New visa rules require social media reviews. What it means for free speech

Applicants for certain visas will have their online presence reviewed as part of a new State Department policy that went into effect on Dec. 15. The policy expands previous online review requirements, which applied to foreign students and exchange visitors, to include all H-1B applicants, who work in specialty occupations and are seeking temporary entry to the United States, as well as their dependents. The State Department announced the new policy in early December, saying applicants are “instructed to adjust the privacy settings on all of their social media profiles to ‘public’” to facilitate the review. “The Trump Administration is focused on protecting our nation and our citizens by upholding the highest standards of national security and public safety through our visa process,” a State Department spokesperson told USA TODAY. “A U.S. visa is a privilege, not a right.” The change comes months after President Donald Trump introduced a $100,000 annual application fee for H-1B visas. Courts have historically affirmed that First Amendment rights are applicable to people lawfully within U.S. borders, even if they aren’t American citizens. That includes a district judge's September ruling against the Trump administration over its efforts to deport noncitizen student protesters over their pro-Palestine speech. "No one’s freedom of speech is unlimited, of course, but these limits are the same for both citizens and non-citizens alike,” the judge wrote in the ruling, which the administration vowed to appeal. The government far more discretion when it comes to making speech-based visa decisions about foreigners physically outside of the country. Get the Daily Briefing newsletter in your inbox. The day's top stories, from sports to movies to politics to world events. Delivery: Daily Your Email Here’s what to know about the new policy and its First Amendment implications: What online content would disqualify an applicant? The department “uses all available information in visa screening and vetting to identify visa applicants who are inadmissible to the United States, including those who pose a threat to U.S. national security or public safety,” the announcement said. The public announcement did not provide details on what officials would be specifically looking for in the reviews or what types of content would be deemed disqualifying. Reuters previously reported that H-1B application reviews will consider a person’s participation in “censorship,” including work in disinformation, content moderation and fact-checking, to be potentially disqualifying, according to a State Department cable obtained by the news organization. “If you uncover evidence an applicant was responsible for, or complicit in, censorship or attempted censorship of protected expression in the United States, you should pursue a finding that the applicant is ineligible,” the cable said, according to Reuters. Why was this policy created? The new policy was announced around the same time as U.S. Citizenship and Immigration Services paused immigration applications from 19 countries deemed by the administration to be high-risk. The agency’s Dec. 2 memo specifically referenced a foiled Election Day terrorist attack in 2024 and the shooting of two National Guard members patrolling Washington in late November. An Afghan man accepted a plea deal in the first incident in April. Another Afghan man was arrested in connection with the Washington shooting, which killed 20-year-old West Virginia National Guard member Sarah Beckstrom. The other victim in the attack, 24-year-old U.S. Air Force Staff Sgt. Andrew Wolfe, was “slowly healing” as of early December. “In light of identified concerns and the threat to the American people, USCIS has determined that a comprehensive re-review, potential interview and re-interview of all aliens from high-risk countries of concern who entered the United States on or after Jan. 20, 2021, is necessary,” the memo said. U.S. Customs and Border Protection on Dec. 9 proposed a rule that would impose new biometric requirements and increased data collection for foreign tourists. Why are some concerned about the policy? Some experts said the lack of public information about what the online presence reviews would specifically entail have left immigration attorneys unsure how to advise their clients. The expanded requirements could cause a “big interruption” for American businesses wanting to hire foreign workers whose application processes are being delayed by the more thorough reviews, immigration attorney Matthew Maiona said. Many visa applicants have already received communication delaying their appointments by several months, he said. He noted, though, that consulates and embassies have a right to review applicants’ backgrounds and make determinations about potential threats. But there are also "gray areas,” and the lack of specifics has left attorneys “scrambling” to figure out how to advise their clients, Kate Angustia, supervisory policy and practice counsel at the American Immigration Lawyers Association, said. It’s unclear, for example, if the administration would reject an H-1B applicant’s request because their child posted “Free Palestine” on social media, she said. “We don’t know the scope of the problem, but the fact that anybody’s free speech could be abridged is problematic and is something we don’t support,” Angustia said. Why do some support the policy? But others challenged the notion that the policy presents free speech challenges. “Nobody who is not a citizen of the United States has an inherent right to come to the United States,” said Ira Mehlman, media director of the Federation for American Immigration Reform, which seeks to reduce overall immigration. “We can make decisions based on any number of considerations.” He noted the policy is not based on immutable characteristics like race or religion, adding that the U.S. Supreme Court has given the president “broad latitude” to define what constitutes a national security threat. Mehlman made a distinction between mere policy disagreement and “overtly anti-American kind of rhetoric,” saying that the latter can be disqualifying because being granted an American visa is a “privilege, not a right,” echoing language used by the State Department in announcing the new policy. “There have always been ideological exclusions,” Mehlman said. “We don’t admit Nazis to the country, even if Microsoft wants to hire them.” For more information, visit us at https://www.beverlyhillsimmigrationlaw.com/.