“Looking for Some Good Migrations…” (Series)

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(Photo: Pixabay)

Former General Counsel of the U.S. Immigration & Naturalization Service answers pressing questions in the new series “Looking for Some Good Migrations”.

As part of its promised “enhanced vetting,” the Trump administration has now signed off on a new, much more detailed supplementary visa questionnaire. Fortunately, not everyone will be required to complete the new form. Only those visa applicants whom the U.S. Consulate deems as requiring additional screening will now be expected to complete the Form DS 5535 before they can obtain their visas.

The supplemental questionnaire will include questions about the applicant’s: (1) travel, address, and employment history during the last 15 years; (2) all passport numbers and country of issuance held by the applicant; (3) names and dates of birth for all siblings, children, and all current and former spouses, or civil or domestic partners; (4) social media platforms and identifiers (or handles), used during the last 5 years by the applicant; (5) phone numbers and email addresses used during the last 5 years; and (6) about how the traveler is funding their planned trip to the U.S.

(Photo: Pixabay)

Even more challenging, you won’t know if you must complete the DS 5535 until you arrive and begin your visa interview. The questions may be posed verbally or in writing by the Consular officers (please see https://tr.usembassy.gov/supplemental-questions-visa-applicants-ds-5535/ just issued by the U.S. Consulate in Istanbul, Turkey; it does not appear the U.S. Consulate in Lima has yet issued guidance on its use of the DS 5535).

Completing your initial DS-160 (Non-Immigrant) and DS-260 (Immigrant) visa applications will be more important than ever if you want to avoid the Form DS 5535 process entirely. The Supplemental Questionnaire will only be given to applicants to fill out when Consular officers determine that the information requested is needed to either confirm an individual’s identity or when “more rigorous” national security vetting is deemed necessary. Filling out the Form DS 5535 is technically voluntary, but those who fail to provide the requested information run the risk of seeing their applications delayed or denied. If you are required to have to provide this additional information, you can only provide your responses by returning the answers post-interview to the Consulate, which will delay visa decisions for those travelers for sure!

The State Department is not planning to issue additional guidance about the questionnaire, noting the Form DS 5535 “includes instructions.” As such, visa seekers should not count on the local Consulate to help ease feelings of uncertainty surrounding whether you will be required to complete the new form.

In its publication of this new process, the U.S. Government predicted that it would affect only 65,000 travelers from now until November (when the program is currently scheduled to end), but observers like me, expect it to be much more widely employed by U.S. Consulates around the world. As a result, more visa delays, and certainly more visa denials are likely, and applicants need to prepare themselves for being asked these additional questions.

Questions from last month’s article:
Q: “I have been traveling in and out of the United States several times per year for the past twenty years. Are you saying that your extra questions this trip are the new norm? If so, it has not been my experience at all. I have only had them take my form and signal for me to keep going. My ports of entry this year have been Newark and Houston and I have noticed a significant change in Houston for customs enforcement. You no longer give the customs card to the agent and about 95% of the people just keep walking with no interaction with the customs officer at all other than walking through the new zig zag lines.”

A: The specific guidance for “enhanced screening” just came out, so I think people (including U.S. citizens) will start seeing more of this type questioning in the coming months. Further, each port of arrival conducts its operations differently based on what they perceive to be the threats in their location. I still believe that being stopped and asked questions will be the exception for Americans, but it will clearly be the rule for those who are coming to the U.S. as visitors or to work. If everyone just accepts this as a new reality, when it happens, you can all take it in stride, be calm, and not suffer any unwanted delays.
As for what you are experiencing in Newark and Houston, that only applies to the additional Customs line. In certain international airports, CBP has now merged the Immigration and Customs processes and if you have nothing to declare, you only stop at the Immigration counter. Absent them seeing something they don’t like when you leave the Arrival Hall (or for random screening), you are no longer stopped in those designated airports after you have collected your bags (but remember, it’s not all U.S. airports and CBP changes airports they employ this at, so you never know when they will inspect your bags).

Q: “I am an American citizen living in Peru. My husband is an American citizen and a Peruvian citizen. In the past, he has left Peru using his Peruvian passport and entered the U.S. using his American passport, and the reverse when we return. Can we continue to use this system?”

A: Yes. But if you are an American citizen, you must always use your U.S. passport to enter and leave the United States; your husband is free to then use his Peruvian passport to enter and leave Peru, and may, in fact, be required to do so under Peruvian law (please make sure to check with a Peruvian immigration lawyer to confirm).

Q: “I have been considering becoming a Peruvian citizen but I read that if I choose citizenship in another country I can possibly lose my American citizenship. While my husband can have dual-citizenship, is it different for me because I will be making a choice?”

A: Generally, the U.S. accepts Americans becoming dual nationals under most circumstances (see, https://travel.state.gov/content/travel/en/legal-considerations/us-citizenship-laws-policies/citizenship-and-dual-nationality/dual-nationality.html). The limiting factor is whether your intent in accepting the nationality of another country is to abandon or otherwise give up your U.S. nationality (please make sure you check with a U.S. immigration lawyer before you take any such action).

Q: “What if you have family/friends in both US and Peru, and wish to go back and forth at will during your ‘golden years’ of retirement?”

A: If you are an American citizen, then currently you do not require a Peruvian visa to visit Peru and can stay up to 183 days (however, your stay cannot be extended and your visit is for a single entry only; you should check with a Peruvian immigration lawyer if you want to work or remain for a longer period, as that requires something other than a tourist visa).
If you are a Peruvian, then you will require a U.S. visa even to visit America as a tourist, much less to work in the U.S. Most Peruvians who travel frequently to the U.S. do so as tourists and many have multi-year, multiple re-entry visas to facilitate those frequent visits (you can find out more information about U.S. visas at https://pe.usembassy.gov/visas/, and by contacting a U.S. immigration lawyers).

©Global Migration Law Group, PLLC

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William Cook

William P. Cook (william.cook@gmlgvisas.com) is the former General Counsel of the U.S. Immigration & Naturalization Service (INS). Previously, he was a partner in DLA Piper LLP (US), where he Chaired the Communications, E-Commerce, and Privacy practice group, and was Co-Chair of the U.S.-India practice. A former attorney with the Civil and Criminal Divisions of the U.S. Department of Justice (DOJ), his government service also includes intelligence community assignments at the National Security Agency (NSA) and in the Office of Intelligence Policy and Review (OIPR) in DOJ. A retired commander in the U.S. Navy, Mr. Cook is a decorated combat veteran of Operation Desert Storm, combat operations in Grenada and Lebanon, and served on the Sixth Fleet Counter-Terrorism Task Force