All applicants for a U.S. nonimmigrant visa at a consular post quickly become familiar with the DS-160, online nonimmigrant visa application form, which is available on the Consular Electronic Application Center (CEAC) website. The form may seem fairly innocuous and many employers leave employees to fend for themselves to obtain their “visa stamp” from the selected U.S. Consulate or Embassy.
Employers and employees, however, should be aware of some underlying aspects of the DS-160. Below are some examples of a few:
- There is collaboration between the Department of State (DOS) and U.S. Citizenship and Immigration Services (USCIS) concerning the review of the DS-160 and confirming the facts of the relevant underlying petition approved by USCIS (I-797 approval notice), when applicable.
- The Kentucky Consular Center (KCC) of the DOS plays a critical support role and serves as a linkage between USCIS and DOS in the visa and immigration benefit application process. KCC was opened in 2000 in Williamsburg, Kentucky.
- KCC pre-screens data received from USCIS for consular officers and synthesizes information about the petitioner. The information is stored in the Petition Information Management System (PIMS). This PIMS data can be used as a database to verify information for companies that are frequent petitioners with USCIS. Thus, companies should understand that a consular official has access to a bird’s eye view of the application history of the company. Please note that U.S. Customs and Border Protection (CBP) also has access to PIMS.
- KCC determines the true legal name of the petitioner by running a national scan of all U.S. secretaries of state’s records using the employer identification number (EIN). If there is an issue or discrepancy, KCC may call a company official for clarification.
- KCC conducts facial recognition technology review after the visa interview but before visa issuance at a consular post to verify an applicant’s identity.
- KCC may conduct background research regarding a petitioner using LexisNexis, Dun & Bradstreet and other public information.
- KCC screen 100% of the nonimmigrant visa applications using a third party worksite. KCC will not contact the attorney on a G-28 Notice of Entry of Appearance but will instead contact the petitioner’s representative directly.
- KCC received requests for review from consular posts considering a visa application, which can lead to an in person worksite visit from a Fraud Detection and National Security (FDNS) representative of FDNS.
- It is critical to reduce consular delays caused by a failure to provide a PIMS copy of petitions, since the ongoing project to transfer files digitally between USCIS and KCC is still a work in progress. KCC vetting occurs after the USCIS documentation is entered in PIMS.
- Recently, some consular officers have been reviewing whether E-3 visa applicants have adjustment applications pending to question their nonimmigrant intent.
- Based on a recent GAO report criticizing the E visa application process, consular officers have been encouraged to conduct verification reviews of the representations of investors and reviewing E company registrations more frequently, for example.
These points alone should convince an employing petitioner to proceed with caution to provide zero oversight of the DS-160 process. Simple errors by an employee in outlining their duties, job title, worksite, employer’s corporate name, etc. can lead to additional inquiries/misunderstandings related to discrepancies between the information in the DS-160 and the USCIS documentation.
Further, the DS-160 is a data mining form for fraud review and often questions are added to the form that may require employer review. For example, in October of 2019, E visa applicants were faced with the following question:
Has the principal Treaty Trader or Investor already been issued a visa?
A potential E employee of a large multinational company will typically have no clue how to respond. Recently, at least one consular post indicated that the reply could be “yes,” and then insert the applicant’s name and date of birth – but that is one post. In addition, there are General Data Protection Regulation (GDPR) restrictions to consider for E visa applicants in Europe.
Further, now it appears that the DS-160 has activated the questions below, which must be answered or the form will not be able to be submitted. In the past, the questions might be left blank, but the form could be submitted.
- Have you used additional phone numbers in the last five years?
- Have you used additional email addresses in the last five years?
In some cases, the form may ask one question in the review stage, but post submission of the DS-160, the question on the DS-160 itself changes. See the example below:
Review Question – Do you wish to provide information about your presence on any other websites or applications you have used within the last five years to create or share content (photos, videos, status updates, etc.)?
Post DS-160 Submission Question – Have you used additional social media platforms in the last five years?
Do you wish is a very different question from “have you used.” Thus, double-checking a print-out/scan of the actual DS-160 before submission for accuracy is essential.
- Employers should not leave employees without support in the DS-160 process. A visa application is a separate adjudication.
- Employers should have a compliance protocol in place for site visits and inquiries related to visa applications.
- Employees should be prepared for consular interviews and receive oversight regarding the DS-160 information.
- Before sponsoring an employee, it is advisable to have potential employees respond to DS-160 admissibility questions.
- Applicants must take the employment history questions in the DS-160 seriously, including the question, “Have you been previously employed?”. If there are discrepancies in the information provided, for example, as to prior employers, positions held, etc., or simply answering the question with “no” rather than taking the time to fill out this section, a visa officer may deny the application due to a perceived material misrepresentation.
- Often a resume/curriculum vitae (CV) is requested and the information in the DS-160 may be cross-referenced with the resume/CV to determine accuracy. Thus, the accuracy of a resume/CV is important, including the information as to employment dates, duties, full corporate employer names, etc.
- Applicants must know and list the name of their actual employer (petitioner) and not just the name of the contractor where an employee would be placed in connection with a third-party worksite arrangement.
- Employers should consider requesting employees to provide a print-out/scan of their entire DS-160 application before electronic submission to review it for accuracy or to be sure legal counsel includes this service in any visa application services.
- Visa applicants should use the translation options available regarding the DS-160 questions by using the language tool provided to modify the settings and then hover over the question to see it in their native language to try to understand the form questions.
About the Author:
Kathleen Campbell Walker is a member of Dickinson Wright PLLC and serves as a co-chair of the Immigration Practice Group. She is a former national president and general counsel of the American Immigration Lawyers Association (AILA) and is Board Certified in Immigration and Nationality Law by the Texas Board of Legal Specialization. She serves on the AILA Board of Governors. In 2014, she received the AILA Founder’s Award, which is awarded from time to time to the person or entity, who has had the most substantial impact on the field of immigration law or policy in the preceding period (established 1950). She has testified several times before Congress on matters of immigration policy and border security. She may be reached in our El Paso, TX office at 915-541-9360 and you may view Kathleen’s bio here.