Back in May of 2017, the Office of Management and Budget approved a new questionnaire that allows the Department of State to inquire into social media handles of US visa applicants warranting further scrutiny. On Form DS-5535, applicants are instructed to disclose, in addition to biographic history for the past fifteen years, social media handles as well as email addresses used during the last five years. To the consternation of privacy rights advocates, the Department of Homeland Security, which regulates immigration matters within the United States, is poised to take things even further. On September 18, DHS quietly released a new rule in the Federal Register that modifies current recordkeeping practices to reflect electronic and digital collection methods. Recognizing that an individual’s “alien file” may not necessarily consist of paper documents, the rule purports to modernize the definition by expanding its boundaries. Effective October 18, 2017, unless modified, a foreign national’s “A file” will also include the following:
“Social media handles, aliases, associated identifiable information, and search results.”
Usernames and Web History Potentially Subject To Recordkeeping
As an example, this essentially means that usernames associated with the following accounts and an individual’s personal internet searches could be examined and recorded as part of an immigrant’s file:
· Facebook messenger
· Google search results
· Bing search results
Certainly, the above is only illustrative and hardly represents the breadth of social media potentially exposed to scrutiny by the government.
The rule notes, quite ominously, that the purpose of maintaining a system of records among many, is also to “assist DHS with detecting violations of immigration and nationality laws; supporting the referral of such violations for prosecution or other appropriate enforcement action; supporting law enforcement efforts and inspection processes at the US borders; as well as to carry out DHS enforcement, immigration, intelligence, and or other homeland security functions.” Unfortunately, without any standardized guidelines or rigorous oversight, practically any activity on the web could potentially implicate “homeland security” and be misconstrued. The elasticity and imprimatur of national security-if not carefully circumscribed-can easily be abused to violate individual privacy rights as well as chill freedom of expression. People are understandably concerned that social media will be scoured to identify and discriminate against certain religious and political ideologies arbitrarily deemed inimical to the US. Additionally, vetting a foreign national’s web and social media interaction may considerably delay processing times, as officers would presumably have to wait on clearance from whoever is examining the internet information. Extensive delays could further jeopardize individuals applying for adjustment of status from within the United States whose status may have run out or who may have never had status to begin with.
Who Is Affected?
There are several classes of people are covered by the new rule. Among the most notable include:
· Lawful permanent residents (“green card holders”)
· Naturalized US Citizens (green card holders who have gone through the naturalization process and have become US Citizens)
· Individuals when petitioning for benefits under the INA, as amended, on behalf of another individual
· Individuals who receive benefits under the INA
· Individuals who are subject to the enforcement provisions of the INA
· Individuals who are subject to the INA and
o Are under investigation by DHS for possible national security threats or threats to public safety
o Were investigated by DHS in the past
o Are suspected of violating immigration related criminal or immigration related civil provisions…or are witnesses and informants having knowledge of such violations
· Relatives and associates of any of the individuals above who are subject to the INA
· Preparers assisting an individual seeking an immigration benefit or agency action under the INA
· Interpreters assisting an individual seeking an immigration benefit or agency action under the INA
· Attorneys or representatives recognized by USCIS or accredited by the BIA
Needless to say, this is an alarming development. For those interested in reading the rule, here is the link (www.federalregister.gov/documents/2017/09/18/2017-19365/privacy-act-of-1974-system-of-records). This is one of just many changes that the government is implementing as part of its effort to tighten our borders. One need only look at the new I-130 and I-485 forms, which have been substantially revised this year to incorporate more biographic information and security questions, to see the direction things are going. Immigration has always been more than just the forms, but now more than ever, one needs a comprehensive understanding of the process and how all the forms, policies, and law interact to facilitate a successful outcome. The above is general information only and not to be relied upon as legal advice. It does not create an attorney client relationship nor should it be relied upon as advice in lieu of consultation with an attorney.