Immigration Attorneys, It’s Time to Add a Whole New Section to Your Client Screening Sheets

Starting on May 31, virtually all immigrant and nonimmigrant visa applicants are now required to disclose social media identifiers from the last five years as part of the visa application process. The change is expected to affect nearly 15 million visa applicants.

Speaking to The Hill, a State Department official said that social media vetting “will be a vital tool to screen out terrorists, public safety threats, and other dangerous individuals” from entering the U.S.

Visa applicants are now required to provide their username or handle for major social media sites, using a dropdown menu in the online application. The roots of this new policy can be found in President Trump’s March 2017 executive order 13780, which required the Secretary of State, the Attorney General, the Secretary of Homeland Security, and the Director of National Intelligence to develop “screening and vetting standards and procedures” for all immigration programs. In March 2018, the State Department announced its intent to include social media vetting in the visa application process. On May 29, 2018, AILA submitted comments in response to these proposed collections discussing additional burden these questions place on applicants, the impact they may have in discouraging individuals from applying for a visa, as well as AILA’s concerns as to how the collected information will be utilized.

Practicing immigration attorneys likely won’t be surprised by this official expansion of vetting into investigating noncitizens’ social media. Well before the State Department’s announcement in 2018, I watched DHS counsel attempt to impeach an asylum client’s credibility by claiming she was allegedly still Facebook friends with her abuser.

Requiring disclosure of social media usernames and handles raises major practical considerations for attorneys, as well as serious civil liberties concerns. Where such information was previously only sought from certain visa applicants (such as those who traveled to areas controlled by terrorist organizations), now it is being sought from virtually all immigrant and nonimmigrant visa applicants, with only a select few categories being exempted. TIME Magazine estimates the number of affected applicants will balloon from approximately 65,000 per year to nearly 15 million.

It will certainly take time to see how this new requirement plays out on the ground. Practically speaking, it seems unavoidable that processing times will increase simply because of the sheer volume of information that consular officers will have to adjudicate. In addition, the potential landmines are myriad. If someone forgets about a secondary account they created four years and 11 months ago, you may suddenly find yourself fighting with the consulate about whether it was a willful misrepresentation or not. Or if someone’s Twitter handle mirrors a name or alias used by a suspected terrorist, you may find yourself fighting to keep the terrorist label off your client’s name and out of their A file.

Social media interactions are often short or fragmented, and the further back in a person’s social media web one goes, the more difficult it may become to get the context in which a one- or two-line statement should be read. The potential for a word, phrase, or sentence to be misconstrued, misunderstood or misinterpreted is tremendous.

Finally, the civil liberties implications are serious. When the State Department first publicized its plan, the ACLU responded noting the chilling effect the plan will have on freedom of speech and association for both immigrants and U.S. citizens. The ACLU also highlighted the risk of discriminatory targeting and denials of visa applications.

As the State Department undertakes this official new vetting process, concerns over these issues have not diminished. It is still unclear how the government intends to use the information it gathers, not only on applicants, but on friends, family, and others in their networks. It is also unclear how the government will access some data, as social media accounts can be deleted, defunct, private, public, or some other combination of statuses. Over the weekend, the ACLU reiterated that privacy and First Amendment concerns remain paramount.

AILA members, keep an eye out for a practice alert on this topic coming soon from the Department of State Liaison Committee.

by Julia Decker