As an immigration attorney, I often help U.S. citizens to bring a fiance/fiancee to the United States. The Immigration and Nationality Act (the “I.N.A.”) allows U.S. citizens (petitioners) to petition for alien fiancé(e)s, spouses, and minor children (beneficiaries) to immigrate to the United States. However, some petitioners have criminal histories that could put these beneficiaries at risk of abuse. The International Marriage Broker Regulation Act of 2005 (IMBRA) was enacted to minimize domestic violence and abuse against beneficiaries by petitioners, including those who met their foreign-born spouses through an international marriage broker (an “IMB”). International Marriage Broker Regulation Act
The IMBRA ensures that a beneficiary is informed if a petitioner has a criminal history or a history of filing multiple petitions for fiancé(e)s to immigrate into the United States. U.S. Citizenship and Immigration Services (“USCIS”), an agency within the Department of Homeland Security (the “DHS”); as well as the Bureau of Consular Affairs within the Department of State (the “DOS”) are mandated to tell beneficiaries of a U.S. citizen’s criminal background information, including any sex crimes.
To make disclosure, USCIS must obtain and furnish the petitioner’s criminal background information, along with the approved petition, to DOS, which is required to forward these materials to the beneficiary. DOS must also disclose the petitioner’s criminal background information to the beneficiary during the consular interview. While DOS is responsible for disclosing criminal background information to the beneficiary, IMBRA requires USCIS to inform beneficiaries if a U.S. citizen petitioned in the past ten years for an alien fiancé, spouse, or minor children. Violators of the IMBRA are subject to federal criminal and civil penalties.
USCIS is responsible for reviewing and making decisions on whether to approve or deny petitions filed by U.S. citizens requesting to bring an alien fiancé(e), spouse, minor child, or other alien relative to live permanently in the United States in accordance with the INA. Only U.S. citizens can request or petition for alien fiancé(e)s to immigrate to the United States.
The U.S. citizens must file Form I-129F, Petition for Alien Fiancé(e), with USCIS to enable their fiancé(e) to come to the United States as a K-1 nonimmigrant and then apply for permanent residence. U.S. citizens who have already married aliens abroad may also file Form I-129F to enable their spouse to come to the United States on a K-3 nonimmigrant visa and then apply for permanent residency. The purpose of the Form I-129F is to establish the relationship of the petitioner to the beneficiary who wishes to immigrate to the United States. For K-1 fiancé(e) petitions, the petitioner must establish that the petitioner and fiancé(e) are free to marry and that they have previously met in person within two years of filing the petition. For K-3 spouse petitions, the petitioner must establish the bona fide marital relationship to the beneficiary.
The adjudication process will happen in a series of steps, handled first by USCIS and then by DOS. Here is how these agencies will handle their responsibilities under IMBRA.
Two USCIS Service Centers, one in California and another in Vermont, process all I-129F petitions. As part of its I-129F petition review, USCIS obtains criminal history information for specified crimes from the petitioner and conducts background checks on both the beneficiary and petitioner. If the petitioner has ever been convicted of any of the specified crimes, the petitioner must provide USCIS with certified copies of court and police records showing the charges and dispositions for every such conviction.
USCIS conducts name-based background security checks — checks of a petitioner’s name and date of birth — against the Interagency Border Inspection System (IBIS). According to USCIS, IBIS queries include a check of five National Crime Information Center (NCIC) data files:
During a background security check, if an IBIS query returns a “hit” where the name and date of birth information entered returns a response from one or more of the databases and it appears the petitioner may have a criminal background, USCIS adjudicators forward this information to the Background Check Unit located within the Service Center. This unit conducts further system searches for verification of the criminal histories. After researching and summarizing the criminal information on the petitioner, if there is no national security or criminality issue requiring further investigation, unit staff notate their findings in a memorandum, which they send back to the adjudicator responsible for the file.
Under the Adam Walsh Child Protection and Safety Act of 2006, DHS is prohibited from approving any family-based petition, including a fiancé(e) petition, for any petitioner convicted of a specified offense against a minor unless the DHS Secretary, in his sole and unreviewable discretion, determines that the petitioner poses no risk to the beneficiary.
The petition instructions ask whether the petitioner has ever been convicted of any crimes as specified on the form and, if so, directs the petitioner to provide certified conviction information. As part of the adjudication process, USCIS conducts security checks on all petitioners. If relevant criminal history — such as information on domestic violence, sexual assault, child abuse, or homicide that was not otherwise disclosed by the petitioner — is uncovered during the security check, USCIS requests the petitioner to submit certified criminal conviction information before continuing with the adjudication of the case. If the petitioner does not respond to the request to provide additional information, the case is to be denied for failure to respond.
The I-129F petitions require petitioners to disclose additional information beyond criminal background information, such as their marital status and the number of prior I-129F petitions filed, approved, or denied. USCIS has a multiple-visa database (“CLAIMS”) to track petitioners who have filed and had two or more fiancé(e) or spousal petitions approved. USCIS uses this information to determine whether the petitioner has exceeded his or her IMBRA-established filing limits. If so, USCIS is to check to see if the petitioner requested a waiver of the filing limits. The Form I-129F instructions inform the petitioner of the filing limits and the need to request a waiver if the filing limits have been exceeded.
IMBRA limits the number of fiancé(e) petitions a person may file unless the petitioner requests and is granted a waiver of the filing limits by USCIS. The Form I-129F, Petition for Alien Fiancé(e) form asks whether the petitioner has ever previously filed for this or any other alien fiancé(e) or husband/wife. If the petitioner answers “yes,” USCIS initiates a check against CLAIMS to determine whether the petitioner had prior filings. If, however, the petitioner answers “no,” USCIS is not required to initiate a check for multiple petition filings.
IMBRA mandates USCIS to notify petitioners, upon approval of a second visa petition, that their filing information is being tracked. In addition, after a second approval, upon filing of a third petition within ten years of the first filing, USCIS is to notify both the petitioner and beneficiary of the number of previously approved petitions filed by the petitioner. The instructions to Form I-129F inform the petitioner of the circumstances under which repeat filings will be tracked. In addition, Form I-129F requires the petitioner to be honest and truthful while completing the form.
DOS is responsible for processing all approved visa petitions received from USCIS and for determining whether to issue a visa to beneficiaries who are overseas, such as fiancé(e)s and K-3 spouses. Consular officers review approved petitions and supporting documentation, and determine whether the alien beneficiary meets admissibility requirements and can be issued a nonimmigrant visa to enter the United States. During the K visa interview beneficiaries are asked questions about circumstances under which the beneficiary and petitioner met.
Consular officers are required to disclose criminal history to beneficiaries on two separate occasions: (1) when the visa application instructions are mailed to the beneficiary and (2) during the consular interview in the beneficiary’s primary language. Once USCIS forwards the petitioner’s criminal conviction information to DOS, IMBRA requires that DOS tell the foreign-born fiance about this and any other information regarding any protection orders related to the petitioner. Further, IMBRA mandates that DOS ask beneficiaries whether an IMB facilitated their relationship. If so, DOS is to obtain the IMB’s name from the beneficiary and confirm whether the IMB gave the beneficiary all the information required by IMBRA, such as the petitioner’s marital, criminal, and protection order history.
IMBRA also requires IMBs to search the name of the U.S. client (potential petitioner) against the National Sex Offender Public Registry or relevant state sex offender public registries, and to collect background information from the U.S. client, including the client’s marital history and arrest and conviction information for specified crimes, and to provide this information to the foreign client (potential beneficiary). IMBs may not release the foreign client’s personal contact information to the U.S. client until the required disclosures have been made and the foreign client provides signed, written consent authorizing the IMB to release personal contact information to the U.S. client. IMBs are also prohibited from engaging in certain activities such as:
The purpose of IMBRA is to address issues of domestic violence and abuse against beneficiaries by petitioners, including those who met their foreign-born spouses through an international marriage broker. The law establishes a framework for checking all petitioners for prior criminal violations and prior visa filings, and requires USCIS to notify beneficiaries of the number of the previously approved petitions filed by the petitioner.
This information is general in nature and is not specific legal advice. It does not create an attorney-client relationship. For more detailed information regarding IMBRA and how it applies to you, please contact our office.