Social Media Screening in the EB-5 Immigration Process

By Natalia Polukhtin 

Recently, the U.S. immigration landscape has undergone a profound transformation in its approach to applicant vetting. The introduction of mandatory disclosure of social media identifiers on visa and immigration benefit applications marked a decisive policy shift, extending the scope of government scrutiny beyond traditional documentary evidence to the digital footprints of applicants.  

Social media content, when interpreted without cultural, linguistic, or contextual understanding, can now pose significant risks to an applicant’s eligibility for immigration benefits.  

For EB-5 investors, who already navigate the challenges of source-of-funds documentation and heightened fraud scrutiny, the addition of digital footprint analysis can be determinative in ways that are not transparent or predictable. Thus, attorneys’ readiness to address the issues produced by social media scrutiny requires legal skills and the ability to advise the client on social media usage ethically. 

WHEN AND WHAT SHOULD BE DISCLOSED?

In 2019, following the publication in the Federal Register, as a part of the implementation of “uniform screening and vetting standards for visa applications,” the social media identifier question was formally introduced into the nonimmigrant visa application form DS-160 and the immigrant visa application form DS-260. In the current version of this visa form, the applicants are required to answer the following question:  

“Do you have a social media presence? If yes, provide the identifiers (user names, handles, or screen names) you have used on the following platforms during the last five years.” 

Upon providing an affirmative answer, applicants must choose from a drop-down list of specific social media platforms (e.g., Facebook, Twitter/X, Instagram, LinkedIn, YouTube, Reddit, Weibo, etc.) or select “Other” to manually add additional platforms. 

Additionally, the Help section on the visa application provides this guidance:  

“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, screenname, 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 by adjudicators, particularly when cultural differences or linguistic subtleties might cause misinterpretation, are now very important from the commencement of representation. Attorneys who neglect this responsibility may leave their clients vulnerable to surprise or adverse inference during adjudication. Additionally, the attorney’s role in collecting and analyzing such material must always be guided by the principle of protecting client privacy, directed by the duty of confidentiality. 

Perhaps most delicate is the boundary established by Rule 4.1, which prohibits lawyers from making false statements of material fact or law to third persons, and by extension from facilitating client misrepresentation. While it is appropriate to guide a client in understanding the implications of their online presence, counsel must refrain from encouraging the deletion of truthful, if inconvenient, information or, even worse, creating a new online “persona” just for the purpose of sterilizing the social media profile.

The ethical line is drawn between prudent preparation and coaching those shades into dishonesty. Moreover, advising clients to adjust privacy settings to restrict access to the profile may appear prudent at a glance; however, recent experiences of the practitioners indicate that “private” profiles may lead USCIS and DoS to draw an adverse inference and significantly delay adjudication. The essence of ethical practice in this area is to prepare clients thoroughly while scrupulously avoiding actions that would distort the truth. 

BEST PRACTICES FOR IMMIGRATION COUNSEL 

Given these ethical parameters, several best practices emerge for EB-5 practitioners navigating the social media dimension of their clients’ cases. A social media review should not exist apart from other aspects of EB-5 case preparation; instead, it should be integrated into the broader analysis of source-of-funds documentation.  

A prudent approach begins with a social media audit conducted at the initial stage of representation. By examining publicly available profiles, attorneys can identify potential issues before they become obstacles during adjudication.

When potentially problematic material arises, the counsel must contextualize it, explaining in evidentiary submissions the cultural, linguistic, or situational nuances that might otherwise lead to misinterpretation. This proactive contextualization allows adjudicators to understand the material in its proper light rather than through assumptions that may be unfounded. 

Attorneys should also advise clients about the importance of maintaining consistent, professional online profiles. This practice ensures that clients are aware of the public nature of their digital presence and can avoid inadvertent contradictions between their filings and their online activity. A lifestyle portrayed online that is inconsistent with the financial history submitted in support of an investment can undermine the credibility of the entire petition. By aligning the two, counsel ensures that the narrative presented to USCIS is coherent and defensible. 

Finally, attorneys must prepare clients for the possibility that social media content may be raised during visa or adjustment of status interviews. A well-prepared client who understands how to explain a particular post, photograph, or comment in context is less likely to be unsettled or contradicted by questioning.  

A BALANCING ACT 

For EB-5 practitioners, the task of providing advocacy consistent with digital risk management is particularly complex, as large financial stakes and intricate documentation requirements converge with the scrutiny of a client’s personal and public identity. Careful, ethical lawyering makes the difference at the intersection of the economic objectives of the EB-5 program and national security imperatives. In an era where one post can determine the outcome of a multi-million-dollar case, the role of counsel is more critical than ever. 

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