Visa Applicants Coming to the U.S.? Not Without Disclosing Social Media Handles

On May 30, 2019, the United States began requiring that visa applicants provide the social media identifiers for all accounts used within the last five years. The requirement, which appears on the U.S. Department of State Forms DS-160 and DS-260, affects all nonimmigrant and immigrant visa applicants – short-term visitors and green card applicants alike. Visa applicants and their sponsors and employers should be prepared for overall slower processing times and increased visa denials.

Who Must Provide Social Media Handles?

The DS-160 (Online Nonimmigrant Visa Application) generally is required for applicants seeking temporary, nonimmigrant visas, including business visitors, tourists, family visitors, students, executives and managers, technology workers and other specialty occupation workers, doctors, scientists, and investors. The DS-260 (Online Immigrant Visa Application) is required for family and employment-sponsored green card applicants applying from outside the United States. Because Canadians generally can enter the U.S. without a visa, they are exempt from completing the DS-160, except for investors and a few other categories, but are subject to the DS-260 requirement. Visitors from friendly “visa waiver” countries who must complete the Electronic System for Travel Authorization (ESTA) screening process are requested, but not required, to provide social media handles. Immigration petitions filed in the United States do not contain the question.

What Information is Required?

The question has a drop-down menu that lists 20 specific social media platforms:

The State Department guidance directs visa applicants to provide information associated with all online providers/platforms, applications and websites used to collaborate, share information and interact with others and to list the following associated with the individual’s social media profile:

• Username;
• Handle;
• Screenname; or
• Other identifier.

The instructions direct not to provide passwords.

Can an Applicant Avoid Providing Information?

No. If the question is left unanswered, the system does not permit the applicant to proceed on the form. There is an option of answering “none.” But an applicant who answers “none” undoubtedly will be scrutinized at the visa interview, and the consular officer very likely will have independently searched for an online presence of the applicant and may challenge whether the answer was accurate. A material misrepresentation of any type on a visa application may result in denial and potentially a finding of fraud. Because there is an open-text field for the social media handle information, conceivably, applicants legitimately could answer “unknown” or “I do not recall.” An applicant who is not tech-savvy might be forgiven for failing to remember the Facebook username created perhaps more than a decade ago and for not knowing how to find it. That sole factor should not be a basis for a visa denial.

How Will the Government Use the Information?

In addition to using the information for identity verification, the Department of State indicates it will use the information collected for “vetting purposes based on statutory visa eligibility standards.”

Customs and Border Protection (CBP), which administers ESTA, indicates that “Information found in social media will enhance the vetting process and may be used to review ESTA applications to validate legitimate travel, adjudicate VWP ineligibility waivers, and identify potential threats . . . . For example, social media may be used to support or corroborate a traveler's application information, which will help facilitate legitimate travel by providing an additional means to adjudicate issues related to relevant questions about identity, occupation, previous travel, and other factors. It may also be used to identify potential deception or fraud. Social media may help distinguish individuals of additional concern from those individuals whose information substantiates their eligibility for travel.”

For some time, consular officers have used the option of “googling” a visa applicant on an ad hoc basis to assess consistency between discoverable facts and those set forth in the application. For example, a foreign job applicant who prematurely lists a future U.S. employer on a LinkedIn profile may find the visa application delayed while an investigation ensues to ascertain whether he has worked without authorization. But consular officers have been directed not to create shadow profiles or to attempt to “friend” visa applicants to obtain information. With the added question regarding social media identifiers, consulates can more readily evaluate concerns ranging from security to whether the applicant intends to comply with visa limitations.

During the public comments period for the rule, a great deal of concern was expressed that online information may be taken out of context, and, for example, opinions on one’s social media account may be misconstrued and given undue weight. An even greater concern is that by asking the question on the forms, the State Department allows consular officers to deny a visa applicant for misrepresentation if information is omitted or erroneous. Innocent mistakes should not result in a visa denial. Technically, there is no “appeal” from a visa denial; however, in some instances, the consular section will agree to reconsider and, in most instances, an applicant denied is not barred from reapplying.

Is This Extreme Vetting?

This question is intended to be used for routine purposes and not what is referred to as “extreme vetting.” The State Department has a separate form, the Form DS 5535, (Supplemental Questions for Visa Applicants), for immigrant and nonimmigrant visa applicants "who have been determined to warrant additional scrutiny in connection with terrorism or other national security-related visa ineligibilities." The DS-5535 requires social media platforms and identifiers for the last five years but, in addition, requires 15 years of travel history, addresses and employment, along with identification of family members.

What Should an Applicant Do to Deal with the Question and Any Negative Consequences?

• Applicants always must answer questions truthfully but need not volunteer unnecessary information.
• ESTA applicants should not answer the social media question because it is not required.
• Visa applicants should ensure their social and professional profiles have accurate and updated employment history information to avoid inconsistencies.
• Increase privacy settings on accounts. The CBP guidance indicates that, at least for ESTA, the focus will be on visibility of the publicly available information on the platforms, “consistent with the privacy settings the applicant has chosen to adopt for those platforms.”
• Travelers to the United States may choose to delete social media accounts but will still be expected to be forthcoming with required information about usernames, handles, etc., for the last five years, and should anticipate that in some (but not all) cases, a technical forensic analyst might recover deleted records.
• Applicants with delayed processing or denials should consider contacting an immigration lawyer to consider options for remedies including, if needed and available, a waiver to overcome an inadmissibility finding.