Awaiting Publication of DHS’ Final Rule on Collection of Social Media Information

On September 4, 2019, the Department of Homeland Security (“DHS”) published a proposed rule to expand the agency’s collection of social media information for purposes of identity verification, vetting and national security screening and inspection, in furtherance of the Trump Administration’s Executive Order 13780, “Protecting the Nation from Foreign Terrorist Entry into the United States”. Under the proposed rule, the Customs and Border Protection (CBP) and the U.S. Citizenship and Immigration Services (“USCIS”) will collect applicants’ social media identifiers and associated publicly available social media platforms used by the applicants during the past five years on certain forms and applications. Examples of the social media platforms that will be featured on the DHS forms will include Facebook, Twitter, Instagram, LinkedIn, Reddit, Sina Weibo, Tencent Weibo, Vine, and Youtube. The proposed rule does not require applicants to provide their passwords.


CBP

  • ESTA (Electronic System for Travel Authorization), for Visa Waiver Program travelers

  • EVUS (Electronic Visa Update System), for travelers with a 10-year B1/B2, B1 or B2 visa from Peoples Republic of China passport

  • I-94W Record of admission for Visa Waiver Program entrants in WB and WT status

USCIS

  • Form N-400, Application for Naturalization

  • Form I-131, Application for Travel Document

  • Form I-192, Application for Advance Permission to Enter as a Nonimmigrant

  • Form I-485, Application to Register Permanent Residence or Adjust Status

  • Form I-589, Application for Asylum and for Withholding of Removal

  • Form I-590, Registration for Classification as Refugee

  • Form I-730, Refugee/Asylee Relative Petition

  • Form I-751, Petition to Remove Conditions on Residence

  • Form I-829, Petition by Entrepreneur to Remove Conditions on Permanent Resident Status


Per the proposed rule, “Although such collection of social media user identifications is `mandatory' to complete the DHS forms, it is not required to obtain or retain a benefit.” For CBP cases, applicants will be unable to submit the online ESTA and EVUS applications if they do not provide a response to the mandatory social media field. However, the applicants may proceed if they answer “None” or “Other.” For USCIS cases, the applications will not be rejected based solely on the lack of response. In cases where the social media information is not provided, both CBP and USCIS will continue to adjudicate the forms / applications, but the proposed rule warns that failure to provide the requested data may either delay or make it impossible for the agencies to determine an applicant’s eligibility for the requested benefit. The Department of State has already been collecting social media identifiers and associated social media platforms for nonimmigrant visa applicants on its online application, Form DS-160 since June 2019. It is unknown at this time when the DHS’ Final Rule will be published or will be implemented. The 60-day Notice and Comment period closed on November 4th, during which 80 comments were submitted by the general public. At this stage in the rulemaking process, DHS will consider the public feedback, conduct further research, and make changes where appropriate, and will then publish a final rule in the Federal Register with a specific date on which the rule becomes enforceable. We will continue to monitor the proposed rule and will provide an update when more information becomes available.

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