Proposed Scrutiny of Social Media Would Impact Visa Issuance

On March 30, 2018, the Department of State (DOS) posted proposed revisions to required forms used by immigrant (permanent residency) and nonimmigrant (temporary) visa applicants, including those seeking to come to the U.S. based on their employment.

The suggested revisions would require visa applicants (with extremely limited exceptions) to provide their account identifiers used on a wide variety of social media platforms, as well as all of their phone numbers, email addresses, and international travel details from the previous five years. This is part of the current Administration’s increased vetting of most visa applicants.

These new questions will undoubtedly lead to an increase in visa denials of individuals who are otherwise qualified for their immigrant or temporary visas, including those based on employment. How could this happen?

First, under U.S. immigration law, there is no appeal to an independent body from decisions made by consular officers at U.S. consulates abroad. Second, consular officers have wide discretion to grant or deny visas. Third, after decades of “consular non-reviewability,” it is not uncommon for consular officers to deny visas based on speculation rather than fact. Fourth, the current Administration’s calls for “extreme vetting” may understandably push consular officers to err on the side of denying, rather than granting visas.

Past practice indicates that these proposed questions could trigger visa denials for a wide variety of reasons. For example, an H-1B specialized knowledge visa applicant who prefers Instagram or Twitter and forgets that five years ago, she signed up for, but then never used, Tumblr, may be denied a visa simply due to that omission when the government discovers the Tumblr account on its own. Or an immigrant visa applicant who posted photos on his social media account(s) showing him with a drink in hand at various parties over time, may receive a denial because consular officers think he abuses alcohol even if that is not the case. Or, an applicant for an L-1 intracompany transferee visa who at one point didn’t restrict who could “friend” him may have a “friend” with whom he has never actually interacted who has committed crimes or appeared on a “watch list,” leading consular officers to erroneously suspect a connection and corresponding negative activities by the applicant.

Maine employers concerned that the addition of these new questions could cause visa denials for valuable employees can file comments up to May 29, 2018 by following the instructions in the Federal Register for immigrant visas here, and here for nonimmigrant visas.   Maine employers can also contact MeBIC for assistance in drafting comments.