SOCIAL MEDIA SCREENING IN THE EB-5 IMMIGRATION PROCESS— BY NATALIA POLUKHTIN
The investor’ s social media profile should be preemptively evaluated by the EB-5 attorney for geopolitical sensitivity
“ Enter information associated with your online presence, including the types of online providers / platforms, applications, and websites that you use to collaborate, share information, and interact with others. List the username, handle, screen-name, or other identifiers associated with your social media profile.( You do not need to list accounts designed for use by multiple users within a business or other organization.)”
Remarkably, the wording of the instructions directing the applicants to disclose online persona used to“ collaborate, share information, and interact with others” indicate that the subject of the scrutiny is not only of the personal profiles of the applicant, but also the entire digital ecosystem of the applicants, potentially exposing other individuals with whom applicants interact within chats, forums, discussion groups, and even in the commentary section of the online media.
This data collection initiative is currently being expanded to include forms adjudicated by the Department of Homeland Security( DHS). The notice published in the Federal Register announced the intent to incorporate the inquiry into social media use in several forms, including those highly relevant to the EB5 program:
· Form I-485( Application for Adjustment of Status),
· Form N400( Application for Naturalization)
· Form I-829( Petition by Investor to Remove Condition).
The policy statement in the notice claims that this data collection“ is necessary for the enhanced identity verification, vetting, and national security screening, and inspection conducted by USCIS.” According to DHS, the data collected may be analyzed in conjunction with other records, intelligence sources, and open-source information to inform adjudicative decisions.
The USCIS announced a policy of prescreening social media profiles of applicants for“ antisemitic activity on social media and the physical harassment of Jewish individuals as grounds for denying immigration benefit requests,” possibly indicating that all social media activity might be subject to scrutiny in the immigration process. While national security remains the publicly stated rationale, the practical implications for certain visa categories, particularly those involving complex financial and biographical profiles such as EB-5, are nuanced.
SOCIAL MEDIA PRESENCE AND EB-5 ELIGIBILITY EB-5 adjudications are usually multifaceted, and screening of investors’ social media profiles may implicate the process in many aspects. There is no regulatory requirement that the United States Citizenship and Immigration Services( USCIS) or the Department of State( DOS) inform applicants how social media content is interpreted or to what extent it influences the adjudication outcome. Meanwhile, social media inherently lacks the contextual safeguards of sworn testimony or certified documentation. Humor, ambiguous statements, articulated emotions, translation errors, and third-party tags can all create misleading impressions, making relevant advice to the investor at the initial stages of representation prudent, if not mandatory.
First, the lifestyle indicators and representations may reveal discrepancies in professional or business status claims. A lavish lifestyle not fully consistent with the claimed source of capital may raise concerns about the possibility of unreported income. Likewise, the manifestation of passive income from investment or royalties, or a high social status, may contradict what is represented in social media, professional career, and full-time employment. Though these discrepancies are not necessarily fatal to the success of the EB-5 case, they may increase the evidentiary burden on the investor attempting to address them in response to the Request for Evidence( RFE) or
Notice of Intent to Deny( NOID).
Second, the investor’ s social media profile should be preemptively evaluated by the EB-5 attorney for geopolitical sensitivity. An investor sharing an article critical of U. S. foreign policy or endorsing political opponents may potentially raise flags under the Immigration and Nationality Act( INA) § 212( a)( 3) that provides for inadmissibility for“ unlawful overthrow of U. S. government” and“ terrorist activity.” For investors with citizenship of the countries identified by Executive Orders or policies as related to or harboring terrorist organizations, the entire case may be compromised by tagging a“ wrong” person or location.
Finally, at the stage of removal of the condition on a permanent residence, photos tagged in a foreign country for extended periods may suggest the investor has abandoned U. S. residency. This consideration may be even more problematic if the social media content indicates professional or entrepreneurial activities of the investor abroad.
ETHICAL CONSIDERATIONS IN ADVISING IMMIGRANT INVESTORS The integration of social media into immigration adjudications has significantly expanded the scope of an attorney’ s professional responsibilities. For immigration counsel, and particularly those advising EB-5 investors, the ethical dimensions of this development cannot be overstated.
The ABA Model Rules of Professional Conduct and relevant provisions of the State rules of ethics provide a framework for understanding these obligations. For instance,“ Duty of Competence,” as articulated in Rule 1.1, now extends beyond knowledge of statutes, regulations, and precedent to encompass the ability to anticipate and address the risks associated with clients’ digital footprints. An attorney who fails to predict how a client’ s online presence may be interpreted in the adjudicative process risks providing incomplete or ineffective representation.
“ Communication” under Rule 1.4 also assumes the new angle in this context. Clear and candid conversations about how online statements or imagery may be understood
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