08 Feb Be Careful What You Post Online: How immigration authorities carry out the operational use of social media
In response to the December 2, 2015 San Bernardino shooting, Congress and the President have directed immigration authorities to expand background checks of individuals seeking entry to the U.S. and those already in the U.S, including Legal Permanent Residents (LPRs). Both the Department of Homeland Security and the Department of State have interpreted this expansion to include checking an individual’s social media.
Below are brief descriptions of how this is accomplished, but the bottom line for individuals is to be mindful of what you post on your social media account if it is not secured by privacy settings, and be sure to disclose your accounts to your attorney if you have any questions. Practitioners representing clients before USCIS should conduct due diligence by investigating their social media presence.
USCIS
USCIS has long been utilizing social media in its FDNS division, but in December 2015 it began testing and applying social media gathering techniques in tracking and monitoring online activity by certain refugee applicants in a non-public program. The biggest change was a September 18, 2017 Federal Register notice that USCIS would permanently retain social media information in an individual’s Alien File, or “A-File.” Key portions of this notice were further explained by USCIS Director Francis Cissna in a March 19, 2018 letter, clarifying standards and practices by USCIS officers engaged in the program:
– USCIS does not actively solicit social media handles;
– USCIS officers manually check public-facing social media;
– Officers do not friend, follow, or otherwise try to gain access to information secured behind privacy settings;
– Adjudications are never based solely on social media, and political opinions are only considered if relevant to the adjudication;
– Individuals may respond to derogatory information in an interview, RFE, or NOID; and
– USCIS may also identify positive information to support a claim.
Department of State
The State Department made news last year with two Federal Register notices (1, 2) that social media information will be collected on all immigrant and nonimmigrant visa applications. Key takeaways from State’s new rules:
– Social media collection will be implemented pending approval by the Office of Management and Budget;
– Once approved, the DS-160 and DS-260 will have forms soliciting social media handles used over the previous 5 years from a list of sites;
– The list contains popular foreign social media (e.g., Sina Weibo and VK);
– Applicants can voluntarily provide information from sites not on the list;
– Only public-facing information will be reviewed to determine potential visa fraud; and
– Consular officers will not ask for passwords, friend or follow individuals, or attempt to subvert privacy settings.
– Read the full supporting statement here.
ICE
ICE began its own social media pilots in December 2015 and August 2016. The conclusion of a redacted Inspector General report was that ICE’s automated tools were not very effective.
The Agency still remains dedicated to utilizing social media, and unlike USCIS and the Department of State, ICE is not restricted to public-facing profiles. As explained in a 2016 Privacy Impact Assessment, ICE may use its law enforcement powers to obtain information and in undercover operations it may connect to certain individuals with a friend request.
Stay tuned for future updates on law enforcement agencies such as ICE and CBP, but the bottom line for social media use is to keep your profile private, do not post content that could be derogatory to your case, and for immigration lawyers to ensure they review their clients’ social media pages before filing a petition or recommending consular processing.
At ALG, most of our staff has personal experience with the U.S. immigration system. We channel this experience into our work to provide the best possible service to our clients. Our passion for the field drives us to stay on the cutting edge of U.S. immigration law.
Nothing within this article should be construed as legal or professional advice.
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