Comments Submitted for New Visa Applicant Information Collection

This letter is in response to the Department of State’s request for comments on the 30-Day
Notice of Proposed Information Collection: Supplemental Questions for Visa Applicants.
The Niskanen Center has concerns about a number of substantive and procedural provisions in
the rule, detailed below. We conclude our comments with a list of recommendations:

• Provide more information about who may be subjected to more rigorous review and what
  objective standards should be used by a consular officer to determine whether an
  individual “appears” to need more rigorous evaluation;
• Provide more information about the scope of collected materials;
• Provide more information about what type of social media accounts must be provided;
• Clarify what pieces of information may provide grounds for visa denial if not provided;
• Clarify the standard of review consular officers should use when conducting a “more
  rigorous evaluation;”
• Provide an appeal process to rebut erroneous information gleaned from social media
  accounts; and
• Require an annual report detailing to whom rigorous evaluation was applied—including
  country of origin, sex, race, and religion—what information was collected, and the
  outcome of the visa application.

For your consideration, we submit the following comments for your review.

I. Define the scope of each type of information collected, including examples of sufficient evidence.

The procurement of additional documentation that helps identify and thoroughly vet visa
applicants is in the interest of our national security, provided the collection of information is
thoughtful and efficient.

Additional documentation becomes counterproductive and unnecessarily onerous when the scope
of collected information is ill-defined. Specifying what information is necessary, and what type
of evidence (oral or documentary) is necessary to fulfill the requirements is critical to ensuring
the standards are not applied discriminatorily or arbitrarily.

For instance, clear guidance determining how an individual can demonstrate the “source of
funding for travel” will ensure that consular officers have a standard by which to review the
information. Whether this includes bank statements, an affidavit, or credit card receipts could
mean the difference between an abundance of useless information and an efficient review.

Additionally, social media information requests should specify the specific platforms and
identifiers being requested . For example, requesting Twitter and Facebook handles is
reasonable, whereby requesting an exhaustive list of accounts that may include, for example, an
old Myspace account or a Pinterest username would not only be useless, but will clutter the
information that a consular officer must review and place an undue burden on individuals who
cannot be reasonably expected to provide a truly exhaustive list.

II. Increasing the effective standard of review is unnecessary and ineffective.

Specifying ‘a more rigorous evaluation of applicants’ effectively institutes a higher standard of
review than that mandated by Section 291 of the Immigration and Nationality Act (8 U.S.C.
§1361). The statute specifies that the “burden of proof shall be upon such person to establish that
he is eligible to receive [a visa], or is not inadmissible […] and, if an alien, that he is entitled to
the […] status claimed.” The statute further establishes that an applicant must meet that burden of
proof “to the satisfaction of the consular officer.”

Subjecting certain applicants to a “more rigorous” evaluation standard could have two possible
implications: 1) it could effectively raise the evidentiary standard for a subset of applicants by
suggesting that those applicant must more than satisfy the consular officer; or 2) it could sustain
the current standard but with a greater amount of evidence collected from that subset. For
reasons detailed below, additional guidance is needed to ensure that the latter is the only effect
and that the standard of proof is not effectively increased.

The burden of proof established by current standards balances the need to identify reasons an
applicant may be ineligible for a visa with the benefits associated with granting a visa to a desirable applicant. In other words, a standard of review should be sufficiently rigorous to screen
out applicants who pose a threat to national security, while not being so onerous as to
significantly deter lawful migration or screen out many applicants who pose no threat.

That balance is promoted under the present standard, established by statute, wherein the consular
office denies an application if an applicant fails to establish “to the satisfaction of the consular
officer” that he is eligible to receive a visa or other document for entry, or is not inadmissible.

No evidence is promulgated indicating that the current consular evaluation is inadequate, nor
does evidence exist suggesting that ‘a more rigorous evaluation’ that raises the standard of
review will result in a more optimal balance between screening out migrants who pose a risk and
facilitating migration that is in the national interest. The most realistic consequence of effectively
increasing the burden of proof is that it will result in discriminatory or arbitrary application of
additional evaluation criteria, increase work for consular officers and embassies, and ‘chill’ or
depress lawful immigration.

On its face, the two standards seem relatively similar; however, in practice, they are not. Where a
consular officer is expected to apply one standard of proof, he may use all available evidence
accompanying a given petition to make a judgement about whether he is satisfied that the
applicant is in fact eligible for a visa. But where a consular officer is expected to apply a stricter
standard of proof in a subset of cases, eligible applicants will fail the rigorous evaluation even
when the consular officer is satisfied that the applicant is eligible.

III. The proposed collection of information will result in a substantially longer time and cost burden and will likely decrease the quality and clarity of the information collected.

An application for a visa consists of two aspects of evidentiary value: 1) documentation, and 2)
the interview; the only evidence that can adequately satisfy a more rigorous evaluation is
additional documentation.

Pursuant to U.S. law, all consular officers responsible for adjudicating visa applications must
receive specialized training in effectively screening visa applicants. Additionally, the consular
officers receive training in detecting fraudulent documents and general document forensics.
Training also includes working with immigration officers conducting inspections of applicants
for admission into the United States at ports of entry.

Consular officers are trained to quickly assess the unique circumstances of a case to assess the
purpose, profession, travel history, family, and finances of an applicant, supplementing their
assessment with questions during an interview. Documents provided by applicants may help to
assess their purpose and intent, but often are not the most effective technique for determining
eligibility.

Requiring applicants to provide additional documentation is burdensome. Practically, many
applicants do not have access to necessary documentation, and documents are often in their
native language, which isn’t easily translatable to the consular officer. Additionally,
documentation may be more irregular, less uniform, or harder to obtain in numerous countries of
origin. Finally, excess documentation can become overly burdensome for the consular officer to
review, and will add significant processing delays, due to review time and record keeping.

Not only is additional documentation unnecessary for consular officers, there is no evidence that
it is necessary. In 2015, over 1 million applications for immigrant and nonimmigrant status were
denied for failure to comply with provisions of the Immigration and Nationality Act (INA); in
total, over 3.3 million applications were denied, based on over 3.4 million determinations of
ineligibility grounds, suggesting that our review procedures are thorough.

Even if the assertion exists that supports the need for increased capture of erroneous applications,
there is no evidence suggesting that more rigorous evaluation will effectively increase accuracy
in identifying ineligible applicants. More likely, the burden will operate as a bar to some number
of legitimate immigrant applicants. No evidence has been promulgated suggesting that the
benefits from increased identification of ineligible applicants outweighs the costs of increased
denials of eligible applicants.

Altering the review process in this way hamstrings the ability of consular officers to use their
experience and discretion, will take up an increasing proportion of their time sifting through new
documents they have not previously needed, and will not meaningfully promote safety.

IV. Standards for collection and use of social media should be required prior to
implementation.

The use of social media is a key vehicle for delivering and acquiring information quickly and
reliably, making it prudent for background analyses to use social media as an element in the broader concept of collecting information. However, any assessment of social media must
include careful consideration of the relevance of various behaviors on social media, the
credibility of statements made on social media, and the potential for bias and false assumptions
among those processing social media data, as with all other sources of complication.

Ensuring data quality, source credibility, and addressing potential bias is critical to ensuring that
immediacy does not outweigh accuracy. The risk of failing to institute safeguards and checks is
that erroneous or misleading information can be gleaned that may be difficult for an applicant to
rebut. The widespread use of sarcasm, deadpan, irony, obscure references, and outright
provacateurship can make it difficult to assess the intent of comments made on social media.
Additional guidance is needed to ensure there are protections for eligible applicants whose social
media behavior could be misinterpreted.

Platforms that encourage more interactivity and freedom often have the fewest traceable
qualities. On these sites, for example, an “About me” section on Facebook or Twitter rarely
offers any true information about the author. When evaluating information collected from social
media, it is important to take the time to validate the content and evaluate the sources, which
requires development of a robust methodology.

Standards guiding the level of review, as well as the weight of information gleaned from social
media are critical to ensuring that social media becomes a useful tool in background checks,
rather than one that leads to denials of eligible applicants who pose no serious risks.

V. The Department of State should provide an annual report detailing the visa applicants required to submit additional information, the type of information requested, details of the submission, country of origin, and the outcome of the determination.

Requiring an annual report detailing the methodology and outcomes of the proposed collection
framework will act as a safeguard against discriminatory or arbitrary practices, ensure that the
safeguards are working as intended, help assess the costs and burdens associated with the new
documentation, and will help determine the overall effectiveness of the measures.

Recommendations

• Provide more information about who may be subjected to more rigorous review and what
  objective standards should be used by a consular officer to determine whether an
  individual “appears” to need more rigorous evaluation;
• Provide more information about the scope of collected materials;
• Provide more information about what type of social media accounts must be provided;
• Clarify what pieces of information may provide grounds for visa denial if not provided;
• Clarify the standard of review consular officers should use when conducting a “more
  rigorous evaluation;”
• Provide an appeal process to rebut erroneous information gleaned from social media
  accounts; and
• Require an annual report detailing to whom rigorous evaluation was applied—including
  country of origin, sex, race, and religion—what information was collected, and the
  outcome of the visa application.

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