Donald Trump, it is worth stating, is married to an immigrant. Considering Trump has made immigration a cornerstone of his campaign, promising to build a wall at the U.S.-Mexico border and arguing that visas take away American jobs, it is a nearly impossible to ignore the irony.  These last months leading up to the November 2016 election have been full of nasty accusations slung by both sides.  While the right points out Hillary’s deleted emails, the left is busy pushing for the release of Donald’s tax returns.  BUT in the eyes of this attorney, the most interesting controversy so far has been that of Melania Trump’s immigration status, and the Trump campaign’s unwillingness to release Melania’s immigration records.

 

Should he be elected, Melania will become the first foreign-born First Lady since Louisa Adams.  Trump’s mother was a Scottish immigrant, and his first wife Ivana was born in Czechoslovakia.  As Lauren Collins so eloquently put it in the May 2016 issue of The Newyorker, “if he’s as concerned as he says he is by all the ‘people that are from all over and they’re killers and rapists and they’re coming into this country,’ he might consider building a wall around his pants.”

 

Melania Trump has said she came to the United States on a legal visa in 1996, got a green card in 2001 and then became a U.S. citizen in 2006.  “I came here for my career,” she told Harper’s Bazaar in January. “I did so well. I moved here. It never crossed my mind to stay here without papers. That is just the person you are. You follow the rules. You follow the law. Every few months you need to fly back to Europe and stamp your visa. After a few visas, I applied for a green card and got it in 2001. After the green card, I applied for citizenship. And it was a long process.”  Then, in February, she told MSNBC: “I follow a law the way it’s supposed to be. I never thought to stay here without papers. I had visa. I travel every few months back to the country, to Slovenia, to stamp the visa. I came back. I applied for the green card. I applied for the citizenship later on after many years of green card. So I went by system. I went by the law, and you should do that.”

On September 14th 2016, Melania tweeted out a letter from an Immigration Attorney in New York City in an effort to bring to rest the swirling rumors that she was once either an undocumented immigrant and/or was working in the U.S. unlawfully while on a tourist visa.  The letter stated that she did originally enter as a tourist on a B1/B2 visa, but that shortly thereafter she was granted an H-1B visa, which would allow Mrs. Trump to work as a model in the U.S.  Furthermore, the letter goes on to state that she ultimately achieved U.S. residency based on a self-sponsored process as a model of “extraordinary ability,” and not through marriage as many had previously assumed.  But questions still remain… “If she obtained her green card through the ‘Extraordinary Ability’ category what was the basis of her claim?” asks David Leopold, an immigration attorney who once served as president of the American Immigration Lawyers Association and who supports Democratic nominee Hillary Clinton. “The law requires a showing of sustained national or international acclaim and that her achievements have been recognized in her field. ‘Extraordinary ability’ is defined as ‘a level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the field of endeavor’.”  To meet that qualification, Trump would have had to offer “evidence that the alien has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise.” That can be something like a Nobel Prize, for example. Otherwise, there’s a list of things from which Trump would have needed to demonstrate three examples. The list is not insignificant, requiring membership in organizations based on merit, leadership positions at distinguished organizations or publication “in major trade publications or other major media.” Which of those boxes Trump checked isn’t clear.

Nevertheless, Donald Trump has flip-flopped on his stance on H-1B visas. In a March Republican debate, Trump said that he was familiar with how unfair the program can be to American works because he’s used it himself. “I know the H-1B very well. And it’s something that I, frankly, use, and I shouldn’t be allowed to use it. We shouldn’t have it. Very, very bad for workers,” he said.  So even Melania’s proper use of the H-1B program would stand in contrast to her husband’s position now.

There is no doubt that Melania is a proud citizen of the U.S. today. But inconsistencies in her accounts of arriving in this country underscore how complicated and confusing our immigration system can be. How ironic that there is now widespread speculation that Melania Trump herself was once an undocumented worker.  Is it hypocritical for the Trump campaign not to answer these questions, given that Trump has made cracking down on illegal immigration the centerpiece of his campaign? That’s a question for the voters to answer in November.