Immigration in the Age of Social Media
  • Social media has revolutionized everything from cultural interactions to politics to business. It has changed company hiring practices and university admission processes—and it is starting to significantly impact immigration and global mobility for individuals and employers.

    Visa officers around the world are starting to search social media sites to substantiate travelers' visa applications when considering whether to grant or deny a visa. Employers and individuals should note that governments are reviewing social media not only for extreme content, but also for inconsistencies on visa applications. For example, visa officers may look into relationship or employment history. Visa officers have full discretion to deny the visa request if what they find through a web search leaves them unsatisfied with the visa applicant's responses.

    Visa applicants beware

    Several cases have illustrated that governments are denying visas on the basis of what they find on social media. In Australia, for example, authorities denied a visa application because the applicant claimed he had converted to Christianity; however, his social media indicated that he was Muslim. A court eventually reversed this particular case, but nonetheless held that social media can be used as evidentiary information in immigration determinations. "This federal court ruling is particularly meaningful for BAL clients and sets precedence for future cases. When assessing applications, any details gathered on social media platforms are indeed information that can be used as a reason to refuse the visa application," explains Martin Russell, Director of BAL's Melbourne office.

    The U.K. reportedly began checking the social media of visa applicants in 2015 to root out anyone who expressed support for extremist groups. Although not adopted as a general policy for deciding all U.K. visa applications, foreign workers should still expect vetting of social media histories and any other online presence that could be deemed as extremist activity. Communications found on social media platforms are also used to prove bona fide relationships on visa applications. "For the last few years, we've seen an increased reliance on social media messages, screenshots of photos and communication between couples to evidence a genuine relationship," said Rekha Simpson, Senior Immigration Manager in BAL London. "Gone are the days of relying on call cards and phone bills to prove the existence of couples courting."

    Individuals are not the only targets of social media vetting, as companies are also being scrutinized for their online presence and the veracity of their applications as sponsors. The Ministry of Manpower (MOM) in Singapore is known to conduct an online search of new or small entities applying to sponsor employment passes. "It's not surprising that companies can find themselves on the receiving end of an online investigation," notes Immigration Manager Susan Donaghy of BAL Singapore. "This highlights how serious MOM is about enforcing laws for fair consideration of local workers and against false applications for the sponsorship of foreign workers in Singapore."

    In Canada, many visa applicants have received rejection letters because of inconsistencies found through an online search. Canadian consular officers assessing permanent visa applications tend to consider any information that is publicly available when making their decision as to whether the relevant application criteria have been met. Under the principal of "procedural fairness," if a consular officer finds something unfavorable online, such as an applicant's social media account showing a number of photos with someone other than the "spouse" listed on the application, the officer may request an interview and give the applicant an opportunity to explain. According to Jennifer Fisher, a Senior Immigration Manager in BAL's Dallas office, "It is becoming more and more common for immigration authorities to investigate
    applicants' various online profiles, and if the officer is unsatisfied with the applicant's response or justification, the rejection letter says something along the lines of, 'An open source search has found an anomaly.'"

    In South Africa, a U.S. pastor was denied a visa and banned by the then Home Affairs Minister, Malusi Gigaba, for extreme anti-gay rhetoric on social media and other platforms. The Department of Home Affairs (DHA) also went through great lengths to identify individuals who were traveling with the pastor and banned the whole group as well. Although U.S. nationals currently enjoy visa exemption status, Gigaba asserted that the South African government may deny entry to those who are deemed as "undesirable persons," especially anyone who is inciting hate speech against a community or group. Under the South African Immigration Act 9 of 2002, "a member of or adherent to an association or organization advocating the practice of racial hatred or social violence" is inadmissible.

    Owen Davies, BAL's Managing Director for Sub-Saharan Africa, says, "BAL will see future cases where content from social media renders travelers inadmissible, and the trend could very well impact business travelers and assignees. What's more, travelers should be aware that individuals, using public online information, could influence how the government determines whether someone is inadmissible."

    'Extreme vetting'

    President Donald Trump has promised "extreme vetting" of Muslim travelers and appears poised to make social media vetting a mandatory process that could encompass all travelers to the U.S. The new U.S. Department of Homeland Security secretary, John Kelly, told a congressional committee in early February that the department may soon demand login information (usernames and passwords) for social media accounts from foreign visa applicants—at least those subject to the controversial travel ban following the executive order on terrorism and immigration; those who do not comply will be denied entry into the U.S. but no clear guidelines have been reported.

    The proposal to vet visa applicants' social media accounts as part of the background checks is a bipartisan issue. Both parties, including Senate Democrats, have also made a similar request to the Department of Homeland Security in the past. The State Department confirmed it already occasionally screens social media accounts as part of the visa-application review process, as does the Department of Homeland Security. However, Kelly's proposal would go beyond accessing publicly available information.

    The trend began in December when visa-waived travelers from the 38 countries in the visa waiver program were prompted to voluntarily provide account names for their social platforms. The request was optional and applied to travelers applying for or renewing their visa waiver status. In March 2017, the Trump administration introduced its first form of extreme vetting" of visa applicants to the U.S. to cover foreign nationals who are not part of the 38 countries under the visa waiver program. Through a series of four diplomatic cables, Secretary of State Rex Tillerson instructed all U.S. Embassies and consular posts to target "populations warranting increased scrutiny" and toughen screening of visa applicants in those groups. Nationals from the six predominantly Muslim countries flagged in Trump's travel ban will be subjected to stricter and higher-level security checks. Tillerson specifically ordered that a "mandatory social media check" be placed on all applicants who have ever been present in territory controlled by the Islamic State.

    Consular discretion

    Consular officers have broad discretion to refuse visas or flag cases for additional screening. "They are afforded wide latitude to take all possible precautions and refuse or send for administrative processing or security clearance cases that might pose security risks, and employers and employees should be aware that this is likely to become standard procedure during their immigration process," explained Jeff Gorsky, senior counsel in BAL's D.C. office and a former Chief of the Legal Advisory Opinion section of the Visa Office in the State Department.

    Moreover, an additional diplomatic cable requires that officers obtain social media and other additional background information on groups identified in each country as possible security risks. While this instruction has been suspended pending Office of Management and Budget (OMB) approval, if implemented it will subject a much greater number of people to additional questioning. The consequence: longer wait times for visa appointments and significantly longer delays for "administrative processing" since security agencies that process visa clearances will need more resources and time to process this new information.

    Your data or detainment: Does your company have a policy?

    The recent changes around the world highlight the intense focus on social media in travel and immigration processes. Because much discretion is given to visa officers when making decisions about who should receive a visa, applicants that may be targeted for heightened screening should be prepared to provide additional information and should plan for the possibility of denials and increased delays in their visa application process. Terrorism and violence around the globe have been used to justify the expansion of government powers to decrypt a person's iPhone at will or the confiscation of passwords for social media accounts during a border entry search.

    As reported by NPR, U.S. Customs and Border Protection agents have ramped up requests for travelers, including U.S. citizens, to hand over their cellphones and passwords. The number has multiplied from about 8,500 in the previous year to 23,877 devices searched in 2016. In one case, Sidd Bikkanavar, an American citizen who was already prescreened under the Global Entry background check, was asked by a CBP officer at Bush Intercontinental Airport in Houston to hand over his cellphone and disclose his password to unlock it. Bikkanavar, a NASA engineer at the Jet Propulsion Laboratory, explained that he was not permitted to provide his password to the NASA-issued phone, but he was forced to adhere to the CPB officer's request despite his protest that he would be violating company policy.

    These measures present a novel issue for courts. Although a unanimous 2014 U.S. Supreme Court decision in Riley v. California affirmed that a search and seizure of an arrested person's cell phone was unconstitutional without a warrant, the Court's decision does not extend to border searches. Through the Privacy Impact Assessment, the U.S. Department of Homeland Security explains that during the immigration process, travelers are subject to an examination to determine alienage, nationality, and admissibility into the United States. During customs inspection, travelers, including U.S. citizens, are subject to border search for merchandise, including electronic devices, without the need for a warrant. "The courts have upheld that border searches of electronic devices are permissible as long as there is reasonable suspicion in some circumstances," explains Roberto Caballero, a partner in BAL's Houston office. "Companies should be aware that border officials are afforded discretion due to their training and experience and that reasonable suspicion is a relatively low standard. BAL recommends that companies have policies in place so employees can cooperate with border officials without compromising confidential company data on company-issued electronic devices."

    In the U.S., in response to constitutional concerns about warrantless border searches, lawmakers have introduced a bill that would require border agents to obtain a warrant before searching data held on electronic devices belonging to U.S. citizens and permanent residents. The proposed legislation would exclude emergency situations, however, and would not apply to foreigners with valid U.S. visas who are entering the country or people who are applying for U.S. visas. We live in an age where information and news travel at lightning speed. While it is common sense to exercise caution when sharing information online, individuals and companies must also be aware that government eyes are looking beyond the face of visa applications and into their online profiles. As this trend becomes the norm, BAL encourages employers to proactively prepare for the potential impact of social media on their employees and mobility programs.

    This post has been provided by Berry Appleman & Leiden (BAL) Corporate Immigration. For more information please contact: Kristi Paulson - Relocation Today or Jennifer Fisher at BAL
    About Berry Appleman & Leiden LLP

    Founded in 1980, Berry Appleman & Leiden (BAL) provides comprehensive global immigration services from seventeen offices across the U.S. and Globe. BAL manages global visa matters and customized application approaches for work permits, business visas, and residence permits in more than 100 countries. With a single cost center for worldwide operations, BAL offers centralized management with regional and local support for the complete spectrum of global immigration matters.

    Source: Berry Appleman & Leiden LLP
    Copyright © 2017 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@balglobal.com

Immigration in the Age of Social Media
  • Social media has revolutionized everything from cultural interactions to politics to business. It has changed company hiring practices and university admission processes—and it is starting to significantly impact immigration and global mobility for individuals and employers.

    Visa officers around the world are starting to search social media sites to substantiate travelers' visa applications when considering whether to grant or deny a visa. Employers and individuals should note that governments are reviewing social media not only for extreme content, but also for inconsistencies on visa applications. For example, visa officers may look into relationship or employment history. Visa officers have full discretion to deny the visa request if what they find through a web search leaves them unsatisfied with the visa applicant's responses.

    Visa applicants beware

    Several cases have illustrated that governments are denying visas on the basis of what they find on social media. In Australia, for example, authorities denied a visa application because the applicant claimed he had converted to Christianity; however, his social media indicated that he was Muslim. A court eventually reversed this particular case, but nonetheless held that social media can be used as evidentiary information in immigration determinations. "This federal court ruling is particularly meaningful for BAL clients and sets precedence for future cases. When assessing applications, any details gathered on social media platforms are indeed information that can be used as a reason to refuse the visa application," explains Martin Russell, Director of BAL's Melbourne office.

    The U.K. reportedly began checking the social media of visa applicants in 2015 to root out anyone who expressed support for extremist groups. Although not adopted as a general policy for deciding all U.K. visa applications, foreign workers should still expect vetting of social media histories and any other online presence that could be deemed as extremist activity. Communications found on social media platforms are also used to prove bona fide relationships on visa applications. "For the last few years, we've seen an increased reliance on social media messages, screenshots of photos and communication between couples to evidence a genuine relationship," said Rekha Simpson, Senior Immigration Manager in BAL London. "Gone are the days of relying on call cards and phone bills to prove the existence of couples courting."

    Individuals are not the only targets of social media vetting, as companies are also being scrutinized for their online presence and the veracity of their applications as sponsors. The Ministry of Manpower (MOM) in Singapore is known to conduct an online search of new or small entities applying to sponsor employment passes. "It's not surprising that companies can find themselves on the receiving end of an online investigation," notes Immigration Manager Susan Donaghy of BAL Singapore. "This highlights how serious MOM is about enforcing laws for fair consideration of local workers and against false applications for the sponsorship of foreign workers in Singapore."

    In Canada, many visa applicants have received rejection letters because of inconsistencies found through an online search. Canadian consular officers assessing permanent visa applications tend to consider any information that is publicly available when making their decision as to whether the relevant application criteria have been met. Under the principal of "procedural fairness," if a consular officer finds something unfavorable online, such as an applicant's social media account showing a number of photos with someone other than the "spouse" listed on the application, the officer may request an interview and give the applicant an opportunity to explain. According to Jennifer Fisher, a Senior Immigration Manager in BAL's Dallas office, "It is becoming more and more common for immigration authorities to investigate
    applicants' various online profiles, and if the officer is unsatisfied with the applicant's response or justification, the rejection letter says something along the lines of, 'An open source search has found an anomaly.'"

    In South Africa, a U.S. pastor was denied a visa and banned by the then Home Affairs Minister, Malusi Gigaba, for extreme anti-gay rhetoric on social media and other platforms. The Department of Home Affairs (DHA) also went through great lengths to identify individuals who were traveling with the pastor and banned the whole group as well. Although U.S. nationals currently enjoy visa exemption status, Gigaba asserted that the South African government may deny entry to those who are deemed as "undesirable persons," especially anyone who is inciting hate speech against a community or group. Under the South African Immigration Act 9 of 2002, "a member of or adherent to an association or organization advocating the practice of racial hatred or social violence" is inadmissible.

    Owen Davies, BAL's Managing Director for Sub-Saharan Africa, says, "BAL will see future cases where content from social media renders travelers inadmissible, and the trend could very well impact business travelers and assignees. What's more, travelers should be aware that individuals, using public online information, could influence how the government determines whether someone is inadmissible."

    'Extreme vetting'

    President Donald Trump has promised "extreme vetting" of Muslim travelers and appears poised to make social media vetting a mandatory process that could encompass all travelers to the U.S. The new U.S. Department of Homeland Security secretary, John Kelly, told a congressional committee in early February that the department may soon demand login information (usernames and passwords) for social media accounts from foreign visa applicants—at least those subject to the controversial travel ban following the executive order on terrorism and immigration; those who do not comply will be denied entry into the U.S. but no clear guidelines have been reported.

    The proposal to vet visa applicants' social media accounts as part of the background checks is a bipartisan issue. Both parties, including Senate Democrats, have also made a similar request to the Department of Homeland Security in the past. The State Department confirmed it already occasionally screens social media accounts as part of the visa-application review process, as does the Department of Homeland Security. However, Kelly's proposal would go beyond accessing publicly available information.

    The trend began in December when visa-waived travelers from the 38 countries in the visa waiver program were prompted to voluntarily provide account names for their social platforms. The request was optional and applied to travelers applying for or renewing their visa waiver status. In March 2017, the Trump administration introduced its first form of extreme vetting" of visa applicants to the U.S. to cover foreign nationals who are not part of the 38 countries under the visa waiver program. Through a series of four diplomatic cables, Secretary of State Rex Tillerson instructed all U.S. Embassies and consular posts to target "populations warranting increased scrutiny" and toughen screening of visa applicants in those groups. Nationals from the six predominantly Muslim countries flagged in Trump's travel ban will be subjected to stricter and higher-level security checks. Tillerson specifically ordered that a "mandatory social media check" be placed on all applicants who have ever been present in territory controlled by the Islamic State.

    Consular discretion

    Consular officers have broad discretion to refuse visas or flag cases for additional screening. "They are afforded wide latitude to take all possible precautions and refuse or send for administrative processing or security clearance cases that might pose security risks, and employers and employees should be aware that this is likely to become standard procedure during their immigration process," explained Jeff Gorsky, senior counsel in BAL's D.C. office and a former Chief of the Legal Advisory Opinion section of the Visa Office in the State Department.

    Moreover, an additional diplomatic cable requires that officers obtain social media and other additional background information on groups identified in each country as possible security risks. While this instruction has been suspended pending Office of Management and Budget (OMB) approval, if implemented it will subject a much greater number of people to additional questioning. The consequence: longer wait times for visa appointments and significantly longer delays for "administrative processing" since security agencies that process visa clearances will need more resources and time to process this new information.

    Your data or detainment: Does your company have a policy?

    The recent changes around the world highlight the intense focus on social media in travel and immigration processes. Because much discretion is given to visa officers when making decisions about who should receive a visa, applicants that may be targeted for heightened screening should be prepared to provide additional information and should plan for the possibility of denials and increased delays in their visa application process. Terrorism and violence around the globe have been used to justify the expansion of government powers to decrypt a person's iPhone at will or the confiscation of passwords for social media accounts during a border entry search.

    As reported by NPR, U.S. Customs and Border Protection agents have ramped up requests for travelers, including U.S. citizens, to hand over their cellphones and passwords. The number has multiplied from about 8,500 in the previous year to 23,877 devices searched in 2016. In one case, Sidd Bikkanavar, an American citizen who was already prescreened under the Global Entry background check, was asked by a CBP officer at Bush Intercontinental Airport in Houston to hand over his cellphone and disclose his password to unlock it. Bikkanavar, a NASA engineer at the Jet Propulsion Laboratory, explained that he was not permitted to provide his password to the NASA-issued phone, but he was forced to adhere to the CPB officer's request despite his protest that he would be violating company policy.

    These measures present a novel issue for courts. Although a unanimous 2014 U.S. Supreme Court decision in Riley v. California affirmed that a search and seizure of an arrested person's cell phone was unconstitutional without a warrant, the Court's decision does not extend to border searches. Through the Privacy Impact Assessment, the U.S. Department of Homeland Security explains that during the immigration process, travelers are subject to an examination to determine alienage, nationality, and admissibility into the United States. During customs inspection, travelers, including U.S. citizens, are subject to border search for merchandise, including electronic devices, without the need for a warrant. "The courts have upheld that border searches of electronic devices are permissible as long as there is reasonable suspicion in some circumstances," explains Roberto Caballero, a partner in BAL's Houston office. "Companies should be aware that border officials are afforded discretion due to their training and experience and that reasonable suspicion is a relatively low standard. BAL recommends that companies have policies in place so employees can cooperate with border officials without compromising confidential company data on company-issued electronic devices."

    In the U.S., in response to constitutional concerns about warrantless border searches, lawmakers have introduced a bill that would require border agents to obtain a warrant before searching data held on electronic devices belonging to U.S. citizens and permanent residents. The proposed legislation would exclude emergency situations, however, and would not apply to foreigners with valid U.S. visas who are entering the country or people who are applying for U.S. visas. We live in an age where information and news travel at lightning speed. While it is common sense to exercise caution when sharing information online, individuals and companies must also be aware that government eyes are looking beyond the face of visa applications and into their online profiles. As this trend becomes the norm, BAL encourages employers to proactively prepare for the potential impact of social media on their employees and mobility programs.

    This post has been provided by Berry Appleman & Leiden (BAL) Corporate Immigration. For more information please contact: Kristi Paulson - Relocation Today or Jennifer Fisher at BAL
    About Berry Appleman & Leiden LLP

    Founded in 1980, Berry Appleman & Leiden (BAL) provides comprehensive global immigration services from seventeen offices across the U.S. and Globe. BAL manages global visa matters and customized application approaches for work permits, business visas, and residence permits in more than 100 countries. With a single cost center for worldwide operations, BAL offers centralized management with regional and local support for the complete spectrum of global immigration matters.

    Source: Berry Appleman & Leiden LLP
    Copyright © 2017 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@balglobal.com