Under a new State Department policy, virtually all visa applicants to the United States are now required to submit information about social media accounts they have used in the past five years.

Applicants for immigrant and nonimmigrant visas must use the State Department’s Consular Electronic Application Center (CEAC) to complete online forms for nonimmigrant (DS-160) or immigrant (DS-260) visas. The Department has updated its immigrant and nonimmigrant visa forms to request additional information, including “social media identifiers,” from almost all U.S. applicants.

The new visa application forms list a number of social media platforms and require the applicant to provide any account names they may have had on them over the previous five years.

US State Department Now Requires Visa Applicants to Provide Social Media Information

Applicants have the option of stating they do not use social media. However, failure to provide accurate and truthful responses in a visa application may result in denial of the visa by a consular officer. An individual’s social media footprint will provide consular officers with a snapshot of contacts, associations, habits, and preferences. Consular officers will likely look for inconsistencies and possible security concerns on a broad range of issues.

This action amplifies the measures outlined by the U.S. Department of Homeland Security in its September 2017 proposal calling for the review of social media records by all immigrants. This marks a significant shift from prior policy under the Obama Administration, which asked visa applicants to submit social media records on a voluntary basis.  

In addition to their social media histories, visa applicants are now asked for five years of previously used telephone numbers, email addresses, international travel, and deportation status, as well as whether any family members have been involved in terrorist activities. 

Under the new policy, both temporary visitors and those seeking permanent residence are required to fill out the new forms. Only applicants for certain diplomatic and official visa types will be exempted from this requirement. 

Please consult your GT attorney for additional information and check back here for updates.

For more on social media and immigration policy, click here.

The Department of State (DOS) has noticed for public comment an Information Collection Review – Electronic Application for Immigrant Visa and Alien Registration  that would require immigrants coming to the United States to submit five years of social media history. This effort is viewed by many as a component of “enhanced vetting” on behalf of the Administration following domestic terrorist activities.

Continue Reading DOS Proposes Rule Requiring Review of Social Media for U.S. Immigrant and Non-Immigrant Visa Applicants

We continue to see immigration as a moving target with recent news of four cables issued by Secretary of State Rex Tillerson guiding implementation of increased security protocols and vetting for consular posts around the world. Secretary Tillerson issued initial cables March 10 and 15 in anticipation of the new Travel Ban scheduled to take effect March 16. In response to the federal court action in Hawaii staying implementation of the new Executive Order, he followed these with a third cable March 16 rescinding large portions of his initial communications. Finally Tillerson sent a fourth cable March 17 providing final revised guidance on policy for vetting identified populations and increased social media checks.

The March 17 guidance directs consular officers to identify populations “warranting increased scrutiny” and also implements a “mandatory social media check” for certain individuals based upon time spent in Islamic State-controlled territories. Although we have seen a slight increase in review of social media in recent years, it is less common than one may believe. Consular officers have indicated that they rarely engage in deep screening due the large volume of social media available and the corresponding time it takes to review the information. In addition to new social media directives, the fourth and final cable also leaves in place direction to “develop a list of criteria identifying sets of post applicant populations warranting increased scrutiny.” While a list of specific questions to ask of individuals from identified countries was rescinded with the March 16 and 17 cables so as to comply with existing law, the general directive remains.

With the exception of the two directives above, consular officials have indicated that the guidance provided in the most recent cable may not stray far from current practice, as visa applications already go through a demanding vetting process. That being said, we do anticipate these new directives will increase visa processing times in many countries. We encourage employers and those planning to travel for visa processing purposes to plan accordingly.

On Aug. 9, 2021, U.S. Citizenship and Immigration Services (USCIS) announced that applicants filing for Lawful Permanent Resident (LPR) status are now able to apply for a Social Security number (SSN) or replacement card as part of their Adjustment of Status application process. Accordingly, USCIS released a new, revised version of the Form I-485, Application to Register Permanent Residence or Adjust Status, which incorporates additional questions necessary to apply for an SSN or replacement card. Previously, applicants were required to submit a separate application for an SSN at a Social Security office.

The new version of the Form I-485 is effective immediately and can be used in filings now. However, applicants are permitted to submit either the new Form I-485 or the previous version of Form I-485 until Oct. 13, 2021, after which all applicants will need to submit the new version of the form.

Once the Form I-485 is filed and approved, USCIS will electronically transmit the data to the Social Security Administration. The Social Security Administration will then automatically assign applicants with an original SSN, or issue a replacement card, where requested. The filing fee for Form I-485, presently $1,225.00, remains unchanged following this new development.

This expanded partnership with the Social Security Administration has been introduced by the Biden administration to expedite bureaucratic processes, eliminate extraneous steps for applicants, and enhance collaboration between agencies.

On Aug. 19, 2024, the Department of Homeland Security (DHS) implemented the Keeping Families Together process for certain noncitizen spouses and stepchildren of U.S. citizens to request parole. U.S. Citizenship and Immigration Services (USCIS) will accept requests using the new electronic Form I-131F. As background, parole is an exercise of DHS’ discretionary authority to allow certain noncitizen applicants to be present in the United States on a temporary, case-by-case basis for urgent humanitarian reasons or significant public benefit. “Parole in place” is available only for noncitizens who are present in the United States. Note that if parole is granted and if otherwise eligible, the noncitizen may have an option to apply for adjustment of status without being required to leave the United States.

A U.S. citizen’s noncitizen spouse or stepchild (under the age of 21 and unmarried as of June 17, 2024) are required to meet the certain eligibility criteria to qualify:

  • Be present in the United States without admission or parole;
  • Have been continuously physically present in the United States since at least June 17, 2024, through the date of filing the request;
  • For noncitizen spouses, have a legal marriage with a U.S. citizen on or before June 17, 2024;
  • For noncitizen stepchildren, have a noncitizen parent who entered into a legally valid marriage with a U.S. citizen on or before June 17, 2024, and before stepchild’s 18th birthday;
  • Have no disqualifying criminal history and otherwise not deemed to be a threat to public safety, national security, or border security; and
  • Submit biometrics and undergo required background checks and national security and public safety vetting.

Key takeaways

  • Electronic Filing Only: Starting Aug. 19, Form I-131F can only be filed online. There will be no paper form available for this process. Each requestor, including minors, must file a separate Form I-131F through their own USCIS online account. Helpful information on creating a USCIS online account is available on the How to Create a USCIS Online Account webpage.
  • Avoid Scams: USCIS warns to be cautious of scams and individuals who guarantee outcomes. USCIS reviews all applications on a case-by-cases basis. USCIS encourages individuals to seek legal advice from an attorney admitted to practice law in the United States or accredited representatives working for a Department of Justice-recognized organization. Click here for more information on scams. Some common scams include:
    • Government impersonators: Be mindful of individuals who pretend to be USCIS officials. USCIS warns that the agency never contacts via personal social media accounts.
    • Scam Websites: Make sure the information comes from the official USCIS website: uscis.gov, dhs.gov, or a website affiliated with uscis.gov which has the website address ending with “.gov”.
    • Payment by Phone or Email: USCIS never requests to transfer money to an individual or pay fees via phone or email and does not accept payment for immigration fees through third-party online payment transfer systems or gift cards.
    • Notary Public (Notarios Publicos) and unauthorized practitioners of immigration law: Only an attorney admitted to practice law in the United States or an accredited representative working for a Department of Justice-recognized organization can give legal advice and legal services related to immigration matters. Please visit the USCIS Find Legal Services webpage for the list of recognized organizations and accredited representatives.

To help individuals prepare and file a request for parole in place through the online process, USCIS published a Filing Guide for Form I-131F on the Keeping Families Together webpage.

In the United States, employment discrimination based on national origin and citizenship status is strictly prohibited by the Immigration and Nationality Act (INA). The Department of Justice’s Immigrant and Employee Rights (IER) section plays a crucial role in monitoring and enforcing these regulations. This blog post explores recent allegations of discrimination by a company under investigation by the IER.

There are very limited situations where a “U.S. citizen only” requirement is permissible. See, for example, CIA Requirements – CIA. In circumstances where we absolutely know the position requires U.S. citizenship, job postings could say something like:

“You must be a U.S. citizen to be hired for this position. If you are in the process of becoming a U.S. citizen, you can submit your resume as soon as you are awarded citizenship, but not before.” We do not help individuals apply for U.S. citizenship.

However, the general default is “U.S. person” as described below. If a job requires a security clearance and/or access to CUI data, you might just state that in the job posting. If U.S. persons apply and can’t show the appropriate level of clearance to meet the job requirements, they can be disqualified on that point as opposed to their citizenship/immigration status.

The IER monitors, among other things, employment discrimination based on U.S. citizen only practices. IER recently filed a complaint against a U.S. Company claiming that it improperly and broadly screened U.S. applicants out of the pool of potentially qualified applicants. Civil Rights Division | IER Cases And Matters (justice.gov)

IER claims that Company is engaging in discriminatory hiring practices that disadvantage asylees and refugees seeking employment within the company. IER further accuses the Company of violating the INA by exhibiting bias against individuals based on their citizenship status during the hiring process.

The allegations in the complaint date back from September 2018 to May 2022 and claim that the Company systematically discriminated against asylees and refugees at various stages of the hiring process, including recruitment, screening, and selection. This alleged discrimination resulted in a significantly reduced chance for asylees and refugees to be fairly considered or hired for positions at Company.

The DOJ’s complaint points out several instances where Company’s actions may have discouraged asylees and refugees from applying for jobs. In various public statements, including social media posts and online video presentations, Company officials allegedly made misleading statements that only U.S. citizens and lawful permanent residents could be hired due to export control regulations. Furthermore, the complaint asserts that Company’s online recruiting communications repeatedly conveyed the same notion, thereby creating an environment where qualified asylees and refugees might have been dissuaded from pursuing employment opportunities.

The complaint also outlines Company’s hiring records, which reportedly showed a pattern of rejecting applicants who identified as asylees or refugees due to their citizenship or immigration status. IER is very sensitive to U.S. citizen only requirements and, as stated above, it might be best to just post clear job requirements and not restrict positions beyond the U.S. person requirement. 

For export control purposes, and for IER compliance, the company should consider broadening the recruitment to “U.S. person.” This is because the International Traffic in Arms Regulation (ITAR) (22 C.F.R. Parts 120-130) restricts access to certain controlled technical data and hardware to “U.S. persons,” not just U.S. citizens. 

Specifically, ITAR § 120.62 defines a “U.S. person” as “a person who is a lawful permanent resident as defined by 8 U.S.C. 1101(a)(20) or who is a protected individual as defined by 8 U.S.C. 1324b(a)(3).” For practical purposes, this means any person who is:

  1. A U.S. citizen;
  2. A U.S. permanent resident alien (“green card” holder);
  3. Lawfully admitted to the United States as a refugee under certain provisions of U.S. law; or
  4. Granted asylum in the United States under certain provisions of U.S. law.

Individuals that are not lawfully admitted to the United States or admitted under most visas are not “U.S. persons” for purposes of the ITAR.

All “U.S. persons” may be granted access to technical data that is controlled under the ITAR without preapproval from the U.S. Department of State’s Directorate of Defense Trade Controls (DDTC), which administers the ITAR. 

Brief Overview of Anti-Discrimination Protections for Asylees, Refugees, and Lawful Permanent Residents in Employment

Asylees and refugees, individuals who have sought refuge in the United States due to a legitimate fear of persecution in their home countries, are granted asylum or refugee status upon approval by the U.S. government. This status grants them the right to reside and work indefinitely within the United States, as established in 8 U.S.C. § 1158(c)(l). Similarly, lawful permanent residents, commonly known as “green card” holders, possess the permanent right to live and work in the country under 8 U.S.C. § 1101(a)(20).

Recognizing the importance of preventing discrimination based on citizenship status and national origin, Congress made amendments to the INA in 1986. This amendment, found in 8 U.S.C. § 1324b(a)(l)(B), explicitly prohibits employment discrimination with regard to hiring practices, encompassing citizenship status and national origin.

The scope of this protection extends to a diverse range of individuals. United States citizens, nationals, asylees, refugees, and specific lawful permanent residents—both those who possess these statuses and those who are perceived to hold them—are shielded from hiring discrimination based on citizenship status, except when required to comply with specific laws, regulations, executive orders, government contracts, or determinations by the Attorney General, as outlined in § 1324b(a)(2)(C). This safeguard ensures that employers cannot discourage, unfairly evaluate, or reject job applicants solely due to their citizenship or immigration status. Employers must uphold the principle of providing equal, fair, and impartial evaluation to all applicants, regardless of their citizenship or immigration status.

Anti-discrimination requirements within the United States emphasize the protection of the rights of asylees, refugees, lawful permanent residents, and citizens, ensuring that all individuals are treated equally in employment opportunities, free from bias based on their citizenship or immigration status. These measures extend across all stages of the hiring process, upholding the principles of fairness, impartiality, and equal consideration for all.

On Jan. 10, U.S. Chamber of Commerce President, Tom Donohue, delivered the widely-anticipated State of American Business address in Washington D.C.  Much of his remarks focused on policies and opportunities for continuing economic growth in the United States under the social media hashtag of #Jobs2018.  Mr. Donohue applauded the regulatory reforms and tax reforms of the Trump Administration and stated that our country must continue such common-sense reforms to free American job creators and to reset American jobs for the future.

Continue Reading U.S. Chamber of Commerce President Delivers Annual State of American Business Address

Today, the House Judiciary Committee will consider H.R.5203, the Visa Integrity and Security Act of 2016.  The bill is authored by Representative Randy Forbes of Virginia.

The bill’s purpose is to enhance security procedures for the processing of both immigrant and nonimmigrant visas.  We provide a sectional summary of the bill below.

Section 2 of the bill adds new section 211A to the Immigration and Nationality Act (INA) to require that all petitions and applications filed with the Department of Homeland Security (DHS) or a consular officer contain all required signatures.  In the case of immigrant visa applications, the bill requires that each application shall be signed in the presence of the consular officer, and verified by oath.  Section 211A also specifies that all documentation provided in support of either an immigrant or nonimmigrant visa must be translated into English.  Section 211A requires that no petition or application may be approved until any additional information requested by DHS or a consular officer is provided consistent with any deadline specified in the request.

New section 211B mandates that background checks be conducted for all petitioners or applicants to determine whether an individual poses a “national security threat” or is otherwise ineligible for a visa or admission to the United States.  The background check required in this section “shall include” a review of each individual’s social media activity.  Further, the section requires that for nationals of Iran, Iraq, Libya, Somalia, Syria, Sudan, Yemen, or another country the DHS Secretary “determines appropriate,” a security advisory opinion must be completed prior to issuance.  The section outlines certain exceptions to this requirement.

In the case of petitions and applications based upon a biological relationship, section 211B requires that a genetic test must be obtained proving the biological relationship between petitioner and beneficiary, and that such test must be submitted at the time of application.  The bill specifies that the test shall be obtained at the expense of the petitioner or applicant.  Finally, the section requires that DHS must conduct an in-person interview with every person seeking “any benefit” under the INA, with the exception of a work authorization.  The section permits the Secretary to waive this requirement for individuals 10 years of age or younger.

Section 3 directs DHS to prepare a plan for the use of “advanced analytics” software to detect immigration benefit fraud and potential national security threats.  Section 3 also requires DHS to complete a benefit fraud assessment by fiscal year 2021 for the following visa categories: VAWA self-petitioners, visas issued under section 101(a)(15)(K) (spousal and fiancé), visas issued under section 101(a)(27)(J) (juvenile), visas issued under section 101(a)(15)(U) (U visas for victims of crime or those aiding law enforcement), visas issued under section 101(a)(27)(C) (special immigrant—minister), applications for asylum under section 208, applications for adjustment of status under section 209, and petitions for visa or status under section 201(b).

Section 4 provides authority to the Secretary of State to impose surcharges to support visa security activities.  Section 4 also amends the Homeland Security Act of 2002 to require, within four years following enactment of the bill, the assignment of DHS personnel to “each diplomatic and consular post at which visas are issued.”  The section spells out the requirements for cooperation from the Department of State to implement this requirement.

Section 5 of the bill amends section 291 of the INA concerning the burden of proof upon a petitioner or applicant for an immigration benefit.  The proposed amendment would change the current standard, “to the satisfaction of the consular officer” to the standard that each individual prove eligibility or admissibility by “clear and convincing” evidence.

Finally, Section 6 mandates a report to be conducted by the Government Accountability Office (GAO) to “review and report to Congress on the security of nonimmigrant and immigrant visa application processes.”

GT will monitor the House Judiciary Committee’s consideration of this legislation and will provide updates here in relation to the bill’s progress in the House of Representatives.

In the midst of the digital age, where law firms are increasingly discovering the importance of blogging in their thought leadership and branding efforts, LexBlog issued The Definitive Report on Blogging in the Am Law 200. Greenberg Traurig publishes 16 blogs, the majority of which cover legal developments important to firm clients.

LexblogThe 2015 LexBlog Am Law 200 Blog Benchmark Report ranked Greenberg Traurig’s Inside Business Immigration (www.gtlaw-insidebusinessimmigration.com) as the most visited immigration practice blog and the firm’s EB-5 Insights blog (www.eb5insights.com) was ranked No. 3. overall. Additionally, Greenberg Traurig’s Inside Business Immigration ranked No. 22 among the 962 unique blogs studied. Editors Ian Macdonald, Inside Business Immigration, and Kate Kalmykov, EB-5 Insights, are key factors in driving traffic to the blog sites and continue to bring valuable insights on immigration matters to the subscribers.

The LexBlog research team studied each Am Law 200 firm’s individual web presence and the 962 unique blogs. The blogs were catalogued into topic categories and carefully cross-referenced with their traffic rankings on Alexa.com. According to the report, LexBlog is the leader in helping lawyers and law firms build a powerful online presence through blogging and social media.

To read full press release click here.

This morning the Securities and Exchange Commission (“SEC”) voted 4 to 1 to lift an 80-year-old ban on advertisements of private offerings. The Jumpstart Our Business Startups Act of 2012 (“JOBS Act”) required the SEC to amend Rule 506 of Regulation D to permit general solicitation and advertising in private placements as long as all purchasers are accredited investors. The new rule will take effect 60 days after the SEC publishes it in the Federal Register. However, companies will still have to verify that securities are sold only to accredited investors. 

Issuers and EB-5 projects seeking to raise capital through the sale of securities generally must either register the securities offering with the SEC or rely on an exemption from registration. Most of the exemptions from registration prohibit companies from engaging in general solicitation. The exemption from registration contained in Rule 506 of Regulation D is often used by EB-5 projects.

In an offering of securities that qualifies for the Rule 506 exemption, an EB-5 project may raise an unlimited amount of capital from an unlimited number of “accredited investors” and up to 35 non-accredited investors. For the past 80 years, issuers seeking to raise capital under Rule 506 could not advertise to the general public. With today’s rule change, issuers under Rule 506 will be able to freely advertise to any potential investors.

However, issuers still need to take reasonable steps to verify that investors are accredited. Additionally, the SEC has also voted to issue new rules containing stronger investor protections. These include requiring issuers who take advantage of the new advertisement rules to provide additional information about their securities offerings, provide more information about their investors, and, in addition to other current requirements, be required to file the Form D at least 15 calendar days before engaging in general solicitation for the offering and within 30 days of completing an offering, issuers would be required to update the information contained in the Form D and indicate that the offering has ended. The SEC also adopted rules that would disqualify felons and other bad actors from participating in Rule 506 offerings.

This will fundamentally alter the marketing landscape for EB-5 projects by allowing project companies to solicit investors through social media, press releases, newspapers, billboards and other traditional marketing campaigns. While it remains to be seen whether this will make it easier for EB-5 projects to raise money, the new rule changes will certainly allow EB-5 projects to reach more potential investors.