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Why people are speculating that Melania Trump was once an “illegal” immigrant

The short answer: because immigration law is really hard to understand, and even harder to comply with.

Melania Trump kissing Donald Trump. Alex Wong/Getty

Was Melania Trump once an “illegal immigrant”?

The potential first lady is definitely an immigrant — she came from Slovenia in the mid-1990s and settled in New York to work as a model. But lately, reporters (led by Frank Wilkinson at Bloomberg View) have been digging into the details. And they’re raising the possibility that Melania Trump may have violated the terms of her visa when she first came to the United States.

That might be true; it might not. It’s a juicy political story because of Donald Trump’s well-known stances on immigration. But what’s really at stake here is also a lot bigger than any accusations of Trump’s “hypocrisy.”

The gleeful schadenfreude around this story threatens to drown out the much more important point: US immigration laws are extremely difficult to understand and comply with perfectly. This is a serious problem that people less famous than Melania Trump struggle with all the time. It’s also the reason it’s simply impossible for the average person to know, for sure, when someone is “illegal.”

The Melania Trump controversy, explained

We don’t actually know what kind of visa Melania Trump was on when she came to the United States 20 years ago (the campaign hasn’t said, exactly). But based on her biography and statements, there are two possibilities. And one of those possibilities is generating all the controversy.

If Melania originally came to the US to work as a model, she probably should have been on an H-1B work visa for temporary high-skilled workers. (She could also have been on an O visa, for workers with “extraordinary” ability, but since the H-1B literally has a category for fashion models, that’s the best bet.)

An ex-agent, Pablo Zampolli, has told the Associated Press that he personally secured an H-1B for her. If that’s what in fact happened, there’s no story here.

The problem is that some of Melania’s past statements make it seem like that wasn’t what she did.

On a couple of occasions, Melania has told reporters that after coming to the United States, she had to return to Slovenia “every few months” to get her visa renewed. That’s not something you have to do if you’re on a work visa. It is something you have to do if you’re on a six-month tourist visa, like the B-1 visa for “temporary business visitors.”

But if Melania was on a tourist visa, then, as a rule, she shouldn’t have been able to work for hire in the United States. Yet people who were active in the modeling industry at the time say it was common for Eastern European models to come here on B-1 tourist visas and work anyway.

Donald and Melania Trump in 1998.
In 1998 — either two or three years after she arrived in the US (depending on whom you believe).
Ron Galella/WireImage

So that’s what reporters are raising questions about: They’re asking whether Melania came to the US on a B-1 tourist visa in 1995, violated the terms of her visa by working as a model for hire, and returned to Slovenia every few months to get the visa renewed.

If that is what she did — and if she knew her visa didn’t allow her to work — then she committed fraud every time she got the visa renewed in Slovenia. That’s the issue at the heart of this controversy.

Reporters have also raised questions about chronology here: Melania has said publicly that she came to the United States in 1996, whereas her biography and a recently surfaced nude photo shoot indicate that she actually came in 1995. That chronology isn’t hugely important in itself, though it might be more evidence that Melania is trying to cover up something about the circumstances of her arrival in the US.

Not only is visa fraud a federal offense, but a fraudulent visa claim can undermine someone’s eventual eligibility for a green card — and even for citizenship. So if Melania is guilty of visa fraud, the US government could, if it really wanted to, try to strip her citizenship from her, by arguing she was never really a citizen at all.

Restrictions on work are a huge problem for many immigrants

Melania Trump issued a statement Wednesday morning asserting, “I have at all times been in full compliance with the immigration laws of this country. Period.”

Her critics were unappeased. Some reporters want her to specify exactly what sort of visa she was on, so the public can be sure it was one that allowed her to work legally.

But here’s the thing: It’s entirely possible that Melania Trump really didn’t commit visa fraud. It’s possible that she really was on a work visa and was misremembering the frequency with which she had to fly back to Slovenia (or exaggerating it to make a point), or mistook the interviews she had to have with immigration officials every time she flew home for a visa renewal.

It’s also possible that she was on a B-1 visa for “temporary business visitors” but didn’t realize she wasn’t legally allowed to do modeling work on it. After all, it’s not exactly intuitive that a “business visitor” visa doesn’t allow its recipient to work. (The US Citizenship and Immigration Services website explains that activities under a business visitor visa “must be directly connected with and part of your work abroad.”)

A Politico article on the scandal, citing a labor standards advocacy group, says, “It was a common practice in the 1990s in New York for less scrupulous agencies to bring in foreign models to work illegally on temporary business and tourist visas.” If Melania Trump was on the same sort of visa as everyone else she worked with, it’s totally possible that she was simply being misled as to its legality.

Then again, it is also entirely possible that Melania Trump committed visa fraud during her first several months in the US. It is not unheard of for people to come to the United States on non-work visas and then work while they’re here anyway.

In fact, the strict delineation of “work” and “non-work” visas is a big problem for many people. Immigrant students can’t work while they’re on student visas, no matter how much they might need the extra money. Many immigrant spouses, meanwhile, are prevented from working in the US; one member of a couple may be here as a work visa holder but the other is here as a “dependent.” That causes unnecessary economic difficulty and can also make immigrants feel isolated and useless.

The scrutiny that Melania is facing, too, is incredibly common among immigrants and visa holders in the United States. They’re used to having every detail of their pasts raked over — and having any inconsistency or mistake held up as evidence of fraud. Usually, it’s at the hands of the federal government.

I’ve seen Immigration and Customs Enforcement prosecutors accuse asylum seekers of making up their entire stories, simply because they said at one point that something happened in 1993 and at another point that it happened in 1994. And most immigrants have even fewer resources to make their case than the Trumps do.

The problem isn’t Melania Trump — it’s a system that even Melania Trump can’t handle

Ostensibly, the reason that Melania Trump’s immigration status 20 years ago is coming under such scrutiny today is that could be a political liability for her husband. He says illegal immigrants should all be deported — but his own wife perhaps once worked illegally in the United States.

Yet Trump’s supporters tend to care less about an immigrant’s legal status than about whether she fits in with US culture and values. If they liked Melania before, knowing she was an immigrant, it’s not obvious that they’ll start freaking out about her now. Mocking Melania Trump’s immigration history is a lot like calling her husband “Donald Drumpf” — it seems like a devastating takedown, but it’s really not.

What’s more interesting is the reaction of Trump’s critics. Scrutinizing Melania Trump’s records for evidence of her “illegality” actually reinforces one of the core assumptions that Trump and his supporters have about the immigration system: that it’s perfectly clear who’s “legal” and who’s not, and that if you’re violating immigration law it must be out of malice. Neither of those things is true.

Immigration law is incredibly hard to understand and even harder to comply with. That’s a very good reason not to pass laws that require government agents to be able to determine at a glance whether someone is “legal” or not — or deprive immigrants of a judicial hearing to sort out their status. In other words, it’s a good reason not to try to round up and deport all unauthorized immigrants in the US within a couple of years, as Trump has promised to do.

UPDATE: This article has been updated to include agent Pablo Zampolli’s claim that he got Melania Trump an H-1B visa.