New immigration policy requires all U.S. Consulates to review applicants’ public social media history, past e-mail addresses and recent phone numbers when adjudicating visa applications.

Foreign nationals applying for U.S. visas from outside the U.S. are now required to disclose their public social media and contact history for the previous five years. According to the U.S. Department of State, the additional information, which was voluntary under the Obama administration, will strengthen efforts to vet applicants and confirm identity.

Which social media platforms and profiles need to be reported?

U.S. Immigration agencies under the U.S. Department of Homeland Security, including U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement have used social media review as part of their adjudications and enforcement programs as far back as 2017. Recently, this protocol has been expanded by the U.S. Department of State, which has jurisdiction over the U.S. Consulates around the world.

The existing application forms, DS-160, Nonimmigrant Visa Application and Form DS-260, Immigrant Visa Electronic Application, have been updated to require the following information:
• Disclose the social media platforms applicants have used within the previous five years.
• Provide their user name/handle for each platform; passwords are not required.
• Provide current email and phone number details, as well as email addresses and phone numbers used in the previous five years.

The revised forms cover the most common U.S.-based social media platforms such as Facebook, Flickr, Google Plus, Instagram, LinkedIn, Myspace, Pinterest, Reddit, Tumblr, Twitter, Vine and YouTube; Chinese sites Douban, Qzone, Sina Weibo, Tencent Weibo and Youku; and Russian social network VKontakte.

The new policy is part of the Trump Administration’s March 2017 “extreme vetting” program, calling for intensified screening of visa applications, including social media accounts of visa applicants from countries designated as national security threats. The application of this policy has now been expanded to all arriving foreign nationals regardless of country of origin.

How can government officials use social media to make an immigration benefit determination?

Social Media and online presence information can influence decisions in many ways:
• Applications at U.S. Consulates showing questionable affiliations or language perceived to be a national security threat
• Applications for benefits filed with U.S. Citizenship and Immigration services, including marriage-based green card processes. Is there any information on Facebook that is inconsistent with the benefit sought? For marriage-based cases, is there sufficient information to confirm a bona fide relationship between the parties?
• Admission sought into the U.S. at a Port of Entry before Immigration and Customs Enforcement (ICE) – the law enforcement arm of DHS
• Employment-based applications: is there an indication on LinkedIn or on the employer’s website that an applicant has been working in the U.S. without authorization? Sometimes employers post an employee profile on their website before work authorization is approved by USCIS. Likewise, sometimes an “employee” adds employment history on their social media account when they were not authorized to work in the U.S.

The failure to volunteer information does not in itself constitute a misrepresentation, but the current version of the forms do not provide an option to refuse to answer. If the applicant chooses the option “none” as his or her reply when it is not a truthful answer, the response could expose in certain circumstances the applicant to denial of the application and, worse, potentially to an accusation of fraud or willful misrepresentation if the failure to disclose the information “tends to shut off a line of inquiry which is relevant to … eligibility and which might well have resulted in a proper determination that he or she be inadmissible.” (Matter of S- and B-C, 9 I. & N. Dec. 436, at 447.)

The application of this new policy is so broad that in some cases, even posts or comments made by other “connections” or “friends” on the applicant’s social media platforms can affect the ability to obtain an immigration benefit or gain admission into the U.S. In one such recent incident, an incoming 17-year-old Harvard University student from Lebanon was refused entry at the border, not because of posts he had authored himself, but rather because individuals on his list of “friends” had posted political points of view on social media that were deemed to be opposed to the U.S. When asked about the conversation with ICE, the student confirmed that he did not “like,” comment on, or share the posts;  regardless, he was refused entry to the U.S. on this basis. While this student was ultimately admitted to the U.S., it was only after significant efforts by various groups and significant media attention that CBP changed course.

Going even further, more recently, the DHS reportedly modified its privacy policies to permit USCIS officers in its Fraud Detection and National Security Directorate (FDNS) to create fictitious social media accounts in order to monitor the social media accounts/activity of individuals applying for visas, green cards and US citizenship. USCIS has justified this change in policy by stating that its use of phony social media accounts to monitor applicants’ activity will make it easier for investigators to search for potential evidence of fraud or security concerns as they decide whether to allow someone entry or continued status into the U.S. Although USCIS/FDNS officers remain prohibited from “friending” or “following” an individual, or otherwise interacting with social media users, they can now create fake accounts to investigate and passively monitor applicants’ social media activity; which serves as an additional warning to foreign nationals to be mindful of their posts, likes, shares, and other activity online.

Since 2015, the number of device searches has increased four-fold to over 30,200 each year, and expectations are that the frequency of electronic device searches at ports of entry will continue to increase at a rapid rate. As a result, it is more important than ever for travelers and U.S. visa applicants to be aware of their social media presence online and be prepared for the potential issues raised above.

Best practices for navigating DHS’s increasing use of social media

• In many cases, visa applicants may be wise to reduce their social media presence/participation in light of this change to protect their privacy. In many cases, the foreign national does not remember all of the various social media accounts that were created, or they may no longer have access to password information.

• Visa applicants should ensure that their LinkedIn profiles have accurate and updated employment history information to avoid inconsistencies between their online accounts and their employment history as stated in the visa application. Any U.S. employment listed must have been performed while under a visa classification that allowed employment under that particular employer’s sponsorship.

• Employers should not prematurely post information, including announcements, press releases or profiles about a prospective employee until the employee has received employment authorization.

• Applicants should be mindful of those with whom they associate on social media, especially those who are vocal about controversial political issues, or those demonstrating anti-U.S. government views; as the views of friends and connections may be imputed to the visa applicant.