New York Times
By Ron Nixon
August 16, 2016
On the campaign trail, Donald J. Trump has excoriated the nation’s visa program for high-skilled workers as a job killer, pledging to end it with “no exceptions.” But his own companies have used it to bring in hundreds of foreign workers, including fashion models for his modeling agency who need exhibit no special skills.
The little-known corner of the H-1B visa program for models has been controversial for years, questioned not only by Americans facing competition from foreign models but by technology companies whose engineering and scientific visas may instead go to men or women with no more specialized skills than their cheekbones.
Mr. Trump, the Republican nominee for president, has said the H-1B program allows companies to import foreign workers to replace American workers at lower pay.
“I will end forever the use of the H-1B as a cheap labor program, and institute an absolute requirement to hire American workers first for every visa and immigration program. No exceptions,” Mr. Trump said in March.
But his companies have asked the federal government for permission to bring in more than 1,000 foreign workers on guest visas, according to Labor Department data. More than 200 of them were fashion models for Trump Model Management who qualify by possessing only “distinguished merit and ability,” unlike other H-1B applicants who must possess “highly specialized knowledge.”
The issue has been further muddied by questions about his wife Melania’s immigration status when she arrived for a nude modeling session in 1995, a year before she says she was legally able to work the United States. Ms. Trump has said she never violated the nation’s immigration laws. She also said she might not have been paid for the nude modeling shoot, but her legal pathway from tiny Slovenia to the runways of New York remains murky.
Such questions have reinvigorated opponents of the H-1B visas for fashion models, shining a fresh light on the people who shaped it and used it — including Mr. Trump; Senator Edward M. Kennedy, who sponsored legislation to add fashion models to the H-1B program; and the disgraced former New York congressman Anthony Weiner, who tried to reshape it. Mr. Weiner’s wife, Huma Abedin, is a senior aide to Hillary Clinton.
The Trump campaign did not respond to requests for comment.
Legal authorization for a model is easier to attain than it is for most professionals. United States Citizenship and Immigration Services declined to say how government screeners evaluated applicants who were models on their “distinguished merit and ability.” Angelo A. Paparelli, an immigration lawyer in Los Angeles, said, “As the Supreme Court said: It’s like porn. You know it when you see it.”
Such standards raise concerns about exploitation. A Jamaican model sued Mr. Trump’s modeling agency in 2014, saying she was paid a fraction of what she was promised when she was brought to the United States on an H-1B visa. Those concerns fit with broader worries that the visa program is being used to import cheap labor at the expense of American workers.
Since 2001, American companies have filed nearly 5,000 applications to hire fashion models from abroad, according to Labor Department data. Last year, 67 applications were filed for 76 models (employers can ask for more than one worker on an application). The high-water mark for fashion models was 2004, when there were more than 800 requests. Since then, the numbers have declined to fewer than a hundred a year on average, the data shows.
Once the Labor Department approves an application, it is forwarded to the Citizenship and Immigration Services, which decides whether to approve the H-1B classification for the worker. The State Department then issues a visa.
The immigration agency declined to say how many visas it had approved for fashion models.
The H-1B program for fashion models has long been a source of controversy. The suit against Mr. Trump’s modeling management company in 2014 was filed by Alexis Palmer of Jamaica, who said that instead of being paid the $75,000 a year she had been promised, she received less than $4,000 over four years.
The company found work for her just 21 days during the years she worked for Mr. Trump’s modeling agency, Ms. Palmer said in her lawsuit.
Alan Garten, a lawyer for Mr. Trump’s agency, said Trump Modeling Management helped Ms. Palmer with the immigration process and fronted her the money to pay for it against future earnings.
“But she was never an employee, she was self-employed,” he said. “She hired us to be her manager. The way she was handled is standard across the fashion industry.”
Judge Analisa Torres of Federal District Court dismissed the case this year, saying Ms. Palmer should have first exhausted the administrative procedures at the Labor Department or raised it in a state court.
“This is not the end of this case by any means,” said Naresh Gehi, an immigration lawyer in New York representing Ms. Palmer, who added that the case was pending at the Labor Department.
A broader controversy has been stoked by the technology sector. Businesses clamor for the H-1Bs, which are intended to help companies fill positions for high-skilled jobs when they cannot find Americans with the necessary qualifications. Trade groups for engineers and programmers complain that including models in the visa program eats into the supply of skilled scientists, engineers and other professionals they need. The visas are capped by Congress at 65,000 per year.
Last year, it took just five days for the number of H-1B applicants to reach that limit, according to the Department of Homeland Security. The visas are initially approved for three years and can be extended for another three.
“It is odd that fashion models are grouped in with visas for these high-skilled workers,” said Neil G. Ruiz, director for the Center on Law, Economics and Finance at George Washington University Law School. “And it makes you scratch your head that it’s the only H-1B category that does not require a bachelor’s degree.”
Mr. Ruiz said that while the number of visas for models was small — fewer than 1 percent — it still affected the overall program because every visa granted to a model means one less goes to other workers in the H-1B categories.
Fashion models, which were overlooked in the original 1990 immigration reform laws that created the worker category in the H-1B visa program, were added a year later by Mr. Kennedy, a liberal stalwart and pro-union Democrat.
Other categories were created that allowed the universities and sports teams to bring in workers with “extraordinary ability” in the areas of science, the arts, education and athletics.
In 2006, Mr. Weiner tried to move models into the category of actors and athletes but he was criticized after it was disclosed that a lawyer representing fashion models had sponsored a fund-raiser that added $10,000 for his failed campaign in 2009 to be mayor of New York City.
In an interview, Mr. Weiner said he sought the change after the being approached by New York publishing and modeling industry representatives about the effect of having models compete for visas in same category as tech workers.
“They had to jump through all these hoops for people who come in for a day or two at a time to do a photo shoot and then want to go back home,” he said. “Some people just got tired and said, ‘We’ll just go to Europe and do the shoots.’ It was creating a burden for the industry here.”
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