Department of State plans to heighten screening and vetting of visa applicants: Update

News Release from Jewell Stewart & Pratt PC – May 8, 2017

As noted in our prior blog post, a Department of State cable sent by Secretary Tillerson on March 17, 2017 provided immediately effective guidance to all U.S. diplomatic and consular posts regarding the screening and vetting of visa applications.

On May 4, 2017, the Department of State published a Notice of request for emergency OMB approval and public comment on a new Form DS-5535, Supplemental Questions for Visa Applicants. This form would collect information from visa applicants who have been determined to warrant additional scrutiny in connection with terrorism or other national security-related visa ineligibility. The information includes:

  • Travel history during the last fifteen years, including source of funding for travel;
  • Address history during the last fifteen years;
  • Employment history during the last fifteen years;
  • All passport numbers and country of issuance held by the applicant;
  • Names and dates of birth for all siblings;
  • Name and dates of birth for all children;
  • Names and dates of birth for all current and former
  • spouses, or civil or domestic partners;
  • Social media platforms and identifiers, also known as handles, used during the last five years; and
  • Phone numbers and email addresses used during the last five years.

The Notice addresses the novelty of this type of form of data collection by the Department of State:

[m]ost of this information is already collected on visa applications but for a shorter time period, e.g. five years rather than fifteen years. Requests for names and dates of birth of siblings and, for some applicants, children are new. The request for social media identifiers and associated platforms is new for the Department of State, although it is already collected on a voluntary basis by the Department of Homeland Security (DHS) for certain individuals. Regarding travel history, applicants may be requested to provide details of their international or domestic (within their country of nationality) travel, if it appears to the consular officer that the applicant has been in an area while the area was under the operational control of a terrorist organization.... Applicants may be asked to recount or explain the details of their travel, and when possible, provide supporting documentation.

The Notice also estimates number of visa applicants that will be affected by this new data collection -- 65,000 -- and the effects of failure to provide the information requested:

The estimated number of respondents represents the estimate of relevant State Department officials that 0.5% of U.S. visa applicants worldwide, or in the range of 65,000 individuals per annum, will present a threat profile, based on individual circumstances and information they provide, that will lead U.S. consular officers at posts around the world to conclude the applicant warrants enhanced screening that takes into account the information that is proposed to be collected. The estimate will be updated in the next request to continue collecting the information based on experience reported by overseas posts. Failure to provide requested information will not necessarily result in visa denial, if the consular officer determines the applicant has provided a credible explanation why he or she cannot answer a question or provide requested supporting documentation, such that the consular officer is able to conclude that the applicant has provided adequate information to determine the applicant's eligibility to receive the visa.

Addressing the subject of social media and the rights of visa applicants, including their privacy, the Notice states:

The collection of social media platforms and identifiers will not be used to deny visas based on applicants' race, religion, ethnicity, national origin, political views, gender, or sexual orientation. ...

Consular officers will not request user passwords and will not attempt to subvert any privacy controls the applicants may have implemented on social media platforms. Consular officers are directed not to engage or interact with individuals on or through social media; not to violate or attempt to violate individual privacy settings; and not to use social media or assess an individual’s social media presence beyond established Department guidance.

Comments are due on May 18, 2017. If the emergency approval is granted, it is only valid for 180 days.

© Jewell Stewart & Pratt PC 2017