Melania Trump’s EB-1 “Einstein Visa” Faces Misplaced Scrutiny

March 13th, 2018 by SRW Lawyers

Since Donald Trump first announced his bid for the presidency with a speech focused on immigration reform, now-First Lady Melania Trump’s own immigration history has come under fire. Most recently, news stories about her EB-1 green card have prompted additional speculation and scrutiny.

Although the First Lady has refrained from releasing her full immigration records, the statements she has made are sufficient to piece together a timeline of her immigration process. Specifically, she first came to the United States in August 1996 on a B-1/B-2 visitor visa, which would have allowed her to network and attend business meetings, but not perform paid work. Subsequently, in October 1996, she was approved for the first of several H-1B visas she would receive, which authorized her to work as a fashion model in the United States. Thereafter, in 2000, she sponsored herself for an employment-based green card under the EB-1 category for extraordinary ability, which she received in 2001. After meeting the five-year residency requirement for naturalization, Melania would later file for and become a U.S. citizen in 2006. While she and Donald Trump had married the previous year, Melania’s eligibility for U.S. citizenship clearly stemmed from her employment-based green card, not their marriage. Although Melania has similarly avoided explaining how her parents received green cards by 2007, citing privacy concerns, it is likely that she sponsored them to obtain green cards as immediate relatives of a U.S. citizen. As parents of a U.S. citizen over the age of 21, they would have been eligible.

To better understand the First Lady’s U.S. immigration history, a brief explanation of the requirements and benefits of the H-1B and EB-1 categories is provided below.

H-1B visas are non-immigrant (temporary) visas that provide work authorization in the U.S., but not a path to permanent residency or U.S. citizenship. To be eligible for an H-1B, fashion models at the time Trump applied had to be “of distinguished merit and ability.” Prior to 1996, Trump had signed with a Milan modelling agency, worked in both Milan and Paris, and won second place in a Slovenian magazine contest that awarded the top three finishers with international modelling contracts—work that undoubtedly qualified her for the H-1Bs she received.

While there are a variety of options for obtaining temporary work authorization in the U.S., there are only five employment-based permanent visa preference categories that require very specific criteria to be met for approval. As has been well documented this month, Melania Trump was approved for an EB-1 visa as an “individual with extraordinary ability,” commonly referred to as an “Einstein visa,” which is the top preference category available. This nickname has led to a popular misconception that this type of EB-1 is reserved for academics, but in fact, “outstanding professors and researchers” is a separate subcategory. The term “Einstein visa” simply refers to the visa’s general selectivity – individuals with extraordinary ability in the sciences, arts, education, business or athletics all may be considered for the EB-1 preference category.

Furthermore, there are two main ways to qualify for an EB-1 as an individual with extraordinary ability. The first is a one-time achievement of the same caliber as a Pulitzer, Oscar, or Olympic Medal. The second way—and the way in which Trump would have qualified—is to provide documentation that one meets at least three of the following ten requirements:

• Evidence of receipt of lesser nationally or internationally recognized prizes or awards for excellence
• Evidence of membership in associations in the field which demand outstanding achievement of their members
• Evidence of published material about the individual in professional or major trade publications or other major media
• Evidence the individual has been asked to judge the work of others, either individually or on a panel
• Evidence of original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field
• Evidence of authorship of scholarly articles in professional or major trade publications or other major media
• Evidence that the individuals work has been displayed at artistic exhibitions or showcases
• Evidence of the individuals performance of a leading or critical role in distinguished organizations
• Evidence that the individual command a high salary or other significantly high remuneration in relation to others in the field
• Evidence of commercial successes in the performing arts

Although it has not been made public which three requirements Trump specifically met, her accomplishments at the time were consistent with several of the requirements for an EB-1 visa.

• First, she had received a great deal of coverage in major media, including photoshoots for Sports Illustrated and British GQ and interviews with Howard Stern and the New York Times. Although she had received widespread coverage in celebrity magazines due to her relationship with Donald Trump, the coverage must have related to her modelling work to help qualify her for a visa.

• Second, although her modelling salary has not been made public, her appearances in well-known publications suggest that it may have been high enough relative to others in the field to qualify.

• Third, Trump could have used documentation of the number of copies of her aforementioned Sports Illustrated and British GQ features that were sold, as well as her appearance on a Times Square billboard in an advertisement for Camel cigarettes, to fulfill the requirement of “commercial successes in the performing arts.”

• Finally, one of the biggest components of a successful EB-1 Application are reference letters from individuals in the field who themselves are considered to be individuals of extraordinary ability. Given the prestige of some of Trump’s modeling engagements to date and her high-profile celebrity relationship with Donald Trump, she likely obtained strong reference letters from heavy hitters in the field.

Regardless of whichever criteria Trump may or may not have endeavored to satisfy, U.S. immigration officials would have exercised discretion in determining whether or not she satisfied the requirements for an EB-1. Obviously, they felt that she did.

As an additional point, the EB-1 immigrant preference category is commonly confused with the O-1 nonimmigrant visa for “individuals with extraordinary ability or achievement.” Despite their similar titles, the two visas have different requirements and entitle their recipients to different benefits. Most notably, the O-1 visa is a temporary visa that does not provide a path to citizenship or the ability to sponsor family members for permanent visas. Spouses and children of O-1 recipients may derive O-3 visas through their family members, but those are also temporary.

Due to its temporary nature, the requirements and threshold for obtaining an O-1 are lower than the requirements for an EB-1. Generally speaking, to be approved for an O-1, a foreign national must demonstrate “extraordinary ability” and be “renowned, leading, or well-known” in their field. Additionally, because the O-1 visa is intended to allow these individuals to work temporarily in the U.S., a foreign national must have secured an employment opportunity in their field and must be sponsored by a U.S. petitioner. In contrast, EB-1 applicants may self-petition (sponsor themselves) and do not need to secure an employment offer in the U.S. in order to apply.

Applying for an employment-based visa that requires an individual to provide documentation of an extraordinary ability can be an extremely complex process to navigate. If you have questions or concerns regarding your potential eligibility or application for an O-1 or EB-1, or any other immigrant or nonimmigrant process, please reach out to our team for a consultation and guidance. It would be our pleasure to assist you.

Photo Credit: The Epoch Times First Lady Melania Trump during Polish President visit via photopin (license)

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