What’s Happening
As the immigration landscape continues to evolve under the Trump Administration, certain trends have been observed at U.S. ports of entry, including the detention of visitors, nonimmigrant visa holders, and lawful permanent residents. There has also been a rise in the search of social media, phones, and other electronic devices for individuals clearing U.S. immigration. While these occurrences remain isolated and represent only a small fraction of the total number of travelers admitted to the U.S. each day, they understandably are causing concern from non-citizens living in and/or traveling to the U.S. Below is an overview of best practices for navigating both travel and digital privacy.
Best Practices for Navigating Travel
Expect More Scrutiny at Border and Carry Extensive Documentation of Admissibility to the United States
As a result of recent Executive Orders, Customs and Border Protection (CBP) is scrutinizing every applicant for admission much more closely, including reviewing their social media, credentials, documentation, and reason for coming to the United States. As such, we continue to expect a higher percentage of individuals to be sent to secondary inspection to have their application for admission scrutinized more heavily. It is therefore critical that you carry as much documentation as possible to support your admissibility, that you understand the entry requirements for the type of visa you are traveling on, and that you are prepared to effectively answer questions from CBP about your intended activities in the United States.
Consider Limiting Non-Essential Travel if You Have any “Red Flags”, including:
Carrying Equipment Normally Associated with Work if you Do not have a Green Card or Appropriate Work Visa: Traveling with items such as film equipment, DJ gear, or tools typically used for employment may lead immigration officers to suspect you're coming to work rather than visit.
Entry as a Visitor Following Long Periods in the U.S. in Visitor Status and/or Frequent Trips: If you’ve spent long periods in the U.S. or have frequently traveled to the U.S. without a clear reason, it might suggest that you're not respecting the limitations of visitor status. This can trigger suspicion of intending to stay longer than allowed or working without authorization.
Entry on a Nonimmigrant Visa or ESTA Following Prior Visa Overstays or Refusals of Admission: Any previous overstay of your allowed time on a B1/B2 visa or ESTA will raise concerns. It shows a lack of compliance with U.S. immigration rules and could make future entries more difficult.
Any Arrests, Convictions, or Ongoing Criminal Proceedings Anywhere in the World: Even if the arrest or conviction is unrelated to U.S. law, it can raise red flags. U.S. immigration officers may deny entry if there’s evidence of criminal activity or if you're involved in active legal issues, especially those related to drug trafficking or fraud. Note that even old convictions that have not previously impacted U.S. travel, may now result in additional scrutiny when clearing immigration.
Previous Warnings by CBP: If you’ve previously been warned or advised by CBP that they’ve noted any concerns in your file, this can be a significant red flag. These warnings may indicate you're under heightened scrutiny, and future applications may be subject to further delays or refusals of admission.
Entry on a Visitor Visa or a Strictly Nonimmigrant Visa (F-1, TN, J-1, etc.) Without Evidence of Strong Ties to Your Home Country: If you don’t have strong evidence that you’ll return to your home country (such as a job, family, or property), or you have a a close relatives (spouse, children, fiance, parents) who live in the U.S. and/or holds green cards or U.S. citizenship, the officer may suspect you intend to stay permanently.
Entry as a Visitor With Unclear or Inconsistent Travel Plans: A lack of clear or coherent travel plans can raise suspicions about your true intentions as a visitor. For example, if you cannot provide details on where you’ll stay or your planned activities, this might be a red flag.
Entry as a Visitor Without Sufficient Documentation of Financial Support: If you cannot demonstrate sufficient funds to support your stay without needing to work in the U.S., or if you are being sponsored by someone with a questionable background, this could be another indicator that you might overstay or violate your visitor status.
Problematic Social Media or Other Online Presence: Earlier this month, Department of Homeland Security (DHS) announced that the agency plans to examine social media accounts of anyone trying to enter the country, as well as non-citizens applying for immigration benefits. The Department of State will also be more closely scrutinizing social media accounts, especially for F, M, and J visa applicants. Prior to applying for a visa stamp or clearing immigration, individuals should carefully review all social media posts that could be construed as indicating plans to work in the U.S. or prior work in the U.S. without an appropriate visa, drug use, involvement in protests or other political activity currently being heavily scrutinized by the current administration, political speech that could be deemed contrary to U.S. interests, or other activities that could result in a finding of inadmissibility.
Digital Privacy for Non-citizens Entering the U.S.
Non-citizens traveling to the U.S. should be prepared for the possibility that their digital devices (e.g., smartphones, laptops, and tablets) may be searched or seized at U.S. ports of entry. While the U.S. has several regulations and policies that govern digital privacy rights at the airport, their consequences differ for U.S. citizens and non-citizens. Below is a breakdown of key considerations.
CBP and ICE Have The Authority To Search U.S. Citizens’ and Non-Citizens’ Digital Devices
Under U.S. law, U.S. Customs and Border Protection (CBP) and U.S. Immigration and Customs Enforcement (ICE) have the authority to search digital devices of both U.S. citizens and non-citizens entering or exiting the country without a warrant or probable cause. These searches are not contingent on the traveler’s consent, and CBP can take and search U.S. citizens’ and non-citizens’ digital devices without consent and without a warrant. However, the consequences of refusing to comply with a request to unlock the device differ between U.S. citizens and non-citizens.
U.S. citizens cannot be denied entry into the U.S. for refusing to comply with a request to unlock their device or to provide a password, though they may be detained for longer or have their device seized and not returned for weeks or months.
The same should be true for lawful permanent residents (LPRs), as their green cards cannot be revoked without a hearing before an immigration judge. However, while U.S. immigration law protects LPRs from arbitrary detention unless they have violated specific terms of their residency or committed certain criminal offenses, recent reports of LPRs detained without clear explanation of any legal violations that would render them inadmissible or deportable reflect the increasing uncertainty around the treatment of LPRs.
Nonimmigrant and visitor visa holders risk being denied entry if they refuse to provide a password.
Basic and Advanced Searches of Digital Devices
CBP and ICE guidelines provide officers with broad authority to search the devices of travelers at U.S. ports of entry, including searching devices and retaining devices for further inspection.
Basic Searches: For both U.S. citizens and non-citizens, border officers can conduct a basic search (viewing the contents of a device) without any suspicion.
Advanced Searches: For an “advanced” or “forensic” search, the device is connected to external equipment and its contents can be reviewed, copied, or analyzed. CBP agents are not required to return your device before you leave the port of entry, and can choose to retain it for 5 days, a period that can then be extended in 7-day increments. If your device is confiscated, you should be issued (or request) a Custody Receipt.
CBP and ICE policies require reasonable suspicion that a device contains evidence of criminal activity, national security threats, or immigration violations before an advanced search can be conducted. However, courts reviewing challenges to advanced searches have disagreed on the level of suspicion needed for digital device searches at the border, with one court imposing very few limits. U.S. citizens can challenge some device searches, but non-citizens have fewer legal options to contest these searches.
Tips For Protecting Your Digital Privacy
CBP has stated that it is against agency policy for border agents to search cloud-stored data on electronic devices, i.e., data such as email or social media messages and posts that are only accessible via the internet. If you are concerned about protecting your digital privacy, consider taking the following steps before entering the U.S.:
Travel with as little data and as few devices as possible (though note that wiping your device entirely could raise suspicion).
Turn off your devices completely before entering the U.S., and ensure your device requires a password to unlock (rather than Face or Touch ID).
Prior to turning off your devices, put them in “airplane mode” before crossing a border checkpoint or otherwise entering the U.S.
Store sensitive data in an end-to-end encrypted cloud-storage account and remove sensitive data from your device.
Consider removing or logging out of apps to limit the data directly accessible on the device.
If you are required to share your password with a CBP agent, you should change it as soon as you have the chance and no longer use that password for any other account.
Flag for CBP if you have protected data on your devices such as information protected by attorney-client privilege or sensitive medical information protected under HIPAA.
This post is for informational purposes only and does not constitute legal advice.