Is Immigration watching?

by Maxine D. Bayley

Most users of social media sites probably think only their Facebook friends view what they post. But not everyone uses social media to share family photos or helpful hints about where to get the best haircut. Government agents also use these sites to carry out investigations. Proof of this is a May 2008 policy memorandum from the Office of Fraud Detection and National Security (FDNS) at the U.S. Citizenship and Immigration Service (USCIS).

The document was obtained in 2009 by the Electronic Frontier Foundation (EFF) and the Samuelson Law, Technology, and Public Policy Clinic at UC Berkeley through the Freedom of Information Act. Both organizations had sued several government agencies for refusing to disclose their policies on using social networking sites for investigations, data collection, and surveillance.

The released memo, titled “Social Networking Sites and Their Importance to FDNS,” shows that, alarmingly, the immigration service is monitoring social media sites to investigate people who apply for immigration benefits. An agency within the federal Department of Homeland Security, the USCIS took over immigration service functions in 2003 and now processes applications for permanent residence (“green cards”) and naturalization. The FDNS is its arm for investigating fraud in immigration applications.

Rooting out fraud in immigration applications is undoubtedly in the best interest of national security, but it is disturbing to note the immigration service’s simplistic understanding of how people really use social media.

Most disconcertingly, the memo does not indicate the level of suspicion required before an investigation of a person through social media is to be undertaken. No behavioral parameters are defined, leaving the impression that any USCIS officer can sit at a computer and freely conduct surveillance of any applicant’s Facebook or MySpace pages to root out “fraud.” In addition to those sites, the memo lists several others including Badoo (popular in Europe), MIGente (for Latinos), and Muxlim (for Muslims).

The memo even describes, step by step, how an officer can ask to become a “friend” of a user – thereby gaining access to otherwise restricted content – and adds that any information found can be used as evidence against the applicant. The memo states that “narcissistic tendencies in many people fuel a need to have a large group of ‘friends’ link to their pages,” and that site users “accept cyber-friends they don’t even know.”

According to the memo, this practice “provides an excellent vantage point for FDNS to observe the daily life of beneficiaries and petitioners who are suspected of fraudulent activities. … This social networking gives FDNS an opportunity … to see if petitioners and beneficiaries are in a valid relationship or are attempting to deceive” the USCIS.

“Once a user posts online, they [sic] create a public record and timeline of their activities,” the memo assures its officers. In essence, monitoring applicants’ posts in Facebook and other similar sites is like “doing an unannounced cyber ‘site-visit’ on petitioners and beneficiaries.”

The potential illegality and debatable ethics of FDNS surveillance are beyond the scope of this article, but immigration attorneys must be aware of the monitoring in order to advise their clients effectively. (For more on ethics and social media, see the MCLE (“What Are ‘Friends’ For?”)

For example, suppose Bob, a U.S. citizen, recently married “Helen,” a native of Greece who came to the United States several years ago as a visitor but never left. Bob files a visa petition for Helen so that she can be granted permanent residency. But long before Bob met Helen, his kids from a previous marriage set up a Facebook page for him so they could share family photos. Since they also wanted him to find a new love, they made sure to list Bob’s marital status as “single,” posting dashing photos of Bob from his younger dating days. Bob forgot all about updating his Facebook page when he met Helen.

Now that they’re about to have an interview at the immigration office regarding Bob’s petition for Helen’s green card, their lawyer must give them specific advice. After performing a due diligence inquiry into the veracity of Bob and Helen’s marriage, the lawyer must warn them about the surveillance of their social media sites. And since it’s not clear what triggers a fraud investigation, the couple must also be warned that USCIS may be watching their online habits. To investigating officers, Bob’s Facebook page now suggests he’s a single ladies’ man rather than the devoted husband that he is. The lawyer must advise Bob and Helen to update their Web pages and make sure the information is accurate and up to date. In fact, if they’re not really using these social media sites, it may be advisable to close their accounts. Clients should not post anything on these sites that they wouldn’t want to have to explain to an immigration officer.

The FDNS memorandum also has implications for employers who sponsor workers for nonimmigrant status, such as through H-1B or L-1 visas. The EFF complained recently that the USCIS still has not fully disclosed its monitoring practices, so it’s possible that the service may also be monitoring the social media activity of petitioners and the beneficiaries of these employment-based petitions. It is critically important for businesses and employees to understand this possibility, especially in light of the current environment of stepped-up worksite enforcement activities by immigration authorities, including I-9 investigations and the FDNS’s unannounced work site visits.

Of particular concern is the immigration service’s heavy scrutiny of the employer-employee relationship, along with the agency’s acute suspicion of employees who work at off-site locations. Donald Neufeld, associate director of service center operations for the USCIS, issued a memorandum in January 2010 that actually added another level of scrutiny to H-1B petitions when the employee in question will work at a third-party site.

For example, imagine that Shelley, an H-1B visa holder, is directly employed by Company A but assigned to work on a project for Company A’s client, Company B, at company B’s site. Shelley posts on her LinkedIn page that she is working at Company B, even though she is supervised and paid by Company A. If social media sites such as LinkedIn are being monitored, such a post could trigger a fraud investigation, as this information appears to contradict Shelley’s H-1B information. The immigration service could use this information to revoke the H-1B visa that was issued on Shelley’s behalf. Employees must be cautioned to make sure their employment information on social media websites is accurate and consistent with petitions they filed with USCIS.

Maxine D. Bayley is an associate in the San Francisco office of Duane Morris, where she focuses on immigration law. This article was originally posted on the daily journal publication California Lawyer.

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