There is speculation by some in the media that Melania Trump may have obtained her lawful permanent resident status, LPR, (Green card) despite having a possible visa violation.
Let’s skip the speculating, because we don’t know what her status was prior to her marriage with Donald Trump. But, based on what we do know, we can discuss as follows:
1. Was Melania, born in Slovenia, permitted to conduct a photo shoot in the U.S. in the mid-nineties?
She is reported to have had the name Melania Krauss when She performed modeling shoots in the U.S.. As a model, like any other non-immigrant who has not obtained a work permit, She cannot be employed in the U.S.. She can work for free, She can be self-employed, or She can run a business, but She can not be a paid employee of a U.S. company without work authorization.
So, yes, She was permitted to do a photo shoot but could not be paid.
2. In what specific visa status could She work as a model?
*** B-1 business visitor. If She was not paid for her work. The most common visitor visa, with a maximum stay of 6 months, the B visa is issued to tourists as a B-2, or for business as a B-1.
Models use the B-1 for photo shoots to build a resume and pardon the pun, exposure. They cannot receive pay for the work.
Ms. Trump could have done the same activity if She entered under the Visa Waiver program, with maximum stay of 3 months, except that Slovenia, a part of the former Yugoslavia, wasn’t added as a U.S. visa waiver country until September, 1997.
*** H-1B visa. This category is usually reserved for persons in high-skilled employment, with at least a bachelor’s degree, but an exception has been made for modeling. The H-1 visa permits compensable employment and a continuous stay in the U.S. for up to 3 years, and then is renewable for an additional 3 years.
3. What if Melania worked without authorization (for compensation) prior to her marriage to Trump and subsequent Immigrant Visa application?
It would not have prevented her from filing the visa application. Spouses of U.S. Citizens are given special status throughout Immigration law, and applying for Lawful Permanent Resident LPR status is one example. Unauthorized employment in the U.S. does not make spouses of U.S. citizens in-eligible to file for a green card.
THE TEMPORARY PROTECTED STATUS (TPS) PROGRAM
The Obama Administration just extended TPS status for Syrians through March, 2018. This temporary status has been used to protect nationals from strife-ridden countries since its inception in 1990. Other Countries currently extended TPS protection by the U.S. are: El Salvadore, Honduras, Nicaragua, Guinea, Nepal, Somalia, Sudan, South Sudan, Sierra Leone, Liberia, Haiti, and Yemen.
The TPS program protects eligible citizens from these countries from forced return to the country during the period designated by DHS. The status given to TPS recipients is simply that of “lawful” status. They are not lawful permanent residents “LPRs”, “Green Card” holders. Their status is temporary for the authorized period, and applicants must first meet the continuous presence requirements, showing that they were physically present in the U.S. prior to the initiation of the designation.
Applicants must also pass a background check, similar to the good moral character requirements found in most other applications, with ineligibility for those found to have a Felony, or two or more misdemeanor convictions. Other grounds of inadmissibility apply, and an applicant found inadmissible must, if eligible file a separate waiver application to waive the ground of inadmissibility.
The Obama administration has announced that most non-immigrant waivers will be granted for a 5 year period. Currently, waivers may be granted for either 1 or 5 years, but first time grants are normally for 1 year. The 1 year grant is a problem for practitioners because of the lengthy adjudication period involved with the waiver applications. Adjudications of the waiver applications by the Admissibility Review Office (ARO) have been taking 8 to 10 months. So clients need to re-file the application soon after receipt of the approval to avoid a lapse in admissibility.
CPB will begin the change in waiver approval in January, 2017. The listed exception to the 5 year grant policy is for those applications filed by “Crew members”, who will be limited to 2 years.
An additional benefit to the change will be a reduction in the volume of adjudications and presumably a speedier response time.
By the way, there is no one, in all of humanity (who hasn’t committed a serious crime) viewed lower than a crew member, by Immigration law. We’ll address that one of these days.
BASIS FOR INADMISSIBILITY
Because there is no statute of limitations, detrimental reliance, unclean hands , or other black letter Criminal law principals applied to U.S. Immigration law. A person who has committed a criminal conviction that is a basis of inadmissibility to the U.S. is inadmissible regardless of when it was committed or how many times they have since entered the U.S.. Our office has seen numerous cases involving clients with relatively minor offenses committed twenty to thirty years prior to their stop at a U.S. port of entry.
NO STATUTE OF LIMITATIONS
U.S. Immigration law is Administrative law, not Criminal law. Many of the legal principals that protect the rights of criminal defendants don’t apply to Immigration law. There is no statute of limitations for instance, precluding the prosecution of an offense after a substantial lapse in time. The one constitutional protection most often available to visa violators is for due process violations under the 5th amendment, and to a lesser extent the 4th amendment’s protection against undo searches and seizures. (Stops / arrests made by ICE and Customs officers are legal unless they are “Egregious” in nature)
BCBP uses several databases to determine a visitors admissibility. Most often an inspector checks the Treasury Enforcement Communications System (TECS) for any recent posts such as warrants , lookouts, or other reports by a law enforcement agency. If there is no recent activity for the visitor, inspectors usually look no further into the visitors background. But if a more extensive check of TECS is conducted, a more complete history of arrests and convictions may be revealed.
For those visitors found inadmissible due to a criminal history, they are usually refused entry and referred for a hearing before an immigration Judge, and told that they may file an application for a waiver of inadmissibility. If the criminal record is historic, the visitor is likely to receive a waiver.
JUNE 23, 2016
Today, the Supreme Court let stand the 5th Circuit Appeals Court’s Stay of President Obama’s Executive Actions, DACA II and DAPA. So, those programs will not be implemented while the litigation in Federal Court continues. The Supreme Court Justices voted 4 in favor of the Stay and 4 opposed, with no 9th vote due to the death of Judge Antonin Scalia. The tie leaves the 5th Circuit decision unchanged. The Court avoided inserting itself into the political skirmish that has followed the Obama Immigration policy by issuing a compact Decision:
“The judgment is affirmed by an equally divided Court.”
The House has submitted a bill for consideration called the Visa Integrity and Security Act of 2016 (VISA). Several proposed changes stand out.
1, all visa petitions will require a complete background check of the Petitioner, as well as the Beneficiaries of the application. Currently, a full background check is conducted only on the Beneficiaries.
2, a “Security Advisory Opinion” would be required for all visa applicants from countries currently associated with Islamic extremism, e.g., Iran, Iraq, Libya, Somalia, Syria, Sudan, Yemen.
3, a person’s Social Media information will be reviewed as part of the background checks.
4, All visa applicants abroad will be required to have an in-person interview with a consular official.
5, DNA testing will be required for all visa applications based solely on blood relations, i.e., sibling petitions or Parent-child preference petitions. Currently DNA testing is done only where the records of birth and family heritage are insufficient or from a country lacking in reliable record-keeping.
U.S. Immigration and Customs Enforcement (ICE) set up a fake university in New Jersey called the Northern New Jersey Univ. (NNJU) to catch people involved in fraudulent visa trafficking. The operation took slightly less than 3 years. In that time, the operation ensnared 21 individuals who are now charged with conspiracy to commit visa fraud and related violations. It also resulted in more than one thousand students receiving fraudulent masters degrees and specialty work visas.
H VISA TERMINATED
What then should be the treatment given to the students by ICE (and U.S. CIS which grants visas) who were enrolled in the school, obtained degrees, and have been hired in their field?
We know that students are being contacted by ICE and will be issued Notices to Appear before an Immigration Judge. We also know the former students are being notified by prospective employers that the job offers are invalid and their H visas terminated.
Should, however, the students be authorized to file for “U” visas, based on being a victim of a criminal conspiracy? Or, should they not be treated as innocent victims but instead seen as having partaken in an obviously fraudulent scheme to obtain fake degrees and work visas?
Should the students be authorized to re-apply in a valid degree program with an authorized school and have their student status “re-instated”? Under the INA, students are limited to applying for reinstatement by having no more than a single semester lapse in student status, due to circumstances beyond their control.
A quick review of Donald Trump’s plan for immigration involves proposals for enforcement beyond simply having Mexico pay for a new wall.
For instance, his plan would make the use of “E-verify” nationwide. Presently, E-verify is available for employers to use voluntarily to confirm the identity and the employment eligibility of workers. Because unauthorized employment can result in significant fines to employers, E-verify is a valuable resource to employers in industries that employ foreign nationals on a large scale. E-Verify is an Internet-based system that compares information from an employee’s Form I-9, Employment Eligibility Verification, to data from U.S. Department of Homeland Security and Social Security Administration records to confirm employment eligibility.
In terms of general enforcement efforts, Trump calls for the return of all criminal aliens to their home countries, and sanctions against countries who refuse to accept them. Aliens apprehended crossing the border must be detained until they are sent home, no more catch-and-release. A tracking system should be developed for visitor visas, and those who overstay should face a criminal charge.
Trump would propose to end birthright citizenship and would end Federal funding of sanctuary cities. He would involve ICE officials in the crackdown of gangs to deport alien members of criminal gangs, such as MS-13.
As to employment of aliens and the effects on the economy, Trump proposes limiting the number of unskilled workers who compete with minorities for jobs in this country. Instead, he would limit the issuance of J-1 visas and develop a jobs program for inner city youth. As for workers in specialty occupations, those with advance degrees, he wants a higher prevailing wage to discourage large employers, such as Disney, from the preferential hiring of foreign workers as a cost-saving tool.
As for public benefit eligibility, Trump proposes to require that all visa applicants be able to certify that they will not require taxpayer assistance during their visit. He would cut back on funding the process for admitting refugees and asylum seekers, and use the funds to benefit inner city youth in high-crime neighborhoods.
Many of Trumps proposals would require an act of Congress, not just an Executive Order. In terms of the politics, it would probably be considered a conservative proposal that contains ideas attractive to progressives who should favor increasing the employment opportunities of youth and minorities in inner cities.
H -VISA STATUS
I don’t think the average GOP voter has been able to grasp the GOP candidates’ discussion of the pros / cons of using foreign workers in “H” visa status. That’s because there are two categories of H workers and their skills and educational requirements are completely different. Ted Cruz and Marco Rubio criticized Donald Trump for having workers for 5 months at the Trump resort in Mara Lago, Florida. Those are temporary seasonal workers in jobs that require no high school / college degree, the H-2B visa. To petition for these workers an employer must satisfy the Department of Labor and the U.S. CIS that they need to fill the position due to a seasonal, peak load, or one-time occurrence. Trump spoke about “the season” in Palm Beach from November to March where there is a need for hospitality workers, and the difficulty of finding U.S. workers willing to accept temporary or part-time positions.
The other category of “H” visa that was referenced in the debate is for workers in specialized fields who have advanced degrees, 4 year college degrees or higher, the H-1B. Trump spoke about those foreign students graduating from top graduate schools like Harvard, and Wharton, as those high skilled workers that he thinks should have a chance to remain in the U.S. and work for U.S. companies. Disney World in Florida was criticized recently when they were found to have required their U.S. citizen employees to train their foreign replacements who had H-1B visas. Although the U.S. employer must pay the Dept of Labor’s “prevailing wage” to the H-1B worker, the overall cost for these skilled workers is less than the cost of hiring U.S. citizens with comparable skills.
OFFICIAL TRUMP WEBSITE
Donald Trump has issued his Immigration Plan in an on-line post: