In the aftermath of 9/11, numerous measures designed to enhance security and streamline visa processing were implemented to identify and eliminate vulnerabilities in the visa processing system. The passage of the USA PATRIOT Act in 2001, followed by the Enhanced Border Security and Visa Entry Reform Act (a/k/a the “Border Security Act”) and the Homeland Security Act in 2002, accelerated these efforts by mandating: increased coordination of law enforcement and intelligence agencies; inter-agency data sharing; implementation of an integrated entry and exit control system; the establishment of terrorist lookout committees; foreign student monitoring; biometric collection; mandatory interviewing; and the intensification of security check measures. These procedures created a rigorous framework, making immigration applications at U.S. Embassies and Consulates abroad a daunting exercise. The combination of these statutory provisions, together with the steady stream of other changes—including the introduction of additional security clearance procedures for nationals from predominantly Muslim countries, changes to the automatic revalidation provision, increasing applicability of the Technology Alert List (“TAL”), enforcement of export controls, and a growing scrutiny of visa violations including overstays and unauthorized employment issues, as well as other minor criminal convictions—completely changed the U.S. immigration playing field. Given the current status of how digital information sharing can impact U.S. immigration applications, the following are four basic facts and tips that foreign nationals should know before applying for U.S. immigration benefits:
- The government retains records of your past visa applications; remaining consistent and accurate across various applications is critical. Whenever an individual applies for a U.S. visa or Lawful Permanent Residency status, the government asks the individual to provide significant information about themselves, such as their residential and employment histories, criminal arrest records, educational history, etc. The government retains all of these applications. In years past, an old immigration application might have never come to the attention of an Immigration Officer. However, now that we are in a digital age where records and documents are easily obtainable and searchable, past immigration applications are increasingly being cross-referenced by Immigration Officers when new applications are filed. Discrepancies between a prior and new immigration application can become very problematic. If a visa applicant lists two different answers for one single question, one of those answers must be inaccurate. If a visa applicant has provided inaccurate information, then it could be determined that he or she misrepresented themselves to the government, which could very well lead to the denial of the immigration application and have a long-term impact on future immigration applications.
- The government can Google you! In September 2017, The Department of Homeland Security (“DHS”) issued an update to the Federal Register that updates and expands the government’s capability to use various information sharing programs in researching visa applicants as they go through the visa application process. As news outlets began reporting on the new policy, many foreign nationals currently in the U.S. and applying for U.S. visas abroad were alarmed at the policy’s inclusion of social media accounts and aliases as an area that the government researches during the immigration application process. As DHS officials clarified, “DHS, in its law-enforcement and immigration-process capacity, has and continues to monitor publicly-available social media to protect the homeland.” In other words, DHS has always had the ability to monitor information publicly available on the internet, so the Federal Register update, in many regards, has not drastically changed currently existing government policy and practices. Anecdotal evidence indicates that immigration officers are more frequently searching publicly available information on people and businesses before and during the visa application process. For employment-based visa applicants, a social media account, such as a Facebook or LinkedIn profile should be scrutinized carefully to ensure that all the information provided to the public is accurate and corresponds to information provided to the government on visa application forms. Publicly available accounts and online personas could also bring to light other potential grounds of inadmissibility. For instance, foreign nationals might accidentally publicly display actions that could be considered illegal activities. Of course, individuals should never commit crimes, and it should go without saying that it is not a good idea to publicly post about the commission of crimes if one is committed, but sometimes there may be things that an individual does not consider to be illegal, although the federal government would disagree. The best example that comes to mind would be marijuana-related activities. Foreign nationals should be wary and remember this. Even though marijuana is now legal in many states, it is still an illegal controlled substance on the federal level. The public admission of marijuana use could serve as an immigration ground of inadmissibility, either due to controlled substances law violations (i.e., possession of a controlled substance), or due to public health considerations (i.e., marijuana use could be determined as indicative of habitual drug and alcohol use, in general).
- Governments and government agencies are sharing information more than ever. We live in a digital age, and information is more easily shareable than ever before. Government agencies at the federal level share information about individuals and businesses more than ever before. Local and state law enforcement agencies are able to share and communicate information to the federal government. The U.S. government has information-sharing programs with many foreign allies. Visa applicants should assume that any information about themselves in any single government database can and will be discovered by the U.S. government when a visa application is made. If a visa application does not fully disclose all relevant requested information, it is possible that an immigration officer will make a determination that the visa applicant has misrepresented themselves.
- Visa applicants need to be accurate, consistent, and mindful. The Trump administration’s explicitly stated goal is to reduce and curb lawful immigration to the U.S. While there have not been any new laws or regulations passed to bring such plans to fruition formally, the culture of the federal agencies that execute U.S. immigration programs has changed drastically in recent months. The feeling among practitioners and employers is that DHS and the U.S. Department of State are actively looking for ways to deny applications that in months and years previously would likely have been approved without issue. Increased information sharing and more readily accessible information on the internet are powerful tools that the government can use to find ways to challenge and deny visa applications. Foreign nationals need to be very careful when submitting new U.S. immigration applications. Applicants for visas, permanent residency, and U.S. citizenship should review all past immigration applications that they have a record of in order to make sure that their new applications remain accurate and consistent. If missing some applications, one can file a Freedom of Information Act (FOIA) request in an effort to obtain copies of prior applications. Moreover, immigration applicants need to be very careful with what they put out to the world on internet, and must understand that their online personas can have real world impacts when it comes to immigration applications, and beyond.