Statutes of Limitations & Mrs. Trump

Politico published a story today on Mrs. Trump’s immigration history: “Gaps in Melania Trump’s Immigration Story Raise Questions.” The issue stems from Mrs. Trump’s status if/when she worked in the US during 1995 & 1996. It seems that she may have been working without authorization, a violation of immigration law (in Canada and the US), which would constitute “visa fraud” (in Canada, “misrepresentation”) and lead to an investigation. I am guessing that Mr. Trump is consulting his lawyers to see if Mrs. Trump’s US citizenship is at risk. It may be.

In her own words, Mrs. Trump described how she handled her immigration matters from the 90s:

“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.”

It seems during that time she was going I do not practice US immigration law so I am simply going to quote the article on the potential violation:

Trump’s tale of returning to Europe for periodic visa renewals is inconsistent with her holding an H-1B visa at all times she was living in New York — even if it was the lesser-known H-1B visa specifically designed for models — said multiple immigration attorneys and experts. An H-1B visa can be valid for three years and can be extended up to six years — sometimes longer — and would not require renewals in Europe every few months. If, as she has said, Trump came to New York in 1996 and obtained a green card in 2001, she likely would not have had to return to Europe even once to renew an H-1B.

Instead, Trump’s description of her periodic renewals in Europe are more consistent with someone traveling on a B-1 Temporary Business Visitor or B-2 Tourist Visa, which typically last only up to six months and do not permit employment.

It seems that Mrs. Trump may have working without authorization during 1995 or she was on the special visa for models – some intrepid reporters are likely hunting down those documents. It is also entirely possible that she believed that she did not realize that she was violating immigration laws. The question now becomes: what are the possible legal consequences if Mrs. Trump committed “visa fraud” ~20 years ago?

Statutes of Limitations and Immigration Law

When I first read about Mrs. Trump, I was reminded of a client from ~10 years ago. He is a successful movie director in California and he needed to enter Canada to shoot a film. The HR Manager in his company applied for a Work Permit and it was refused due to an incident in his immigration file from +20 years earlier. When I spoke to him, his first question was: “shouldn’t there be a Statute of Limitations to something that happened more than 20 years ag0?”

And the simple answer to his question: No. There are no Statutes of Limitations under Canadian immigration law that would apply to his case. Government officials can dig into the past of an applicant, or current Canadian citizen, including the distant past for any activities that may be relevant. Within the context of an immigration investigation, there are no temporal barriers.

Will Mrs. Trump be Stripped of her American Citizenship?

I cannot answer this question. In Canada, working without authorization is a serious offence and IRCC takes these cases very seriously. Recall the case a couple years ago with the 2 international students who worked off-campus at minimum wage jobs and faced deportation. Further, it is important to remember the broad definition of misrepresentation under the Immigration and Refugee Protection Act of Canada:

40(1) A permanent resident or a foreign national is inadmissible for misrepresentation

(a) for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of this Act;

[…]

Therefore, based on the facts above, even if Mrs. Trump was completely ignorant of the law, she would still be inadmissible, under Canadian law for misrepresentation, per s.40 of IRPA.

The question then becomes whether her citizenship would protect her. As noted above, section 40 only applies to Permanent Residents and foreign national. Under subsections 10(1) and 10.1(1) of the Citizenship Act, the government can revoke citizenship of a naturalized Canadian who is found to have committed:

• false representation;
• fraud; or
• knowingly concealing material circumstances.

The key difference in this test is the intent component. Unlike section 40 of IRPA, the Citizenship Act does not cover indirect misrepresentation. In this hypothetical situation, applying Canadian immigration law to Mrs. Trump’s situation, it seems that her citizenship would not be at risk.

This example is one of the reasons I encourage my clients who are Permanent Residents to become Citizens. It offers one extra layer of protection.

Canadian Immigration Law versus US Immigration Law

I hope that I have sufficiently emphasized that the above analysis is based wholly on Canadian immigration law. I do not practice US immigration law and I refer all questions regarding US immigration law to attorneys who practice in that area.