Background
Applicants for nonimmigrant visas at U.S. consular posts abroad must complete an online Form DS-160. One of the questions on the form asks whether an immigrant petition has been filed on the applicant’s behalf. If the applicant is the principal beneficiary of an immigrant petition, the answer to the question is clearly “yes.” Less clear, however, is how a derivative beneficiary (the spouse or minor child of the principal beneficiary) should respond to this question. On the one hand, an immigrant visa petition is not filed directly on a derivative beneficiary’s behalf, but on the other, the names of derivative beneficiaries are included on the immigrant visa petition. Because of this, there are two schools of thought about how a derivative beneficiary should answer this question. The divergence in views is based on whether one believes it is more appropriate to take a strict, legal approach to the question or to respond in a manner that favors disclosure of information that may be relevant to eligibility for a nonimmigrant visa.
Consular officers have expressed a clear preference for disclosure of information in this situation. At the AILA Annual Conference in June 2018, a representative from the Department of State (DOS) agreed during the DOS Open Forum that a negative response to the DS-160 question is technically correct but expressed the opinion that limiting information in this respect could be viewed by a consular officer as “over lawyering” the response.
In June 2018, DOS amended 9 FAM 302.9-4(B)(8) to state that “[a] n applicant who is the spouse or child of the principal beneficiary of a petition, even when named in the petition, would not make a misrepresentation by answering “no” to this question.” While this amendment is helpful, it leaves open the more fundamental question of how a derivative beneficiary should answer this question given DOS’s apparent preference for disclosure of information.
Confirmation from the Fall 2018 DOS Liaison Meeting
In a meeting with the AILA DOS Liaison Committee on October 18, 2018, the Visa Office confirmed that it is acceptable for a spouse or child of a principal alien to answer “no” to the question about whether an immigrant petition has been filed on the applicant’s behalf even if he or she is named as a derivative beneficiary in an immigrant petition.[3] DOS also confirmed that no negative inferences should be made if a derivative beneficiary does not disclose this information on Form DS-160.
Conclusion
Although DOS confirmed that a negative response is appropriate, an affirmative response is not, per se, incorrect. Responding affirmatively provides an applicant with additional space to explain that he or she is a derivative beneficiary on an immigrant petition that may create a future immigration benefit, while explaining the present intention to comply with the terms of the nonimmigrant classification sought. Thus, when completing Form DS-160, a derivative beneficiary named on an immigrant petition may respond negatively or affirmatively to this question, with neither response resulting in a finding of material misrepresentation.
Source: AILA Doc. No. 18121932.
