Implications of New Social Media Question on DS-160 and DS-260 Applications

On May 30, 2019, a new question was added to Forms DS-160 and DS-260, requiring the disclosure of visa applicants' social media identifiers for all accounts used within the last five years. The question, which appears on the forms completed by all nonimmigrant and immigrant visa applicants, presents new and potentially adverse implications for individuals applying for either nonimmigrant or immigrant visas.

This is not the first time we have seen of the U.S. government's efforts to increase the scrutiny imposed on individuals seeking entry to the United States.

Back in March of 2017, President Trump issued a Presidential Memorandum to the Secretary of State, the Secretary of Homeland Security and the Attorney General, in which he set out to implement heightened screening and vetting protocols of visa applications. A year later, the U.S. Department of State published notices in the Federal Register requesting public comment on the proposal to modify Forms DS-160 and DS-260. The proposed amendment included the addition of a question that would require the disclosure of all of the visa applicant's social media handles used during the five years preceding the date of the application.

Prior to the formal amendment to the DS-160 and DS-260 applications, the discretionary collection of social media identifiers by consular officers was permitted when it was necessary to confirm a visa applicant's identity or in cases where additional scrutiny was warranted in connection with terrorism or national security concerns. In 2017, U.S. Customs and Border Protection added a request for the disclosure of social media handles as part of the Electronic System for Travel Authorization (ESTA) screening process for Visa Waiver Visitors applying for admission to the United States.

This past month, the 2018 proposal requiring the disclosure of visa applicants' social media identifiers was formally implemented and now appears on all DS-160 and DS-260 applications.

The added question appears under a section called "Social Media," which is part of the "Address and Phone Information Page." The help guidance directs visa applicants to provide information associated with their online presence, including the types of online providers/platforms, applications and websites used to collaborate, share information and interact with others. It asks visa applicants to list the username, handle, screen name or other identifiers associated with the individual's social media profile.

According to the U.S. Department of State, the information collected will be used for "identity resolution and vetting purposes based on statutory visa eligibility standards." In effect, the information gathered will be used to validate the identity of the visa applicant and verify the information presented in the visa application to ascertain the individual's eligibility. Consular officers have been instructed to follow Department of State guidelines in assessing an individual's social media presence. While the amendment will allow the U.S. Department of State's consular officers to more rigorously evaluate security concerns and related visa ineligibilities, it grants consular officers access to information that may be mistaken and used against an individual during the processing of their visa applications.

Given the amount of information shared on social media sites and the potential for misinterpretation, visa applicants should exercise good judgment and be mindful of the fact that the Department of State may access and review social media profiles and misunderstand posted content. In today's world, social media profiles are increasingly being used as e-diaries, providing a day-to-day detail of a person's life. Users do not often reflect on the potential implications a casual post may have on their application for admission to the United States. In light of these recent changes to the DS-160 and DS-260 applications, visa applicants should consider the possibility that their activities on social media could be easily misconstrued and held against them during the processing of their visa applications.

Visa applicants should ensure their professional profiles have accurate and updated employment history information to avoid inconsistencies between their online accounts and visa application. In answering the DS-160 and DS-260 applications, individuals should be forthcoming with their social media presence, as failure to fully disclose information on a visa application could be considered a misrepresentation that could result in a substantial delay, denial of their visa application and quite possibly, the denial of subsequent immigration applications. Note, a misrepresentation that is deemed material could result in a fraud charge, requiring a waiver to overcome.

Given the potential implications of this new question, visa applicants should contact an immigration attorney for guidance in completing the recently amended DS-160 and DS-260 applications.