On April 28, the U.S. Department of State issued a cable directing consular officers who adjudicate U.S. visa applications at U.S. Embassies and Consulates outside the U.S. to ask nonimmigrant visa applicants two asylum-related questions during nonimmigrant visa interviews. These questions are intended to assess whether an applicant may seek asylum, which could potentially provide a path to work authorization and permanent residence, after entering the United States.

Specifically, under the new guidance, consular officers are directed to ask the following two new questions:

1. “Have you experienced harm or mistreatment in your country of nationality or last habitual residence?”
2. "Do you fear harm or mistreatment in returning to your country of nationality?”

An applicant who answers “yes” to either question (or merely declines to respond) will be refused a nonimmigrant visa on the basis of immigrant intent. That is, a stated fear of returning to one’s home country may be viewed as inconsistent with the temporary intent required for most nonimmigrant visa classifications. According to the directive from the Department of State, the new questions are designed to curb the misuse of asylum claims. 

Statements made during visa interviews may also be reviewed in future immigration matters, including asylum applications. Any inconsistencies between visa interview responses and later filings, particularly in connection with potential future asylum applications, may raise credibility concerns or issues of misrepresentation. These new questions are not currently incorporated into the Form DS-160, the online form submitted by all applicants for a U.S. visa, but consular officers are expected to record applicants’ responses in case notes for future reference.

At this time, it is unclear how consistently this guidance is being applied across consular posts or how broadly it will impact applicants. However, it may apply across a wide range of nonimmigrant visa categories, including visitor (B-1/B-2), student (F), exchange visitor (J), and employment-based classifications (e.g., E, H, L, O, P), as well as dependent applicants.

In short, applicants should expect these questions during nonimmigrant visa interviews and understand that their responses may carry significant consequences for visa issuance and future immigration matters.

We are monitoring this development and will provide updates as they become available. Please contact the Pryor Cashman Immigration Group with any questions as to how this may impact upcoming visa interviews or travel plans.

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Director of Government Affairs Philip Folkemer and Associate Jillian Banks were contributing authors to this client alert.