When Elon Musk launched his career working illegally in the United States, the U.S. immigration system did little to pursue or punish people who violated the terms of student visas, immigration experts said.
If Musk’s ally Donald Trump had been in the White House, however, things might have been different.
When he was president, Trump tried to tighten rules for foreign students like Musk, proposing to make it easier to bar them from the United States if they overstayed their visas or otherwise violated the terms. The proposal was blocked by a federal court.
Trump’s Justice Department also created an office to strip citizenship rights from naturalized immigrants who commit crimes, with a stated focus on terrorists, war criminals, sex offenders and fraudsters. If Trump wins a second term, top adviser Stephen Miller has said that project would be “turbocharged.”
In recent months, Musk has emerged as one of Trump’s biggest supporters, plowing nearly $120 million into a political action committee devoted to reelecting the former president. Musk has also avidly boosted Trump’s rhetoric about the dangers of illegal immigrants. But Musk also violated the terms of his student visa, placing him among the ranks of immigrants Trump targeted during his presidency.
“The Trump administration went after students in a way we have seldom seen before. They purposefully put them in their sights. Elon Musk would have been caught up in that, too,” said Adam Cohen, an attorney who specializes in employment visas. “Under a Trump world,” Cohen said, Musk “would have been in a very bad situation.”
Neither Miller nor representatives of the Trump campaign responded to requests for comment.
To be sure, Trump also has proposed giving green cards to foreign students who graduate from U.S. colleges. But such a policy would not have helped Musk during his period of illegal employment, which appears to have begun in 1995. Musk didn’t receive undergraduate degrees from the University of Pennsylvania until 1997, according to the university.
Musk — who was born in South Africa, obtained Canadian citizenship through his mother and is now a naturalized American citizen — has denied working in the United States illegally. He has said he had a J-1 student visa before landing a specialized worker temporary visa called an H-1B. However, he has declined to answer questions about exactly how and when he obtained the work visa.
Last week, The Washington Post shed light on that question, reporting that Musk arrived in Palo Alto in 1995 for a graduate degree program at Stanford University but never enrolled in courses. Instead, he launched a start-up, Zip2, that later sold for about $300 million.
Leaving school left Musk without a legal basis to remain in the United States, according to immigration experts — a fact that was discovered by Zip2 investors, who gave Musk and his co-founders 45 days to obtain legal work status.
An immigration attorney advised Zip2’s co-founders to downplay their leadership role with the company and scrub their résumés of U.S. addresses that might suggest they were already living and working in the United States, according to documents obtained by The Post. The attorney also advised Musk to obtain passport-size photos and apply to the U.S. “visa lottery.”
Neither Musk nor the attorney responded to requests for comment.
While illegal crossings at the southern border draw the bulk of public attention, Congress has long expressed frustration with visa violators, particularly those who stay in the United States longer than legally permitted. About 42 percent of the roughly 11 million undocumented immigrants in the United States entered as students, tourists or on business trips — and then overstayed their visas, according to a report last year by the Congressional Research Service.
Frustrated with lax enforcement, Congress authorized the federal government in 1996 to establish an electronic system to track student and exchange visitors, including those who violate their status and overstay in the United States. That system, called the Student and Exchange Visitor Information System, or SEVIS, was deployed in 2003 — long after Musk obtained a work visa.
Scrutiny of nonimmigrant visa holders also increased after the Sept. 11, 2001, terrorist attacks: All 19 hijackers had arrived on student, tourist or business visas.
Today, universities and exchange visitor programs are required to enter students’ information into SEVIS and notify the government if a student falls out of status. Otherwise, the school could lose its authority to host foreign students.
In Musk’s time, universities also were required to alert the government if foreign students failed to enroll or otherwise violated their visas, so they could be deported. But enforcement then was spotty. Schools would have sent the notifications by mail or fax, and information may have fallen through the cracks, said Stephen Yale-Loehr, an immigration law professor at Cornell University.
People using a J-1 visa are allowed to work only 20 hours per week off campus, with the prior approval of university officials, and only if they are engaged in a full course of study, according to U.S. law. Musk has acknowledged that he was not enrolled in the Stanford graduate program.
In the 1996 law, Congress and the Clinton administration made immigration policy more punitive by instituting bars to admission for people who have been in the country unlawfully. Transitioning to a lawful status often means leaving the country first, Yale-Loehr said. Those who had been in the country unlawfully were barred from reentering for three or 10 years, depending on how long they had been living in the U.S. illegally — penalties that are still in place today.
The Trump administration tried to ratchet up those rules in 2018 by making it much easier to bar reentry to students who violate their visas.
“The message is clear: These nonimmigrants cannot overstay their periods of admission or violate the terms of admission and stay illegally in the U.S. anymore,” said L. Francis Cissna, Trump’s director of U.S. Citizenship and Immigration Services, in a statement announcing the changes.
An updated version of that policy memo was blocked from taking effect by a federal court, which ruled that the Trump administration had failed to follow administrative rules in making the changes. If elected, Trump could try again to institute the policy, said immigration lawyer Greg Siskind, adding, “They’ll learn something from that time.”
Under President Joe Biden, Immigration and Customs Enforcement has been directed to prioritize immigration violators who are deemed national security or public safety threats, as well as recent illegal border-crossers. Most student dropouts with J-1s would not be at the top of the list. A White House spokesman did not respond to a request for comment.
Musk has never publicly acknowledged his period of illegal status, conceding only that he lived for a time in an immigration “gray area.” But his visa issues could raise separate questions for his security clearance, which he holds as the CEO and founder of SpaceX, an aerospace company with billions of dollars in federal contracts.
“At a minimum, a determination that he had been less than truthful with immigration authorities would absolutely be something that security authorities could separately consider as casting doubt on his trustworthiness and good judgment,” Bradley Moss, a lawyer who works in security clearance law, wrote in an email.
“If his name was anything but Elon Musk,” Moss said, “the odds are his security clearance would more than likely face revocation under those circumstances.”