DOS Offers Guidance to Derivative Beneficiaries Completing Form DS-160

How a derivative beneficiary (of an immigrant petition) should answer the question on a DS-160 nonimmigrant visa application, “Has an immigrant petition ever been filed on your behalf” is not clear and often perplexing. On its face, it appears that if the derivative beneficiary (spouse or child) was listed on an immigrant visa petition (e.g., I-140), the answer is “yes.” Recently, however, the State Department’s Visa Office confirmed that it is acceptable for a spouse or child of a principal foreign national to answer “no” to the question. Further, DOS confirmed that there would not be any negative implications if a derivative beneficiary does not disclose this information on the DS-160 application. Conversely, responding “yes” does correctly indicate that an applicant is a derivative beneficiary on an immigrant petition for a future immigration benefit. A derivative beneficiary named on an immigrant petition may respond “yes” or “no” to this question and either response does not result in misrepresentation. It should be noted that this clarification is from DOS and not from USCIS, which includes a similar question on its Form I-539.