June 27, 2017

June 26, 2017

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Immigration Fact and Fiction for the U.S. Employer: Extreme Vetting or Just Extreme Record Keeping – What Will the Actual Consequences Be?

On June 1st, the Washington Post reported that “Consular officers at U.S. embassies around the world have started more intensive vetting of some visa applicants, including asking for their social media handles, in an effort to block potential terrorism and other national security threats from entering the country.”

In fact, a supplemental questionnaire to be used at embassies and consulates had been published on May 25th, and this questionnaire asks applicants for passport numbers and travel histories covering the past 15 years; source of funding for trips; residential addresses and employment history; and the names of all spouses, partners and siblings, living or deceased.

So what will the impact be?

Certainly, there has been a new wave of anxiety and fear generated and, as I have already said in many venues, just the idea of “extreme vetting” has scared many away and discouraged students, professionals, academics, researchers, investors and just visitors from considering entry into the United States.

Only a few days ago, on June 8th, a client applying for an employment visa at the U.S. embassy in London received an email asking him “extreme vetting” questions:

—————————————————————-

From: London, Petitions <petitionslondon@state.gov>

Sent: Thursday, 8 June 2017 10:40

To: John Doe

Subject: FW: ADDITIONAL INFORMATION REQUIRED/ADMININSTRATIVE PROCESSING- AMERICAN EMBASSY

Subject: ADDITIONAL INFORMATION REQUIRED- AMERICAN EMBASSY

Embassy of the United States of America

Petition Unit

US Embassy, Box 6

24 Grosvenor Square

London W1K 6AH

Dear John Doe,

Thank you very much for your interest in a non-immigrant visa for travel to the United States. Some additional information is required at this time in order to continue the processing of your recent application. You must reply within seven days of receiving this e-mail. We request that you please reply to this e-mail as thoroughly and specifically as possible with regard to the following items:

  1. Your complete travel history for the last 10-15 years, in chronological order.
  2. The full names of any siblings, children, and/or former spouses/partners *not* already provided in your initial application.
  3. Your residence address history for the last 10-15 years, in chronological order.
  4. All prior passport numbers and country/countries of issuance.
  5. All prior occupation(s), plus a brief description if necessary, for the last 10-15 years.

Your timely reply will help expedite a final determination

——————————————————————

However, upon receipt by the embassy of his prompt and full response on June 9th to all of these questions, he was notified on the same day that his visa was being processed and would be issued to him shortly.

Will this Form of “Extreme Vetting” Delay Visa Processing?

My client described above was obviously a meticulous record keeper and that attention to detail paid off as extreme vetting did him little harm. But others may be truly challenged in assembling the extensive detailed information required to respond to this new questionnaire, whether formal or informal.  That may be the real challenge!

Do you remember clearly, and can you really track down whether you did in fact go on vacation in the summer of 2005, and what the dates were, and the actual source of funding? Did I take three trips in 2009, or was it four? What was the address where I worked in 2008?

I don’t know how many times I’ve heard complaints from busy professionals who are filling out an application for naturalization [Form N-400] who are challenged to identify all their entries and exits in and out of the United States just for the last five years!

Once in Embassy Hands – Quicker Adjudication?

One can speculate that having a full 15-year record in front of the adjudicator, in most instances might even serve to speed up the process of visa issuance, particularly if the family description and pattern of travel are innocuous. I would speculate further that even in those cases where background checks are initiated as a result of this 15-year record, it would be easier to complete them, because of the additional information made available.  So perhaps, extreme vetting will actually make things more efficient and visa adjudication quicker.

I think it should, but I am not optimistic. After all, at the end of the day, it is still the judgment of the officer as to which cases to defer to additional background checks, and in an environment where the criteria are unknown and there is a mandate to be more enforcement-oriented, it is hard to believe that there will not be an uptick of delayed cases.

Social Media Handles

It is the request for social media handles, which is the more troubling concern, a request most interestingly, not included in the email sent to my client on June 5th.  This seems certainly to be a stark and unnecessary invasion of privacy, and it is unclear as to the consequences for visa processing if an individual chooses not to disclose.

In our blog on CBP searches of electronic devices, we referenced Riley v. California, 134 S.Ct. 2473 (2014)  where the Court indicated that smart phones are “such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude that they were an important feature of human autonomy.” The Court found that given how cell phones contained in many instances the digital sum total of one’s “papers and effects,” police searches would be unreasonable unless a warrant had been obtained.

The court was without a doubt thinking of the access to email and social media that the smartphone provided.

How the embassies, consulates and the Department of Homeland Security will handle access to social media will be the hot issue in days to come.

© 2017 Proskauer Rose LLP.

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About this Author

David Grunblatt, Proskauer Law Firm, Immigration Attorney
Partner

David Grunblatt is head of the Immigration & Nationality Group in the Labor & Employment Law Department, resident in the Newark office.

973-274-6021