DHS Secretary Jeh Johnson has told Politico that DHS has three pilot programs underway to analyze social media accounts as part of its application process for immigration benefits. The New York Times says there may be four such programs.
These programs appear to be a response to signs that Tashfeen Malik, the female shooter in the San Bernardino massacre, posted extremist views yet still obtained a visa to the United States. Malik’s messages were reportedly published under a pseudonym and were controlled by strict privacy settings, according to CNN, citing law enforcement officials. Yet she passed background checks during her fiancée visa application process in 2014. In responses, some lawmakers, including U.S. Senator John McCain, have called for mandatory social media checks as part of the visa application process. President Barack Obama has ordered both Homeland Security and State Departments to review the screening process for the fiancée visa, also known as a K-1 visa, for “possible program enhancements.”
A government memo issued several years ago describes how an officer can ask to become a “friend” of a social media user, thus gaining access to otherwise restricted content. The memo emphasizes that some users “accept cyber-friends they don’t even know.” See USCIS, Social Networking Sites and Their Importance to Fraud Detection and National Security (released under a Freedom of Information Act request July 20, 2010).
Secretary Johnson concedes that there are “certain legal limits” that constrain federal officials from scrutinizing the social media histories of foreigners trying to enter the United States, not to mention the histories of their U.S. citizen or permanent resident family members or corporate sponsors. “We are dealing with private communications and things for which there is an expectation of privacy, and you’re dealing with U.S. persons,” Johnson continued. DHS is expected to issue a new social media policy soon.
Chodorow Law Offices advises clients that immigration investigators do sometimes monitor Facebook, LinkedIn, and other social networking sites, including foreign language sites, to detect fraud and other ineligibilities in applications and petitions. Here are examples of how social media may be used by the government against the parties:
- In spousal immigration cases, the government may check social media “to see if petitioners and beneficiaries are in a valid relationship or are attempting to deceive USCIS about their relationship.”
- For employment-based immigration cases, the government may check to see if employees are working in accordance with the terms of their visa. Imagine if Henry, an H-1B visa holder, is directly employed by Company A but assigned to work on a project for Company A’s client, Company B. Henry posts on LinkedIn that he is working at Company B, even though he is supervised and paid by Company A. This could trigger a fraud investigation, as this information appears to contradict the terms of the H-1B. See Maxine D. Bailey, Immigration is Watching, California Lawyer (Dec. 2011).
- For nonimmigrants not authorized to work, the government may search for signs of unauthorized employment.
- For cases where work experience needs to be proved, the government may look for contradictory information.
- For any case, the government may look for any appearance of illegal behavior or security risks. DHS may have difficulty distinguishing actual illegal behavior or security risks from legitimate criticism of American foreign policy or even from humor or sarcasm. For example, a pair of tourists were detained and removed from the U.S. after posting on Twitter they planned to “destroy America,” which apparently the investigator didn’t recognize as British slang meaning they intended to “party hard” during their visit. See Richard Hartley-Parkinson, British Pair Arrested in U.S. on Terror Charges over Twitter Jokes, Mail Online, Jan. 31, 2012.
- For cases where the government has wide discretion (e.g., good moral character for naturalization), even casual remarks could negatively impact the discretionary decision.
Our law firm further advises clients:
- Please review both your own social media history, as well as messages others have posted to your account and what others have posted about you on their own accounts. Let our firm know if any potentially damaging information is found.
- Employers should caution employees to make sure their employment information on social media websites is accurate and consistent with petitions they filed with USCIS.
- Check your accounts’ privacy settings.
- Be cautious about accepting “friends” on any site where you post private information.
- Delete social media “friends” that you don’t know on accounts where you post private information.
- In some cases, it may be helpful to delete potentially harmful posts, or even to delete an account entirely.