What is the ‘Einstein visa’ controversy and why the ‘math ain’t mathing’ in Melania Trump’s case

“Let me tell you how you receive an Einstein visa,” she said, “you’re supposed to have some sort of significant achievement, like being awarded a Nobel Peace Prize or a Pulitzer, being an Olympic medallist, or having other sustained extraordinary abilities and success in sciences, arts, education, business, or athletics. Last time I checked, the first lady had none of those accolades under her belt. It doesn’t take an Einstein to see that the math ain’t mathin’ here.”

Melania Trump, then known as Melania Knauss, was a Slovenian model living in New York when she applied for the EB-1 in 2000. The visa was approved in 2001, and she became a US citizen in 2006. That citizenship later allowed her to sponsor her parents for green cards.

Her case has drawn particular attention because her husband, President Donald Trump, seeks to end what he calls ‘chain migration’ – the very policy that enabled his wife to sponsor her family. His proposed merit-based system would have blocked his in-laws’ sponsorships.

During the hearing, Crockett asked, “why aren’t we talking about integrity when it comes to the president’s family’s visas?”

What is an Einstein visa?

The EB-1 is a US employment-based green card for people with ‘extraordinary ability’ in fields like science, arts, education, business, or athletics. Applicants must demonstrate ‘sustained national or international acclaim’ through a major award — such as a Nobel Prize — or meet at least three of ten listed criteria, according to the US Citizenship and Immigration Services (USCIS).

Success grants a green card, offering permanent residency and a path to citizenship.

Yet, as Susan McFadden, a specialist visa lawyer at Gudeon and McFadden in London, told the BBC, “you do not have to be a Nobel prize winner to get the extraordinary ability visa. I’ve gotten EB-1 visas for people you’ve never heard of and never will.”

The key, she explained, lies in crafting a narrative that positions the applicant as peerless within a narrowly defined field. Trying to prove your client is an exceptional entrepreneur has them compete with Richard Branson, McFadden said. Proving they are outstanding within alternative asset commercial finance management. Thats not so tough.

Several recipients of the EB-1 visa have had niche or unconventional talents. Indian-origin investment banker Mangesh Ghogre received the visa for his skill in constructing crossword puzzles, which have been published in the New York Times, the Washington Post, and the Wall Street Journal.

Stunt coordinator Glenn Boswell was approved within a week after submitting a 439-page petition detailing credits in films like The Matrix, The Hobbit, and Unbroken.

Other recipients include Cirque du Soleil acrobat Daniel Riffner, who applied in 2009 with a portfolio of medals and photographs of his high-wire acts, and Syrian clarinettist Kinan Azmeh, a member of Yo-Yo Ma’s Silk Road Ensemble, who received his green card in 2012.

Criticism

Each year, roughly 40,000 EB-1 visas are allocated within the broader employment-based immigration quota, but demand, particularly from countries like India and China, often creates backlogs. The application process is rigorous, requiring a Form I-140 petition backed by voluminous evidence.

Rita Sostrin, a Los Angeles-based immigration lawyer, told the New York Times, “recipients are supposed to be the best of the best, but meeting the criteria is no guarantee. An adjudication officer makes a judgment call.”

This subjectivity fuels criticism that the program can be gamed. In a viral 2023 blog post, San Francisco-based tech entrepreneur Debarghya Das outlined what he called the “ultimate guide to an EB-1A” visa, advising applicants to work with firms that amplify their achievements through niche trade publications.

“There are firms that work with you to understand the scope of your contributions and find outlets for you to publish them for niche trade magazines read by industry experts,” Das wrote, framing his advice as a lifeline for “talented Indians” caught in visa limbo.

Sostrin once distributed a fabricated résumé based on Albert Einstein’s early academic accomplishments at a legal conference. The consensus among immigration lawyers? Even Einstein might have struggled to qualify for an EB-1 before winning the Nobel Prize.

Sostrin and others have noted that the system tends to favour fields where success is easily documented in awards or media coverage, while disadvantaging others like entrepreneurship, where achievements may not be recognised through traditional benchmarks.

The program’s susceptibility to manipulation has drawn particular ire. Shera Béchard, a Canadian model and Playboy Playmate, secured an EB-1 in 2012, prompting questions about how modelling, a field rarely associated with Nobel-level acclaim, met the threshold. Melania Trump’s case invites similar scepticism. As a model in 2000, she was known more for her relationship with Donald Trump than for groundbreaking achievements.

The EB-1 visa embodies a paradox. It aims to attract global talent but often rewards those who can navigate its ambiguities. Its roughly 40,000 annual slots are a small fraction of the 140,000 employment-based green cards issued yearly, yet the program’s high profile, bolstered by its “Einstein” moniker, invites outsized scrutiny.

For every Kinan Azmeh or Glenn Boswell, whose contributions are demonstrable, there are cases that strain credulity, fuelling perceptions of favouritism or lax standards.