How to Answer Social Media Questions on Visa Application Forms

Since May 31, 2019, the U.S. State Department has asked social media-related questions on nonimmigrant and immigrant visa application forms.

The Social Media Questions

Here is the question found on both the Form DS-160 (Nonimmigrant Visa Application) and Form DS-260 (Immigrant Visa Application):

Curiously, the dropdown list of social media platforms differs by form. Namely, the Form DS-260 lists newer platforms:

It’s not clear whether you can successfully assert to not have a “social media presence” on a platform you “use” just for person-to-person messaging (e.g., WhatsApp, WeChat). The State Department has opened the door to that argument, stating back in 2019 that WhatsApp was not listed as a platform at the time because it was a “person-to-person messaging service,” not a social media platform. The distinction seems to be that only that latter includes features for publicly sharing statuses and media.

The State Department is not requesting passwords, stating, “Only that content which a social media account holder shares publicly will be viewed by the Department.” Further, “Consular officers are already directed not to engage or interact with individual visa applicants on or through social media when conducting assessments of visa eligibility.”

How Will the State Department Use Social Media Information?

The State Department’s Supporting Statement says:

The information will be assessed in the context of existing U.S. government information holdings, responsible U.S. agencies’ knowledge of the identity of applicants, and an understanding of existing and evolving threats to national security, to enable more rigorous evaluation of applicants. Within consular and fraud prevention sections of the Department’s overseas posts, public-facing social media information may be reviewed to assess potential visa fraud that would lead to a conclusion that the applicant is not eligible for a visa. For example, information on social media pages or posts may be used to validate legitimate relationships or employment required for visa eligibility, to identify indicia of fraud, or to identify misrepresentations that disguise potential threats.

Visa Applicants Should Audit Their Social Media Histories

• Please review both your own social media history as well as what others have posted about you online.
• Employers should caution employees to make sure their employment information on social media websites is accurate and consistent with petitions they filed with USCIS.
• Clients should let our firm know if any potentially damaging information is found.
• Be cautious about accepting “friends” on any site where you post private information.
• In some cases, it may be helpful to delete potentially harmful posts, or even to delete an account entirely. But be aware that the government may still be able to access such data.

What Legal Authority Does the State Department Have to Collect This Information?

The State Department claims that it has authority to collect this information pursuant to (a) President Trump’s March 6, 2017, Memorandum on “Heightened Screening and Vetting” for the Secretary of State, the Attorney General, and the Secretary of Homeland Security, and (b) President Trump’s March 6, 2017, Executive Order 13780: Protecting the Nation From Foreign Terrorist Entry Into the United States.

Criticisms of the State Department’s Policy

Critics see the social media questions as an invasion of privacy. The State Department’s is collecting information even about “anonymous” accounts, meaning accounts such as on Twitter where the social media company does not require the user’s real name for registration. Critics complain that this chills free speech, pointing out that as far back as the American Revolution anonymous speech was an important part of political dialogue. Arguably the single most influential piece leading to American independence was “Common Sense,” penned anonymously by Thomas Paine. A decade later, Alexander Hamilton, James Madison, and John Jay called themselves “Publius” when they published their views on the proposed Constitution in the Federalist Papers.

The State Department’s Supporting Statement also is “mindful that other countries may impose reciprocal requirements on U.S. travelers bound for their countries.” Critics complain that other countries may use social media information to deny visas or take other actions based on social media postings that would be considered constitutionally protected political speech or religious expression in the U.S.