Update (June 5, 2017):

Update (June 5, 2017): Multiple outlets have reported that the Office of Management and Budget (OMB) granted emergency approval for the enhanced vetting of a limited number of visa applicants as described in this article.

Introduction

On May 4, 2017, the United States Department of State (DOS) published a notice in the Federal Register (FR) titled “Notice of Information Collection Under OMB Emergency Review: Supplemental Questions for Visa Applicants” [see 82 FR 20956]. In the Notice, the DOS submitted an information collection request for a limited subset of consular processing cases to the Office of Management and Budget (OMB) seeking approval in accordance with the emergency review procedures of the Paperwork Reduction Act of 1995. The FR Notice is open for public comment until May 18, 2017. If the OBM grants emergency approval by May 18, 2017, such emergency approval will only be valid for 180 days. In this post, we will examine the request and what it may mean if OMB grants emergency approval.

Proposed Collection

In the FR Notice, the DOS proposed requesting the following information, if not already included in an application, from a certain subset of visa applicants worldwide:

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;
Numbers and dates of birth for all siblings;
Numbers 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.

Estimated Impact

The DOS stated that the extra information collection would apply to visa applicants (immigrant and nonimmigrant) “who have been determined to warrant additional scrutiny in connection with terrorism or other national security related visa ineligibilities.” The DOS estimated that this enhanced vetting would apply to 65,000 visa applicants annually, adding up to approximately 0.5-percent of all visa applicants processed by the DOS. The DOS also estimated that 65,000 applicants would respond to the extra information requests.

The DOS estimated that the average time per response would be one hour. Therefore, the DOS estimated that the burden time on an annual basis would be 65,000 hours.

The DOS stated that it will update its estimate in its next request to continue collecting extra information from certain high-risk applicants.

Discussion of the Proposal

The DOS explained that “[m]ost of the information is already collected on visa applications but for a shorter time period.” The DOS’s requests for names and dates of birth of siblings, and in certain cases, children, are not included on visa applications. Requests for social media identifiers and associated platforms have also not previously been requested by the DOS. However, the DOS notes that the Department of Homeland Security (DHS) collects information regarding social media identifiers and associated platforms for certain individuals on a voluntary basis.

The DOS explains that it would request the additional information about travel history “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 as defined in section 212(a)(3)(B)(vi) of the Immigration and Nationality Act…” The DOS may ask such applicants “to recount or explain the details of their travel, and when possible, provide supporting documentation.”

The DOS explains that the information collection implements a directive of President Donald Trump issued on March 6, 2017 [link]. Specifically, the FR Notice cites to the provision of the directive that called for implementing procedures focused on “ensur[ing] the proper collection of all information necessary to rigorously evaluate all grounds of inadmissibility or deportability, or grounds for the denial of other immigration benefits.” Please see our full article to learn more about the Presidential Memorandum and the associated Executive Order [see article]. The DOS was clear in noting that, in accord with existing authorities, “[t]he collection of social medial platforms and identifiers will not be used to deny visas on the basis of race, religion, ethnicity, national origin, political views, gender, or sexual orientation.”

Methodology in Implementing the Proposal

The DOS will pose the questions discussed in the FR Notice when “a review of a visa application, or response in a visa interview indicate a need for greater scrutiny.” The DOS may submit the additional questions electronically or orally at the time of the interview.

The DOS made clear with regard to seeking social media identifiers that “[c]onsular 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 will also not interact with individuals or applicants on social media. Consular officers are also directed to not attempt to violate individual privacy settings on social media. Finally, consular officers are directed to not use social media or assess an individual’s social media presence beyond established DOS guidance.

Effect of Incomplete Answers to Questions

The DOS stated that failure to provide requested information “will not necessarily result in visa denial” in every case. The FR Notice explains that if an applicant can provide a credible explanation as to why he or she cannot answer a given question or produce requested supporting documentation, and if the consular officer is able to henceforth conclude that the applicant has provided sufficient information in order for the consular officer to determine that the applicant is eligible to receive a visa, the visa may be granted notwithstanding the inability to answer every question or provide every requested document.

Conclusion

The DOS’s emergency data collection request is consistent with the Trump Administration’s emphasis on enhancing vetting of those seeking visas to visit or immigrate to the United States. Notably, the Trump Administration is moving forward with implementing provisions of his March 6 Executive Order on travel and the associated Presidential Memorandum that are not being blocked by court orders.

If the new enhanced vetting goes into effect, it is expected to affect a very small number of all visa applicants with high risk profiles. Assuming the emergency request is granted, it remains to be seen whether the new protocols will have a discernable effect on processing times for the vast majority of visa applicants who would not be subject to the enhanced vetting, especially at consular posts that may see more visa applicants who meet the criteria for the new information collection.

Those seeking visas should consult with an experienced immigration attorney throughout the visa application process for guidance on satisfying the DOS’s requests for information through the consular process. We will update the site with more information on the DOS’s new data collection protocols as it becomes available.

Please see our separate article on several DOS cables issued on the implementation of President Trump’s March 6 Travel Order [see article].