Rachel Perez

Immigration Planning andCompliance

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Big Brother is Watching You: Feds Now VettingForeign Workers Via Social Media December 5, 2017

Employers may need to start “following” the information their foreignnational workers share on Twitter or Facebook, as the Department ofHomeland Security is turning social media into the federalgovernment's latest surveillance tool. In October, the Modified PrivacyAct System of Records was quietly implemented placing Facebooklikes, interests, friends, Instagram photographs, Twitter tweets, workinformation shared on LinkedIn and even Tinder activity into agencyofficials’ new dossiers on immigrants—information gathered directlyfrom social-media profiles. The new surveillance program authorizesHomeland Security to collect and store “social-media handles, aliases,associated identifiable information and search results” in thepermanent immigration files and official government records of allforeign nationals entering the United States, including permanentresidents and naturalized citizens.

Immigration officials will collect such data from “publicly availableinformation obtained from the internet, public records, publicinstitutions, interviewees, commercial data providers”—part of whatagency officials contend will provide more effective screening offoreign persons coming into the United States. The fact thatinformation found on Facebook and other social-media networks maynot be accurate doesn't mean Homeland Security will be precludedfrom using it as a basis for excluding people from the United States.

Privacy advocates fear the regulation could extend governmentsurveillance to U.S. citizens who communicate over social media withimmigrants, which can include employers. Considering the breadth ofsocial media forums available online, coupled with the government’sinitiative to conduct “more immigrant actions in an electronicenvironment,” employers should be aware that government officialswill be looking to ensure that data and background informationsubmitted by employers in support of workers' visa petitions matchesthe information found on Google, Facebook, or other publicly availablesocial media networks. Employers should also be cautious ofcommunications over social media prior to hire.

Homeland Security published the new rule in the Federal Register onthe heels of reports that Customs and Border Protection officials wereenforcing enhanced electronic device searches of internationaltravelers entering the United States. In the first six months of 2017,CBP announced it had “searched the electronic devices of 14,993arriving international travelers […] of the approximately 189.6 milliontravelers arriving to the United States each day.” In a press releaseissued earlier this year, CBP claimed the increase of electronicsurveillance measures at the border had led to “evidence helpful in

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combating terrorist activity, child pornography, violations of exportcontrols, intellectual property rights violations, and visa fraud.” TheCBP’s use of warrantless electronic device searches at the border hasbeen repeatedly upheld on statutory and constitutional grounds. Moreinformation on electronic device searches at the border is availablehere.

Despite the statistics, many commentators view social mediasurveillance as an unnecessary intrusion that would do little to wanenational security concerns. The upshot of the new surveillanceprogram means U.S. employers who depend on foreign labor shouldexpect the government to actively search, follow and view theFacebook, LinkedIn, Instagram and other social media profilesconnected to foreign workers sponsored for employmentauthorization in the U.S. Employers should work closely withexperienced immigration counsel and foreign nationals to ensure thatemployment history, occupational titles and job duties posted onemployees’ social media accounts are consistent with employmentinformation submitted to immigration agency officials.

This information is intended to inform clients and friends about legaldevelopments, including recent decisions of various courts andadministrative bodies. This should not be construed as legal advice ora legal opinion, and readers should not act upon the informationcontained in this email without seeking the advice of legal counsel.