State Department May Require More Social Media Information from Visa Applicants

Miles & Stockbridge P.C.

On March 30, 2018, the U.S. Department of State (DOS) published notices in the Federal Register seeking public comment on its proposal to amend Forms DS-260 and DS-160, which are the forms that must be completed by all immigrant and nonimmigrant visa applicants. The proposed amendments include adding questions that would require the disclosure of the visa applicant’s “identifiers” on a variety of social media platforms over the five year period prior to the completion of the application form. While the DOS has not specifically said which social media platforms will be covered by the mandatory disclosure requirement, it seems likely that the most widely used social media platforms (for example, Twitter, Instagram, LinkedIn, SnapChat, YouTube, WeChat, SinaWeibo) will be included. In addition, the DOS intends to provide space on the forms for the voluntary disclosure of the visa applicant’s social media identifiers on any other platforms used by the applicant. The proposal indicates that visa applicants will be required to supply their social media “identifiers” – presumably their user names or handles; there is no indication that passwords will be required.  

The DOS also proposes to add other questions to the DS-260 and DS-160 forms requiring the disclosure of the visa applicant’s telephone numbers, email addresses, and international travel history, prior immigration violations, and history of any family involvement in terrorist activities. The stated purpose of these additional questions is for “identity resolution” and “vetting purposes based on statutory visa eligibility standards.”

What Does This Proposal Mean for Future Visa Applicants?

While this proposal is not final yet (pending public comment and approval from the U.S. Office of Management and Budget), and while the DOS appears to have stopped short of requiring passwords for visa applicant’s social media accounts, such applicants need to be aware that the DOS is likely to be able to access and review their social media accounts. Indeed, some social media inquiries are already being made under rules put in place last year permitting the discretionary collection of social media identifiers by consular officers when required to confirm an applicant’s identity or in cases where addition scrutiny was warranted in connection with terrorism or national security concerns. In addition, last year U.S. Customs and Border Protection (CBP) added a request (but not a requirement) for the disclosure of social media identifiers as part of the Electronic System for Travel Authorization (ESTA) screening process for admission to the U.S. as a Visa Waiver Visitor. The rules just proposed by the DOS would formalize the process by which social media identifiers are collected and mandate the collection of such information from all immigrant and nonimmigrant visa applicants.  

This is just one part of the U.S. government’s ongoing effort to increase the scrutiny imposed on persons seeking entry to the U.S. While we would hope that reasonable judgment would be exercised by consular officers in the review of matters posted on social media by visa applicants, this is an area in which visa applicants should also exercise good judgment and reasonable caution, keeping in mind that even innocent postings on social media are potentially subject to misinterpretation or misunderstanding.

Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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