velie: In this case, it probably didn't come up, but the lottery means that there's only so many H-1B visas available. Even though our country's leading a lot of industries, like technology and medicine, there are only 65,000 H-1Bs available per year.

David Kelso: And it's not first come first serve, they have a lottery?

Jon Velie: Yeah. Well, everybody has to apply for the fiscal year, which is October 1st. The earliest you can apply is April 1st. The regulations state it has to be open for five days. Between April 1st and April 5th, all the H-1B visas have to go in. This year there were almost 200,000 people applying for the 65,000. Plus, an additional 20,000 for graduates of advanced degrees, from United States universities (Masters and PhDs). This year they changed it to put the Masters in front. We've seen a lot of these visas coming back already with our Master's degrees. We're at about 50% of the visas we put in, going through the lottery this year. We still have another traunch or so to go, we don't know all of those answers. Hopefully, that will go up.

Jon Velie: She obtained her H-1B and one of the categories of the H-1B, very specific, is the fashion model. That makes sense. That probably existed. One of the questions that has come up is whether or not she had worked illegally. We don't know that. USCIS may or may not know that, but if she was on a visitor visa, and did any of her work in the United States prior to obtaining the H-1B, that would have been working without authorization.

David Kelso: Undocumented work.

Jon Velie: That would be undocumented work, and then she would be deportable. One of the things we've seen in the Trump administration, that we've never seen before, is actually an analysis of permanent residency, and even citizenship, to determine if that citizenship was obtained through fraud. If it were to ever 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. Again, we've never seen that. I always made the statement that in the United States, once you're a citizen, you're a citizen. You can be executed for treason. But very seldomly-

David Kelso: Will they revoke your citizenship.

Jon Velie: Right. You would die as an American. Now, if they ever revoked it, it was usually over grounds like treason, not that I've had any of that experience personally, but I've heard about it. Never before have you seen an undoing of citizenship based on people going back through the cases and doing that. The Trump administration could do that, or USCIS could do that if they discovered that Melania had been a fashion model prior to her obtaining the H-1B.

David Kelso: But we understand the chances of that happening are slim to none, right?

Jon Velie: Except that they are doing that, now. People-

David Kelso: To normal people, not the First Lady of the United States.

Jon Velie: Probably not the First Lady, but it's a slippery slope.

David Kelso: Okay.

Jon Velie: She's not always going to be the First Lady.

David Kelso: Point taken.

Jon Velie: These laws and policies that are going in today, don't just cease being laws and policies. That would be interesting. Let's go onto the EB1. Now, the EB1 has been declared in the press, over Melania, the Einstein visa. I've been practicing 26 years, I've never heard it called that. 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. What I do when I'm talking to clients is I really say, "Okay, what's your niche? What do you do that's better than other people?" It could be anything. May not be a doctor, they don't have to be the best doctor, maybe they're the best researcher into some sort of very obscure science.

David Kelso: You have a lot of sports immigration, maybe they're the best Rugby player, baseball player.

Jon Velie: Maybe even defense men.

David Kelso: Okay.

Jon Velie: There's a lot of... I'm a big baseball fan, and Billy Bean with the Oakland A's created a whole line of statistics out there that never existed before, that make the Oakland A's really good when they didn't have much money.

David Kelso: Right. Money ball.

Jon Velie: Money ball. In money ball there's all these new statistics. Maybe there's some people that are really good in some of these obscure statistics. And we're seeing a lot of that in sports when guys are coming up for contract extensions. A number of our clients have been extended recently, in their contracts, and maybe there's these new statistics that are not just most points, most rebounds, and things like that.

David Kelso: Sure.

Jon Velie: If they can show that they're at the top of their particular piece, then they could get this visa. That's what we do all the time. We get to define the box, and then we go out and see how did they get notoriety for that.

David Kelso: Sure.

Jon Velie: Okay. If we're looking at Melania-

David Kelso: And the EB1.

Jon Velie: And the EB1, I would say, "What do you do?" If she were sitting here, where you're saying. Hello, Melania.

David Kelso: Hello. It's nice to see you.

Jon Velie: What do you do?

David Kelso: I'm a fashion model.

Jon Velie: Okay. Let's talk about your fashion model. Looking at some of this research, we found out her credentials... Again, we've never seen the case, so we're just going off of whatever we see here. But we found that a couple things the Washington Post reported, that at the time that she filed... Now, she filed in 2000, it appears, and then she obtained this visa in 2001. That's about a good standard. Anywhere... The fastest we've ever seen an EB1 is four months. A lot of times it's around nine months. I tell people to settle in for about a year to make that determination. Now, you can do premium processing today, and get a decision made in 15 days, but immigration, this is their golden child. This visa, they guard like a serpent would guard-

David Kelso: The dragon and the treasure.

Jon Velie: The dragon and the treasure, right. It's tough to have them make a decisions that quickly. There's a lot of strategy into not forcing their hand to make it quick, let them take their time. What we know is that, the Washington Post report, that she had runway shows in Europe. She had a Camel cigarette billboard ad in Time Square, and her biggest job was a spot in the swimsuit addition of Sports Illustrated, which featured her on a beach, in a string bikini, hugging a six foot inflatable whale.

David Kelso: That's an extraordinary ability.

Jon Velie: That is. Well, maybe. The point is, let's look at these things and see if these are what we call primary evidence.

David Kelso: Sure.

Jon Velie: Primary evidence I say is a brick. Secondary evidence is an opinion letter, and they come in two forms. One is an expert, who is not somebody that works for Melania, or Melania worked for, but somebody that can look at this and determine whether or not, in their opinion, because they're fashion models themselves, or maybe-

David Kelso: Fashion journalists or somebody like that.

Jon Velie: Yeah, Vogue Magazine. To say, "This is what's really a big deal about this." Right? Those people would interpret this evidence for immigration to tell them, "This is why you need to care about this." Another type of opinion letter is a referral letter, and that might be somebody she worked with to say, "Why was she... What did she do for the particular job. How did that impact it." Let's look at these things under the criteria. If this is all the evidence we have, can we get to the EB1? I think it's pretty interesting. 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.

David Kelso: Couldn't you say that being on a Camel billboard in Times Square, that's an award for a fashion model, isn't it?

Jon Velie: Well, it probably doesn't meet that one, but there are some other criteria I think it does meet. The Camel cigarette board, would be that she'd worked for Camel. And Camel would be an organization of distinguished reputation. I think we all know that it's one of the biggest cigarette brands there are out there.

David Kelso: Don't smoke, kids. No smoking. Don't smoke.

Jon Velie: Right. Being on their billboard would be a significant ad for them.

David Kelso: Yes.

Jon Velie: Times Square-

David Kelso: In Times Square.

Jon Velie: Right. Is the biggest ad you can be on, that's indicative of somebody that's probably extraordinary in itself, but the criteria is 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, "We had her on a contract. She was paid X amount of dollars." If it was a lot of money, that could meet high salary compared to others, which is one of the criteria. They could say that this ad had so many different people see it, and they might have some metrics to determine how many people see these ads.

Jon Velie: You could compare that ad to other ads. You could compare it to other ads in Times Square, you could compare it to other ads anywhere, and say that maybe the most seen ad that Camel had run was this, and if you compare her to other extraordinary ability models, that that type of viewership was up there. I think that's a really good piece of evidence. It could hit a couple of those different things. She may have been working for a modeling agency that got that job, and they may say in their letter, "Here's the contract saying she worked for us. She beat out all these other models to get that gig." Obviously, it would be a very premium one to get.

David Kelso: Times Square.

Jon Velie: It would probably pay well. And they could talk about that. They could talk about her modeling style, and why it was better and significant in the metrics that you judge models, and determine that she was the type of model that did well here. That could be the critical role. They could have been paid a lot of money by Camel compared to other things that they've gotten, and that would be significant for that modeling agency. And therefore, that would probably meet that criteria. You could hit that a couple of different ways. I think that's pretty interesting right there.

David Kelso: Let me reset just a second. We're talking with CEO of OnlineVisas.com, Jon Velie. And discussing Trump's new immigration plan, a merit based immigration plan, and whether or not First Lady Melania Trump would have been eligible for an extraordinary abilities visa, and EB1, today. We're going through some of the evidence now. Jon, back where you were.

Jon Velie: Okay. Back on the existing EB1, which hasn't been changed. The Trump plan has not changed that, that we've seen yet. We haven't really seen a lot of detail on it, so the EB1, these are requirements that are existing as they were with Melania when she applied for it. And would be today, if she came into our office and we're having this conversation. To go back to that, the Camel cigarette billboard, may have gone up for an award itself.

David Kelso: Sure.

Jon Velie: If Camel wins an award based on this billboard ad, by a national or an international award granting group, then she could say, again, connecting with the letter from the company on her involvement in it, she might be able to take credit for that national/international award, which is also another criteria. Besides awards, because we don't know if she won any or not, she may have won numerous ones, we know that she was a runway show model in Europe. What I would ask her that, to dig that down deeper is, "Who did you do that for?" Again, was it a good modeling agency, did they win awards? Did any of your modeling shows win awards? Did you get paid well for those awards?

David Kelso: Did you ever meet Mick Jagger?

Jon Velie: Always a great thing to know. Love Mick Jagger. Maybe Mick has some insight that he could tell us about why she was a great model, he likes to take them as I understand.

David Kelso: He could write a letter.

Jon Velie: Bianca Jagger had a great career. She might be the better author, by the way. Depending on how they knew each other, maybe Bianca would get involved. There's a lot to know about those runway shows. Again, how many people came? Was there a lot of money that was made? Who did she work for? Were these well known brands?

David Kelso: Demonstrate the extraordinary level here. Not just average modeling, but extraordinary modeling.

Jon Velie: The best models will go to the best shows, I assume.

David Kelso: Correct.

Jon Velie: And then we would have the experts quantify, "This show's really extraordinary. Very few people get picked. Here's the selection process to be in that show." Another one of the criteria, besides awards, and besides high salary, we've talked about that. And besides working for an organization of distinguished reputation, is being an elite membership. An elite membership is best defined on what's not an elite membership. It's not an elite membership if there's an organizations of all models, and in order to be a model you pay a due. That wouldn't do it. However, an organization may exist within the modeling industry, and I don't know if it does or not, but this is what I would ask Melania, is, "Have you been invited into a very unique group?" Maybe it was a show. Maybe it was think tank. Maybe it was some sort of organization in which models received a membership based on their achievements.

David Kelso: The illuminati models.

Jon Velie: The illuminati models. Right. She may have been involved in one of those. We don't know.

David Kelso: Okay.

Jon Velie: The next thing is press about her.

David Kelso: Okay.

Jon Velie: That press is significant enough, if it's in either a major publication, or a trade journal. Now, there's probably a couple that could go in here. Sports Illustrated had her in their swimsuit edition. That's both... That would be major media. We would prove it's major media by looking at their press kit, and we would look at how many subscribers they have, how many viewers they have on SportsIllustrated.com, if they had any going on in 2000. The Internet was going along there. I would imagine they were leading, Sports Illustrated, we all know as the top sport's journal, and the Sports Illustrated swimsuit model is always one of their highest ranking ones. We know that in common knowledge. What we would do is we would go from our common knowledge to learning specifically about that. Sports Illustrated itself could document some of that.

David Kelso: Sure.

Jon Velie: Provide us some information, if they would. Or, I bet a lot of it is publicly available. You can go to their press kit, find out about those things, and you would support that. Sports Illustrated swimsuit model would hit that category. And I assume if she was in Sports Illustrated swimsuit model, she's probably been in others. I don't know this, has she been in Elle, or Vogue, or these other categories. And if she had, she could probably have a wide portfolio of those that would do that. I would assume that by being on the Camel cigarette billboard and in Sports Illustrated, she had gotten to that level. I can't imagine those are the only two ads she had been in. I think we're there. Those are the evidence that we have, that we know of, and those are a number of the criteria. You need to hit three, but merely hitting three isn't enough. You have to show you've risen to the top of the profession, and that's where the experts can come in and they could quantify that, or they could give their opinion based on these pieces of evidence.

Jon Velie: 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. I think those, you have a knee jerk that that probably is correct. We are educating USCSI examiners, and if it had been a very small magazine, or she was an unknown tool calendar girl, didn't have her name, something like that, that's not the same as Sports Illustrated.

David Kelso: The Snap-On calendar doesn't count.

Jon Velie: The Snap-On calendar, well, maybe it does, but it's definitely not Sports Illustrated swimsuit model. In any case, if you look at that, I think if Melania Trump came into my office and she probably wouldn't, but if somebody else had these same criteria did, I would take that case, and I think I would probably win it. The question is, was she in status? Did she ever work illegally? Once she got her EB1 under the I-140 approval, she'd have to then adjust her status from the H-1B, and that's where they're going to look at her back taxes. In those back taxes, if they discovered there's some payments prior to her H-1B in 1996, that's when they could say, "Wait a second. You worked without authorization. You've been without authorization for this very long time." She could be deportable.

Jon Velie: Under the heightened scrutiny we're seeing in the Trump administration, they may have looked harder at that than they would have under her. If that was the case, she would not get her green card, and she would not become a citizen, and she would not be able to do the chain migration for her parents. She's definitely benefited off of immigration. And what I find is a very merit-based process.

David Kelso: Sure.

Jon Velie: This is completely merit based. To circle back to the beginning, with our merit-based process, we have not seen any detail on the actual qualifications of merit-based. They're just saying we're going to go to merit based. We know by just discussion points, that that may emulate the Australian model. What's really interesting about this, is they're going to have to unveil these regulations.

David Kelso: Yes.

Jon Velie: Either in a policy and if they do the policy incorrectly, it's going to be shot down in the courts. And there is a lot of litigation going on in immigration right now.

David Kelso: I'm sure.

Jon Velie: And the courts have been shooting them down. Recently, a colleague of mine, Jonathan Wasden, is representing a number of Indian tech firms, Americans that own tech firms that hire a lot of Indian programmers and developers, and other people in the high-tech industry, has just argued that immigration has been arbitrary and compressus, and how it's looking at its regulations. Putting out memos, they're not going through the standard course of when you change a regulation, you put it out there for notice, you let the stakeholders then determine whether or not they have some insight, and you slowly go about this process to change law.

David Kelso: Comment period.

Jon Velie: Right. There is no comment period in these Trump changes.

David Kelso: Trump tweets.

Jon Velie: That's kind of where we're going. We haven't seen it yet. In any case, that will be interesting to see what happens, but in my opinion, if we're doing a myth busters on whether or not Melania would get the EB1, I think she would.

David Kelso: Approved. That's Jon Velie, he is the CEO of OnlineVisas.com. Finding out factual and up to date, and accurate visa and immigration information can be tricky. Drop Jon an email at Jon@Velielaw.com, or visit OnlineVisas.com today. Thanks.

Jon Velie: Hey, don't forget to like and subscribe if you're looking at our podcast, or our YouTube, and we'll see you next time.