As part of a continuing crackdown on U.S. borders, the Trump administration is now considering placing stricter requirements for entry on citizens of some visa-exempt countries.
The beefed-up regulations proposed by U.S. Customs and Border Protection would, in part, require visitors from those countries to submit five years’ worth of social media information.
The proposal is currently out for “commentary period,” meaning the public has 60 days to comment on it.
Earlier this month the U.S. paused all immigration applications from 19 “high-risk countries of concern.”
Here’s a look at what the new proposals could mean for travellers heading to the U.S. — including a small number of Canadians who might be affected.
Which countries are affected?
The new proposal, published Wednesday in the Federal Registrar, would apply to travellers from more than three dozen countries that are part of the Visa Waiver Program (VWP), who submit their information to the Electronic System for Travel Authorization (ESTA) if they want to visit the U.S.
These countries include nations that have traditionally close ties with the U.S., such as Australia, France, Germany, Israel, Japan, South Korea and the United Kingdom.
The VWP was established to make it easier for citizens of these countries, which are deemed lower risk, to enter the U.S. for tourism or business for up to 90 days without a visa.
The lower-risk designation was based, in part, on citizens of these countries having a historically low incidence of overstaying.
As well, these countries share law-enforcement information with the U.S, meaning their citizens can be screened for incidents of criminality.
A proposed change to U.S. entry rules would require some visitors to submit five years of social media history, names and addresses of family members, and biometrics like DNA. While this wouldn’t apply to those using Canadian passports, it would apply to travellers from 42 visa-exempt countries.
The ESTA application, completed online, is needed before an individual can board their flight or ship to the U.S. or cross at a land border.
The application requires information like passport details, home and email address, phone number and emergency contact. Travellers may also be asked questions regarding communicable diseases, arrests and convictions for certain crimes, and past history of visa revocation or deportation, according to the ESTA website.
An approved ESTA application is generally valid for two years.
What new requirements are being proposed?
U.S Customs and Border Protection is proposing to decommission the ESTA website and replace it with an app.
People from these countries planning to visit the U.S. would be asked to provide five years of their social media history; email addresses used in the past 10 years; telephone numbers used in the past five years; and information about family members, including their addresses and telephone numbers.
“So, it’s a whole host of information that flies in the face of the spirit of ESTA,” said Rosanna Berardi, a Buffalo-based immigration lawyer.
No details have been given on how people would submit their social media history.
What would border officials be looking for?
Berardi said it’s all speculative at this point but, based on current rhetoric, border officials will likely be looking for anti-American sentiments or people involved in anti-American groups.
Brian Hunt, counsel at the U.S.-based immigration law firm Fragomen, said they will likely be using AI tools to scan social media accounts for certain keywords.
“There’s been other recent programs where they are looking at social media … and they’re talking about [posts] supporting terrorism, supporting antisemitic violence,” Hunt said.
For example, U.S. Citizenship and Immigration Services now considers whether an applicant for benefits, such as a green card, “endorsed, promoted, supported, or otherwise espoused” anti-American, terrorist or antisemitic views.
Could that include posts critical of the president?
Hunt said there’s simply no provision in law that would allow border officials to deny someone entry if they had made critical comments about U.S. President Donald Trump on social media.
“They could try some kind of discretionary denial, but the fact is that the courts really wouldn’t stand for that,” he said.
“They can’t exclude someone, deny them entry, deny them a visa, without giving a reason. And the reason has to be consistent with the law.”
But Beraradi said applicants should be aware there’s no right to privacy for a foreign national coming to the U.S. regarding personal information like social media posts.
“The U.S. Constitution and the Supreme Court are very clear on that. The First Amendment right applies only to individuals physically present in the U.S ,” she said.
Are any Canadians affected?
Berardi said 99.9 per cent of Canadians won’t be affected by the proposed changes.
Canadians are not part of the VWP, do not need to apply through ESTA to visit the U.S., and mostly just need to show their passport.
There are, however, two types of visa categories that Canadians use, Berardi said.
One is called the investor visa, which requires a Canadian to go to the U.S consulate for an interview, “but they’ve been doing that at the visa appointment level for years now, so really not a big change,” she said.
The other category is the K-1 fiancé(e) visa, she said, under which an incomer planning to marry a U.S. citizen must do so within 90 days of entering the country.
“But for the vast majority of Canadians, it’s still show your passport and go,” she said.
