Tougher USCIS Discretion: Anti-American Activity & Social Media

New USCIS Guidance Raises the Bar

We often think that the EB-5 process is all about the numbers: invest the required capital, create the jobs, get your green card. In reality, adjudicators have broad discretion to approve or deny benefit requests based on character, conduct and national security concerns. In late 2025 USCIS updated its Policy Manual to emphasize that "anti-American activity" and antisemitic ideology are heavily negative factors in discretionary analysis. At the same time, the agency expanded social media vetting beyond national security screenings to include other immigration benefit requests. For EB-5 investors, these changes mean that what you say or post online could come back to haunt you – even after your capital is committed and jobs created.

What Counts as Anti-American Activity?

According to USCIS, anti-American activity includes speech or actions that advocate violence against the United States or its citizens, promote the overthrow of the government, deny fundamental American values or support designated terrorist organizations. The new guidance instructs officers to treat such activity as a "heavily weighted negative factor," potentially outweighing positive discretionary elements like family ties or humanitarian considerations. Although the policy doesn’t create a per se bar, it empowers adjudicators to deny petitions if they determine the applicant’s past actions or associations pose a threat.

How Social Media Vetting Works

USCIS already collects social media handles on certain forms, but the October 2025 update signals a broader use of publicly available online information. Officers may review posts, comments and followers to assess whether an applicant has engaged in anti-American or antisemitic activity, or has misrepresented facts. The guidance warns that online statements – even if intended as jokes or taken out of context – can raise questions about an applicant’s character and intent. In practice, this means that controversial memes, political rants or support for extremist figures could invite scrutiny and trigger Requests for Evidence or Notice of Intent to Deny.

Implications for EB-5 Investors

While most EB-5 petitioners are focused on meeting investment and job-creation requirements, discretionary denials can derail a case regardless of the capital deployed. The risk is higher for investors from countries under the "high-risk" list, where anti-government sentiments or censorship may encourage private discussions to spill onto social media. Here’s what the new guidance could mean for your EB-5 petition:

• Post-approval risk: Even after your I-526E or I-829 is approved, a consular officer or adjudicator can revisit discretionary factors during visa issuance or removal of conditions. A problematic post discovered later could lead to a denial or revocation.
• Increased RFEs and interviews: If an officer uncovers questionable content, expect additional questions about your beliefs, associations and intent. This can delay processing and add legal costs.
• Partner and dependent exposure: Family members’ online activities may also be reviewed if they accompany you under a single petition. Encourage spouses and adult children to audit their social media presence.

Protecting Your Online Footprint

You don’t need to delete your entire digital identity, but you should treat your EB-5 petition as a background investigation. Here are some best practices:

• Audit your accounts: Review public posts and comments across all social media platforms. Remove content that could be misinterpreted as advocating violence or opposing U.S. laws.
• Update privacy settings: Make personal profiles private and limit public visibility of past posts. Consider separating professional networking (e.g., LinkedIn) from personal social networks.
• Avoid reposting extremist content: Even sharing controversial articles without endorsement may trigger review. If you comment on political or religious matters, use neutral language.
• Be honest about your history: If you’ve engaged in activism that could be deemed anti-American, disclose it to your attorney. A well-prepared explanation can mitigate concerns.

Conclusion

USCIS’s focus on anti-American activity and social media vetting signals a broader trend toward values-based discretionary analysis. For EB-5 investors, that means the journey doesn’t end with transferring funds – it extends to your digital footprint and perceived loyalty to the United States. By auditing your online presence, consulting experienced counsel and supporting advocacy efforts, you can navigate these new hurdles with confidence.