US immigration officials are interested in your employees’ social media activity. Here’s why you should be too.
Employers in today’s workplace regularly review a potential candidate’s online profiles when making a hiring decision. Much like the modern job seeker, visa applicants should now expect the same screening from the U.S. government. Thanks to a new section the State Department has quietly added to the online visa application form (DS-160), the U.S. government is now able to access troves of additional information about visa applicants. The DS-160 now requires visa applicants to select all the social media platforms they have used in the previous five years and disclose all usernames, screen names and handles. The drop-down list contains 20 of the most popular social media and online platforms.
While the social media questions may be a surprise to visa applicants, the State Department has been in the process of implementing this change for some time. As part of the “extreme vetting” of visa applicants pursuant to President Trump’s 2017 travel ban and “Buy American and Hire American” executive orders, the department introduced a supplemental questionnaire for some applicants that requested extensive family, travel and employment histories, as well as all social media activity in the previous five years. The department has been weighing whether to require all visa applicants to fill out the supplemental form, and the addition of the social media question as a required question may be the first step.
For visa applicants, disclosing their social media usernames carries broad implications. Visa applicants should now assume that the State Department, as well as U.S. Citizenship and Immigration Services (USCIS) and U.S. Customs & Border Protection (CBP), have access to any information that is publicly available on their social media accounts, such as where they live and work, where they have traveled, where they worship, who their friends and coworkers are, their affiliations, and anything else that could be gleaned from their online musings. Something as forgettable as a “liked” photo of a friend’s dog may end up in a government database.
Though the DS-160 form only applies to new visa applicants, existing visa holders are continuously screened to verify that they remain eligible to travel to the U.S. Recently, there have been reports of individuals having their employment-based visas revoked when returning from travel outside the U.S. after CBP officers pulled up their professional profile online and found inconsistencies with the type of work allowed by their visa. CBP searches of electronic devices have surged, and under a 2018 policy, officers who determine that an advanced search is required can conduct a forensics search of a phone, laptop or other mobile device that accesses and downloads information beyond what is publicly available.
Individuals should be prepared during their visa or green card interview to answer questions about information on their social media accounts and address any potential inconsistencies. Employees should review their social media presence and make sure that their professional qualifications, educational background, employment histories, and job description are accurate and do not conflict with the terms of their visas. Additionally, employees may want to update their profile settings to make their online presence private.
HR departments should also consider putting in place policies warning employees that their social media activity may be requested and screened when applying for visas or other immigration benefits.
Matthew D. Gross is a Senior Associate in the Dallas office of Berry Appleman & Leiden LLP.
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