How the Updates to the State Department's Nonimmigrant Visa Form Affect You

December 17, 2019

A seemingly benign application form known as the DS-160 nonimmigrant visa application form is completed online by all applicants seeking to work in temporary visa status in the United States. The form, available on the Consular Electronic Application website, may seem like an easy undertaking but in fact, there are traps that the unwary applicant must be aware of as they move through the form and answer the questions solicited.

Specific areas of concern relate to the coordination of activity and background checks between the DS-160 U.S. State Department form, the U.S. Citizenship Services petition process, which prompts a foreign national to complete the form, the Kentucky Consular Center (KCC) and U.S. consular posts abroad and how each of these agencies interact and share information with each other.

Both foreign nationals and their U.S. employers should be aware of specific information related to the actions taken by the U.S. government once the applications are uploaded and reviewed.

The Department of State and U.S. Citizenship Services collaborate in verifying information furnished by the U.S. employer submitting a nonimmigrant visa petition to U.S. Citizenship and Immigration Services (USCIS) and the potential foreign national employee it may wish to hire. The KCC plays a role of critical support linking USCIS and the Department of State relating to the issuance of immigration benefits. The KCC will pre-screen data received from USCIS after the issuance of an approved visa petition and will forward to the consulate in the form of the Petition Information Management System (PIMS).

PIMS is used as a database to verify corporate information and furnishes a consular official with a summary of the application history of the company. USCIS also has access to the PIMS system. A further role of the KCC is to run a scan of all U.S. secretaries of state records using employer identification numbers, and other factors including facial recognition technology after visa interviews but before visa stamp issuance. It also screens all petitions with third-party worksite locations and it may prompt an in-person worksite visit from a Fraud Detection and National Security representative.

Recently, both consular officers and KCC staff have further been tasked with conducting verification reviews for investor visa applicants, specifically in the E-1 and E-2 visa category and, as of late, consular officials have been soliciting questions regarding E-3 applicants and whether they might have adjustment of status applications submitted on their behalf. Adjustment of status applications in the E-3 visa context may be construed as contradictory to the premise of E-3 visa issuance, which presumes temporary intent to reside in the United States.

The lesson to be learned from all of this data sharing between government agencies is to tread carefully when individual foreign applicants complete the DS-160 visa application form. Social media questions are the latest items solicited from individual applicants - and being challenged currently in federal courts as a violation of the Administrative Procedure Act, exceeding the Secretary of State's authority under the Immigration and Nationality Act, and it is contended to be contrary to constitutional rights and arbitrary and capricious. See Doc Society and Int'l Documentary Ass'n v. Pompeo, et al., No. 1:19-cv-03632 (D.D.C. Dec. 5, 2019).

In addition, we recommend that a compliance protocol be set up and in place by U.S. employers for site visits and inquiries from the various federal agencies that may come knocking on the door, with or without advance notice. U.S. employers and prospective foreign national employees should be well prepared for consular visa interviews and any subsequent fallout. Questions relating to the names of actual employers, accuracy of prior employment history and an awareness that governmental agencies may crosscheck information on social media should be uppermost in the minds of the prospective employee when they apply for U.S. visas at consular posts.

Consistency regarding employment history and social media handles is recommended. It is also highly recommended that employers should consider requesting that employees maintain a copy of the DS-160 printout/scan of the entire application prior to electronic submission to review for accuracy and to be certain that legal counsel is apprised of any questions that might need answers while processing these seemingly simple questionnaires.

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