Elon Musk could have his United States citizenship revoked and be exposed to criminal prosecution if he lied to the government as part of the immigration process, according to legal experts.
Musk, who was born and raised in South Africa and later emigrated to Canada before eventually settling in the US and becoming a citizen, has spent more than $100 million to support Donald Trump and his nativist presidential campaign, and has personally demonized immigrants. A recent Bloomberg analysis found, for example, that Musk has posted around 1,300 times on X this year about immigration and voter fraud. Many of those posts promote the āgreat replacementā conspiracy theory, which falsely holds that Democrats seek to replace white voters with unauthorized immigrants whose votes they control, and depicts immigrants as dangerous lawbreakers.
Earlier this week, though, The Washington Post reported that Musk was himself an immigrant who had apparently broken the law. In the 1990s, he worked illegally in the United States, according to the Post, which cited āformer business associates, court records and company documents.ā
In 1995, according to the Post, Musk was admitted to graduate school at Stanford but didnāt enroll in classes, instead working on an online services startup that would eventually be known as Zip2. (Stanford did not reply to requests for comment.) In 1996, the Post reported, investors made a funding agreement contingent on Musk and his brother Kimbalāwho has stated that the brothers were āillegal immigrantsāāobtaining authorization to work in the US within 45 days. āTheir immigration status was not what it should be for them to be legally employed running a company in the US,ā Zip2 board member Derek Proudian told the Post.
Musk denies that he ever worked illegally in the US. (His lawyer, Alex Spiro, and a spokesperson for X, which he owns, did not reply to requests for comment.) He claims that in 1995, as a student, he was in the US on a J-1 visa, which then ātransitionedā to an H1-B visa. As the Post reported, though, in a 2005 email that was entered into evidence in a since-closed defamation lawsuit in California, he wrote that he had applied to Stanford because he otherwise had āno legal right to stay in the country.ā Musk then reportedly didnāt enroll at Stanford, instead working on the project that would become Zip2.
After months of campaigning, scandal, propaganda, and downright weirdness, it all comes down to this.
Someone present in the US on a student visa who didnāt enroll in courses would have had no right to work at the time and would have had to leave the country, according to experts WIRED consulted. (He did ultimately receive work authorization in 1997.)
Overstaying a student visa was, and to a much lesser extent still is, relatively common. Working without authorization and lying about it during the immigration process would be, however, a black-letter violation of US law carrying significant penalties, albeit one enforced fairly rarely, say experts.
Stephen Yale-Loehr, a professor at Cornell Law School and faculty director of its Immigration Law and Policy Program, says that itās not clear that if Musk worked in the US without authorization and attested he hadnāt, that would be considered important enough to denaturalize him. However, he says, āon purely legal grounds, this would justify revoking citizenship, because if he had told the truth, he would not have been eligible for an H1-B, a green card, or naturalization.ā
Other experts agree. Amanda Frost, who teaches immigration and citizenship law at the University of Virginia, could not speak to Muskās case specifically, but says that having worked without authorization can be a bar to obtaining a green card.
āIf a noncitizen violated the terms of a nonimmigrant visa, and then adjusted to immigrant (green card) status without admitting the violation, and then naturalized without admitting the violation, that person could be denaturalized on the ground that their naturalization was āillegally procured,āā she tells WIRED. āThat very broadly worded provision would seem to apply to any violation of law during the immigration/naturalization process, even minor and unintentional violations of the law.ā
US lawāspecifically, 8 U.S.C. Ā§ 1451āallows for the revocation of naturalization if citizenship was āprocured by concealment of a material fact or by willful misrepresentation.ā The classic example of the lawās application is to former Nazis who ultimately had their citizenship stripped in the US after the exposure of their hidden pasts. But the law, experts say, covers lying about having worked without authorization, and there are several points in the process at which an immigrant has to attest, under penalty of perjury, that they havenāt done so.
Form I-539, which is used to change immigration status, currently asks the applicant if theyāve ever violated the terms of the nonimmigrant status they now hold. Form I-485, which is used to apply for a green card, asks if the applicant has worked without authorization or ever violated the terms and conditions of their nonimmigrant status. Form N-400, which is used to apply for naturalization, asks if the applicant has ever given the US government āany information or documentation that was false, fraudulent, or misleading.ā The words āeverā or āanyā are bolded, and āeverā is written in capital letters.
These questions, says immigration lawyer Ira Kurzban, are asked to see whether an applicant obtained their residence validly, a prerequisite for citizenship. US immigration authorities have, he says, become āvery exactingā on this point over the past 10 years.
The US Citizenship and Immigration Service didnāt respond to an inquiry about whether forms used by its predecessor agency, the Immigration and Naturalization Service, asked exactly these questions at the time Musk would have been using them, but experts say he would have been asked substantively similar questions, as the relevant law hasnāt changed.
āThose grounds of deportability have been around for decades,ā says Yale-Loehr, āand the forms back then probably had similar or identical questions.ā
An immigrant who makes misrepresentations as part of the naturalization process can also face criminal exposure: Under US federal law, making a false statement to or concealing a material fact from the government carries a potential penalty of five years in prison.
Greg Siskind, a leading immigration attorney, doesnāt disagree that the law as written could expose someone who lied about working without authorization to loss of citizenship, but says that as a practical matter, it may not amount to a material fact.
āIf he had disclosed it, would that have prevented him from getting later immigration benefits?ā he asks. āThe answer to that is probably no.ā
Siskind nonetheless believes that there are serious questions here about, among other things, the nature of the professional relationship between the Musk brothers. And Muskās past is highly relevant to the clearances he reportedly holds as a top government contractor with an extensive portfolio of holdings related to national security.
Even if Musk were found to have violated the law, he would not be summarily deported. āItās generally quite difficult to revoke someoneās citizenship for relatively minor status violations which occurred decades earlier,ā says Aaron Reichlin-Melnick, a senior fellow at the American Immigration Council, who adds that this is āa good thing given how easy it can be to violate arcane immigration rules.ā
Under Trump, though, several experts pointed out, the government did far more to denaturalize citizens than it had previously. As Frost wrote in 2019, in the first year and a half of the Trump administration, USCIS opened an office dedicated to denaturalization, investigated thousands of citizens, and reported 95 to the Department of Justice with a recommendation for deportation. (From 1990 to 2017, there was an average of just 11 denaturalization cases per year.)
Even if USCIS had solid evidence that Musk had broken the law, it would, experts say, not handle the matter administratively, but rather could refer it to a US attorneyās office. Prosecutors, who have broad discretion to take up or decline cases, could then proceed, or not, as they saw fit.
Many of the open questions here could be cleared up by Musk authorizing the release of his immigration records under the Freedom of Information Act. His lawyer, Spiro, did not respond to a question asking whether he would do so.
Source: Wired Insider
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