In May 2017 we published an article Top 10 Australian Expat Mistakes which shone light on a number of common expat mistakes: Including certain posts on social media.
In light of a recent News.com.au article, we thought it important to point out common social media posts that can cause serious legal and immigration issues, including a denial of a visa, or voiding your existing work visa.
It may seem incomprehensible, but it is still quite common for Australian expats, and “E-3 Hopeful” Aussies to publicly post on social media that they are breaking, or intend to break US law.
Just in case you missed the memo… Here are some examples of social media posts that can have Australians “treated like criminals” as the article claims.
#7: Advertising Short Term Rentals
Scan any of the “Aussies in [INSERT US CITY]” Facebook Groups and you will see a plethora of posts for short term rentals, as well as posts requesting short term rentals (less than 30 days).
Just because it says it’s a private group, does not make it so!
In New York State, renting an apartment for less than 30 days is not only illegal, but it is illegal to simply advertise a rental of less than 30 days.
You can read Senate Bill S6340A “Prohibiting advertising for the use of dwelling units in a class A multiple dwelling”.
Whether or not New York City or State decides to crack down on the advertising of short term rentals (in social media), the fact is that advertising renting your apartment for a few weeks when you are visiting Australia is openly breaking New York State Law.
This may give rise to some awkward questions at a US border upon your return.
#6: Updating your Social Media too early after a Job Offer
Many can relate to the excitement of receiving a US job offer. There are several tasks ahead in the visa application process including completing your paperwork and booking an E-3 interview at a US Embassy.
One item you should NOT do is update your LinkedIn profile, or add your new workplace to your Facebook profile.
There are real world stories where Australians have rushed to add their new position to their social media BEFORE they have their E-3 visa approved.
Aussies have been detained and denied entry back into the US after a quick weekend in Mexico or Canada during the application process, based solely on the fact that their social media says they are working for a US company when not in possession of a valid work visa.
#5: Posting Questions on How to Self Petition for an E-3 Visa
It is a given that US corporations can sponsor Australian employees on an E-3 visa. For those more “entrepreneurial” Australians, there are websites and social media groups who offer advice on how to setup a US Corporation and self petition for an E-3 visa.
However if the intent of establishing a US corporation is solely for the purpose of self petitioning for an E-3 visa, the law is very clear, and this self petitioning may be deemed as “Improper entry by an Alien”.
If so, then that person would be in violation of 8 U.S. Code § 1325 (d) – Immigration Related Entrepreneurship Fraud:
“Any individual who knowingly establishes a commercial enterprise for the purpose of evading any provision of the immigration laws shall be imprisoned for not more than 5 years, fined in accordance with title 18, or both.
#4: “Actively Looking” for work whilst in the USA on an ESTA or B1/B2
If there was any grey area on this subject, that ship has long sailed. However you do not have to look far to see posts on social media stating that someone is actively looking for work on a tourist visa.
Regardless of whether you are on a B1/B2 or ESTA, “looking for work” cannot be the primary reason you are entering the US. If you are here for legitimate business or tourist reasons, and you are inadvertently offered work, that is very a different case.
However, posting that you are looking for work on public social media will almost certainly result in the denial of a visa (including an E-3), including a ban on further entry into the US.
Is the sudden spike in Australian entering the US on a B1/B2 raising a red flag?
#3: Travel to Cuba
There is no doubt that since the US opened a pathway for US citizens and residents to legally visit Cuba, there has been a surge in tourism enquiries. However, there are only very limited visa categories and strict guidelines for visiting what is still a Communist Nation under a US economic embargo.
You may be forgiven for asking on public social media if you can apply for an E-3 at the US Embassy in Havana, but if you are posting selfies of you drinking Mojitos at Club Havana, your travel had better fallen under one of 12 categories of authorized travel.
If not, that Mojito alone is going to cost you a $7,500 fine for starters…
#2: Posting questions on recommendations for Immigration Attorneys
Dual Intent or Immigrant Intent are concepts within US law that deal with all persons on non-immigrant visas, being assumed that they intend to illegally stay in the US: You are presumed guilty unless you can demonstrate your intent to return to your home country before your visa expires.
This enables Immigration and Border Protection Agents to do their jobs and ensure that every person entering the US is being truthful about their stay in the US, and detain and deport anyone they believe is not being truthful based on presumed “Immigrant Intent”.
Immigrant Intent includes looking for work or marrying a US Citizen.
One red flag for a CBP Agent, aside from a stack of Resumes (or a box of tools), is to be in possession of an Immigration Attorney’s business card. The assumption is that once you gain entry on a visa (or visa waiver), your intent is to contact that Attorney to change your immigration status. This is grounds for denial of entry into the US.
Similarly, if you are on a tourist visa, and you post that you are looking for recommendations for an Immigration Attorney, this could be interpreted as “Immigrant Intent” and next time you try and cross into the US, you could be stopped for questioning.
#1: Posting Green Card questions about marrying a US Citizen
According to Zjantelle Cammisa Markel, an Australian immigration lawyer based in NYC, “If you do anything that’s inconsistent with you visa application within 90 days, it can be considered a misrepresentation”.
Aside from applying for an E-3 visa whilst on an ESTA, getting married in the first 90 days of a tourist visa is going to raise some serious red flags.
If you posted a question on your social media, that you are looking for advice on, or concerning marrying a US Citizen for a Green Card, then:
a) Your Green Card application may well be denied on the grounds of “misrepresentation” when you entered the US.
b) If you posted it before leaving for the US, do not be surprised if you are detained by US Immigration at the border, asked some serious questions, and even sent home on the next flight.
Common Sense and the Age of the Internet.
It is very clear that there are distinct sets of people who find themselves in serious hot water with US immigration after social media posts:
a) Those who are knowingly breaking US Law, but do so anyway.
b) Those who feel entitled, and that US Law does not apply to them.
c) Those who are looking for free advice on public social media.
d) All of the above.
In the Age of the Internet some people have never developed an inner voice that tells you “I wouldn’t post that if I were you”. The fact is that some people think nothing of reaching out to strangers on public social media and asking legal questions on Immigration Law.
Whereas in the past, certain questions that were protected by Client / Attorney privilege are now openly out for everyone to read, including the US Government. As a result, more and more people are being caught in a web spun by a simple lack of common sense. #nofilter
In spite of what you may read on social media, there is no “right” to enter the US, even if you are in possession of a valid visa, E-3 or otherwise. The US has always had very strict Immigration Laws, and a zero tolerance for those who would break them.
The current Administration is simply hardening existing laws, and ensuring that they are enforced.
Our organization from day one has told its members (and anyone else who will listen) to always follow Rule #1: OBEY THE LAW; and if in any doubt about Rule #1 seek professional advice.
You may not agree with it all the time, but it is US Law all of the time – and remember – social media posts are forever!