In anticipation of President Trump’s second travel ban (Executive Order No. 13780, “Protecting The Nation From Foreign Terrorist Entry Into The United States”) taking effect on March 16, 2017, the U.S. Department of State (DOS) issued guidance to U.S. consular posts regarding implementation of additional vetting of certain visa applicants on March 15, 2017; this guidance was then revised on March 17, 2017 after the Federal District Court in Hawaii granted a nationwide TRO and injunction against parts of the second travel ban on March 16, 2017. A separate Federal District Court in Maryland also issued an injunction against the second travel ban, and the Trump administration is pursuing appeals to the Ninth and Fourth Circuit Courts of Appeal.
The DOS guidance is entitled “Implementing Immediate Heightened Screening and Vetting of Visa Applications;” the March 15, 2017 guidance mandated asking a set of additional questions of certain visa applicants, and the March 17, 2017 guidance asked consular officers to not pose the additional questions until DOS receives approval from the Office of Management and Budget (OMB).
The March 17, 2017 guidance requests that:
- Consular Chiefs convene working groups to “develop a list of criteria identifying sets of post applicant populations warranting increased scrutiny,” then
- Direct adjudicating consular officers “to attempt to identify individual applicants that fall within the population set” during visa interviews, and
- If applicants fall within the “population set” but are otherwise eligible for a visa (including having overcome the presumption of immigrant intent), recommends that consular officers “should consider sending a discretionary Donkey Security Advisory Opinion (SAO) request” (name check clearance), and
- Requests that officer should “continue to follow all existing SAO guidance” (apply any other security check clearance processes that conceivably could have been applied prior to the injunction).
- If the consular post determines the applicant “may have ties to ISIS or other terrorist organizations or has ever been present in an ISIS-controlled territory” the applicant must be referred to the Fraud Protection Unit for that consular district for a “mandatory social media review.”
Finally, the DOS guidance also indicates that posts should generally not schedule more than 120 visa interviews per consular adjudicator per day to allow for proper focus to be given to each application, and notes that this limiting of scheduling “may cause interview appointment backlogs to rise.”
On May 4, 2017, DOS published a notice in the Federal Register requesting OMB’s “emergency” (expedited) approval notice of a new form, DS-5535, and providing a shortened time-frame, until May 18, 2017, for public comments. The new form will be mandated for a “subset of visa applicants worldwide,” makes the same reference to “sets of post applicant populations warranting increased scrutiny” as the March 17, 2017 DOS guidance, and adds the following additional questions, either via the new form before or at visa interviews, or orally at interviews, which were also listed on the March 15, 2017 DOS guidance:
- 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.
Notably, among other new information being demanded, this is the first time that the U.S. government will be mandating social media information as part of the visa application process. Social media information was requested by the Customs & Border Protection (CBP) as an optional field in the ESTA visa waiver application in 2016, but providing this information has been optional, not mandatory, for the visa waiver application process. The notice purports to protect privacy of applicants, stating that consular officers “will not request user passwords and will not attempt to subvert any privacy controls the applicants may have implemented.”
Also, the travel questions relate to both international and domestic travel, with a stated goal being to determine whether the applicant has been in an area while it was under the operational control of a terrorist organization; also, applicants may be asked for details and supporting documentation.
Finally, in order to address concerns that the additional information will be used in a discriminatory manner, the notice states that visas may not be denied, and further that the collection of social media platforms and identifiers will not be used to deny visas, “on the basis of the applicants’ race, religion, ethnicity, national origin, political views, gender, or sexual orientation.”
The DOS guidance does not simply repeat the countries targeted by the travel ban executive order (Iran, Libya, Somalia, Sudan, Syria and Yemen). Instead, it indicates that consular officers at posts “worldwide” will ask the questions when they determine the application requires greater scrutiny. It is unclear whether the additional vetting will apply to only some or all nationals of the targeted countries. We will continue to monitor for future developments as this guidance moves past public comments and closer to implementation. Should you have any additional questions on this DOS memorandum, please contact your team at Jackson & Hertogs.