DS-160 Forms: Ensure Information Is Complete and Accurate to Reduce Possibility of Administrative Processing

 Applications for employment-based nonimmigrant visas (such as an H-1Bs, L-1s, E-3s) at U.S. consulates abroad are increasingly being put in “administrative processing,” wherein the case is put on hold indefinitely after the applicant attends the in-person interview. The applicant is usually given a document by the consular officer stating that the application is being “refused” pursuant to section 221(g) of the Immigration & Nationality Act, until administrative processing is complete. The document may or may not request additional documents/information, and there is no guaranteed timeframe for an expected answer from the consulate. It may be several weeks, or even months, before the applicant receives a decision on the case, which could be a denial of the visa. 

There are a variety of reasons (national security, independent verification of petition details) why a visa application may be refused under section 221(g), and the consular officer is not obligated to provide justification for the additional administrative processing. However, it does appear that recent increases in 221(g) issuance are due to inconsistencies or omissions from the DS-160 form submitted prior to the visa interview. This is particularly likely in cases where the officer asks for little or no documents/information from the applicant during the interview – consular officers are increasingly relying solely on the DS-160 form, and less on documents brought in by the applicant during the visa appointment.

It is more important than ever, therefore, to ensure that the DS-160 form being submitted is complete and accurate. At the very least, the information in the form should be consistent with the petition submitted by the employer and approved by USCIS – significant differences in title, salary, work location, and job description from the I-129 petition would clearly raise issues.

However, officers are increasingly scrutinizing information provided in the DS-160 that may not relate to the current employment at all, such as the applicant’s education history and work experience – these sections of the form are becoming a particular focus for the government, especially as it targets specific schools and companies with histories of violations or suspicious behavior. When the DS-160 requests that the applicant list any educational institutions at a secondary level or above, for example, omitting a university could lead to administrative processing or denial, even if the applicant did not obtain a degree from the omitted school, and even if the program of study had no relation to the current occupation. Likewise, a case could be put in administrative processing if the five-year employment history is incomplete, or if the position descriptions (title, duties, start/end dates) are inconsistent with the approved non-immigrant petitions.

In addition, an incorrect answer to the question, “Have you ever been unlawfully present, overstayed…or otherwise violated the terms of a U.S. visa?” has become a common source of administrative processing inquiries. While the instinct of most applicants is to answer “no” to this question, doing so incorrectly could jeopardize the visa application more than an affirmative answer, if the officer believes the applicant is lying or trying to obscure something. If, for example, the applicant has ever had a change of status request denied on the grounds that USCIS determined his or her previous status had not been properly maintained, then the answer to this question is “yes,” because the failure to maintain status is a violation of the visa terms. The visa can still be issued by the consulate in this situation, particularly if the applicant took action to remedy the status violation by departing the U.S. quickly, and is forthcoming in the DS-160 and interview about the violation – this is because the threshold for barring admission due to unlawful presence in the U.S. is 180 days.

However, if the applicant fails to select “yes” on the DS-160 form, and/or is evasive concerning the violation during the interview, the officer is much more likely to put the case in administrative processing, and to deny the visa on grounds of fraud or misrepresentation. A determination of fraud or misrepresentation is much more difficult to overcome than a status violation or period of unlawful presence of 180 days or less, and can jeopardize all future travel to the U.S.

In many cases, applicants may not realize whether they have technically been unlawfully present in the U.S. or violated their visa terms, especially if the visa petition was approved by USCIS without the I-94 attachment. Applicants also may not be aware of the importance of listing all educational institutions they have attended, for example, if they assume only relevant degree information is required. However, inadvertent errors or omissions can still significantly delay processing, and as technology increasingly enables government agencies to cross-check and verify data, the completeness and accuracy of any information that applicants submit is becoming more crucial. Applicants should carefully review the DS-160 form prior to submission and should consult an attorney if they are unclear or uncertain about their responses.

By: Rebecca Chen

Rebecca is a partner at Reddy & Neumann and has been with the firm since 2009. Her practice includes non-immigrant and immigrant visa petitions.

 

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