Social Media Alert - New Regulation Requires Disclosure of Social Media Information on Most Visa Applications
As of last summer, the State Department has amended the DS-160 and DS-260 application forms and now requires that most visa applicants provide information associated with their online social media accounts, including the types of online providers or platforms, applications and websites used to collaborate, share information and interact with others.
This new regulation follows a State Department publication from 2018, in which a notice was published of the proposed information-collection requirement.
As a result of this new requirement, DS-160 and DS-260 visa application will now include sections that require the applicant to provide any "identifiers" used by the applicant across multiple social media platforms during the last five years leading up to the application date. In addition to that, applicants will have the option to provide information about social media account outside of what they have already listed.
This new information requested includes but is not necessarily limited to social media and information sharing cites such as Facebook, Instagram, and Twitter. For now, the State Department is only requesting the account names of the relevant accounts to be disclosed, which allows the government to access any information that has been shared publically through those accounts by the applicant.
It is important that all current and future DS-160 and DS-260 applicants be aware of these new changes and have all of the necessary information available upon request. Even if a submitted application is already pending, there is a possibility that the information could be requested either through a consular interview or through an RFE requesting the information be submitted, so applicants need to be prepared to discuss and disclose such information as required by the State Department.
If you own a business and/or earn wages in the United States, you know that, generally, you have a withholding obligation from such earnings for Social Security and Medicare taxes. For foreign nationals working or earning income in the U.S., such withholding may present a bit of a conundrum – as those individuals may also have similar obligations in their home countries.
As such, one could conceivably have multiple obligations for government retirement or similar programs from a single set of wages or earnings in one country. Naturally, this type of double taxation seems onerous and cumbersome.
However, there are a number of ways a foreign national working in the U.S. may avoid this problem. For example, under certain visas (F-1, J-1, and certain H-2 and H-2A visas, just to name a few), visa holders may have a general exemption from Social Security/Medicare withholding.
For foreign nationals working in the U.S. on visas such as E-visas or L-visas, while there is no general exemption from Social Security withholding, and therefore such employees are generally responsible for Social Security and Medicare withholding, each should be aware that the U.S. has agreements with a number of countries that resolves this problem by mandating which country should receive relevant retirement benefits.
These agreements, called Totalization Agreements, specify the circumstances under which Social Security or government retirement program benefits should be directed to one country, and not the other. Such agreements exist between the U.S. and Australia, Austria, Belgium, Brazil, Canada, Denmark, France, Germany, Ireland, Italy, Japan, the Netherlands, Norway, Switzerland, and the United Kingdom, just to name a few.
To briefly examine the Totalization Agreement between the U.S. and Germany, generally, the key factor is the length of time the foreign national is sent to work in the U.S. If less than five years, generally, retirement benefits should be remitted to the German system, and one is exempt from doing the same to the U.S. Social Security program. If sent to work in the U.S. for more than five years, Social Security withholding into the U.S. system will likely occur in place of remittance to the German retirement system. Naturally, certain facts and circumstances may change the outcome, which emphasizes the importance of consulting a tax professional when relocating to the U.S. for work or otherwise working in the U.S. without citizenship or permanent residence status.
Also, quite critically, a “certificate of coverage” must be obtained from the Social Security Administration to make use of the Totalization Agreement between the U.S. and the relevant country; otherwise, the default withholding rules for foreign nationals working in the U.S. may apply, meaning the worker may have obligations to the U.S. Social System system and the retirement system in his or her home country.
Andrew Howe, Attorney at BridgehouseLaw LLP
Traditionally, border agents and U.S. government officials have enjoyed broad authority to conduct searches and investigations of travelers coming into the U.S., actions which are primarily couched under two goals: (1) to search for and discover contraband entering the U.S.; and (2) to prevent the admission and entrance of individuals ineligible for admission into the U.S.
In recent years, border agents have extended their search authority to digital devices. At border inspections, U.S. citizens, residents, and foreign travelers alike have been asked, at times, to allow the inspection of phones, computers, and other devices. This includes, in some cases, the confiscation and “advanced” search of devices, which may involve searching, copying, deleting, and/or noting the contents contained within such devices. Along similar lines, visa applicants are now required to provide social media account information when applying for U.S. visas.
Naturally, such actions are quite alarming – we all have untold quantities of information contained on digital devices and within the digital realm that would normally be subject to the highest levels of privacy: location information, internet search history, text and email message contents, photographs, etc. Additionally, substantial First Amendment concerns arise where government officials have the ability to view and document expressive content such as social media posts, one’s choices related to social media associations or “groups”, private photographs that have religious significance, and journalists’ research.
In several recent court cases, plaintiffs seek to limit the scope of such inspections citing many of the concerns noted above. In Alasaad v. Nielsen, a case from the federal district court in Massachusetts, the district court recently joined several U.S. circuit courts of appeals in holding that searches beyond cursory inspection of digital devices are in violation of the Fourth Amendment where “reasonable suspicion” of the presence of contraband or relevant commission of a crime does not exist. This means that border agents must have some factual basis for conducting more than a cursory search of a digital device at the border. Under the Alasaad holding, being asked to demonstrate one’s computer actually operates and powers on would be a cursory search – and one that makes a lot of practical sense from a safety perspective. However, being asked to power on one’s computer and then allow agents to scroll through files and review content would likely require reasonable suspicion on the part of the border agents.
Importantly, the Alasaad holding appears limited to U.S. citizens and lawful permanent residents, though the district court did note that it saw little evidence to suggest such broad digital inspections furthered any relevant safety or law enforcement purposes during border inspections of foreigners.
Moreover, in another recent court case, DOC Society v. Pompeo, a case filed in the U.S. District Court for the District of Columbia, the plaintiffs are seeking to invalidate a new requirement, begun on May 31, 2019, that visa applicants submit social media account information during the application process. Citing First Amendment and other concerns, the plaintiffs have asked that the district court find the social media requirement in violation of the U.S. Constitution and of procedural requirements. Importantly, the plaintiffs also requested that the U.S. government be prevented from storing and/or using information gained from use of the social media account information. As this case was filed in December 2019, no decision has yet been rendered. However, this case is certainly worth following for any current or potential visa applicant.
Lastly, given the implications involved, these cases and similar cases seem destined for the U.S. Supreme Court in the near future.
Andrew Howe, Attorney at BridgehouseLaw LLP
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