On January 4, 2006, the U.S. Congress passed the International Marriage Broker Regulation Act of 2005 (“IMBRA”) as part of the Violence Against Women and Department of Justice Reauthorization Act of 2005. The law went into effect on March 6, 2006. IMBRA includes provisions that place new obligations on “International Marriage Brokers” (“IMBs”) to collect substantial amounts of background information on U.S. clients and disseminate this information to its foreign clients. In addition, there are new provisions in IMBRA which limit the ability of U.S. petitioners to file multiple K1 visa applications.
IMBRA places two new restrictions on multiple K-1 visas in cases where the petitioner has:
1. Filed two or more K-1 visa petitions at any time in the past, or
2. Previously had a K-1 visa petition approved within two years prior to the filing of the current petition.
A waiver may be obtained, however. Factors the USCIS will consider in evaluating the waiver application include, but are not limited to:
• Whether unusual circumstances exist (e.g. death or incapacity of prior beneficiary(ies);
• Whether the petitioner appears to have a history of domestic violence;
• Whether it appears the petitioner has a pattern of filing multiple petitions for different beneficiaries at the same time, of filing and withdrawing petitions, or obtaining approvals of petitions every few years.
If the petitioner has a history of violent offenses, the USCIS will require “extraordinary circumstances” in order to grant a visa waiver.
I filed a K-1 petition a year ago that was approved by the USCIS, but I withdrew the petition before the case got to the Embassy. Do I need a waiver?
Yes. The statute refers to a “petition approved”, not to a “visa issued”.
I filed a K-1 petition a year ago, and I received a Request for Additional Evidence from the USCIS, but I withdrew the petition (and received confirmation from the USCIS) before the case was approved. Do I need a waiver?
No. Your prior petition was never approved, so the restriction does not apply to you.
I filed a K-1 petition a year ago, and I received a Request for Additional Evidence from the USCIS, but I never replied to it because my relationship had ended at this time. Do I need a waiver?
Probably not. The USCIS typically denies a petition if there is no reply to the RFE, but the absence of a reply merely requires he USCIS to make a decision based on the originally submitted information, so there is always a chance that the USCIS approved. You should check it before filing for a second visa.
18 months ago I filed a K-1 visa for my fiancée Veronica, and she came to the U.S., but she went back home after a month. Now I want to invite Veronica on a second K-1 visa. Do I need a waiver?
Yes. Under the current rules all previous petition attempts count the same, regardless of whether a previous beneficiary and the current beneficiary are one and the same person.
I am about to file a K-3 application for my wife, but I filed for a K-1 visa three years ago (no other K visa filings). Do I need a waiver?
No. K-3 visas do not count toward the numerical limitations.
I filed two K-1 visa applications in the past, one three years ago and the other seven years ago. One application was denied by the INS, and the other one I withdrew before the INS approved it. Do I need a waiver?
Yes. You have two filed petitions in the USCIS (formerly INS)’s records. You must request a waiver.
Petitioners who have previously been convicted of the following crimes must submit with the I-129F petition certified copies of all court and police records showing the charges and dispositions for every conviction:
• Domestic violence, sexual assault, child abuse and neglect, dating violence, elder abuse, and stalking. The term “domestic violence” includes felony or misdemeanor crimes of violence committed by a current or former spouse of the victim, by a person with whom the victim shares a child in common, by a person who is cohabitating with or has cohabittated with the victim as a spouse, by a person similarly situated to a spouse of the victim under the domestic or family violence laws of the jurisdiction receiving grant monies, or by any other person against an adult or youth victim who is protected from that person’s acts under the domestic or family laws of the jurisdiction.
• Homicide, murder, manslaughter, rape, abusive sexual contact, sexual exploitation, incest, torture, trafficking, peonage, holding hostage, involuntary servitude, slave trade, kidnapping, abduction, unlawful criminal restraint, false imprisonment, or an attempt to commit any of these crimes.
• Crimes relating to a controlled substance or alcohol on three or more occasions, and such crimes did not arise from a single act.
The information obtained is passed along to the fiancée as well (at the time of the visa interview).
I was the subject of a restraining order when my previous wife and I were getting divorced. Do I have to declare this on the I-129F?
Probably not. Most restraining orders do not entail a criminal conviction. Every case has to be evaluated under it’s own facts and within the laws of the subject jurisdiction, however, to make sure there was no conviction in the case.
I have a previous domestic violence conviction, but I’ve never filed a K-1 visa petition before. Do I need a waiver?
No. Waivers are required only in the context of the multiple K-1 visa filing restrictions (discussed above). However, if you have filed two or more K-1 visa petitions at any time in the past, or previously had a K-1 visa petition approved within two years prior to the filing of the current petition, and you have a “history of violent criminal offenses against a person or persons,” you will face a heavier burden in convincing the USCIS that you should receive a waiver than a person without such a conviction.
I was convicted of attempted manslaughter in 1999, but I took “deferred adjudication”, which the judge and my criminal lawyer assured me would result in my record being wiped clean in 5 years. Now I have a clean record. Do I have to disclose this conviction?
Yes, you do. Deferred adjudications are treated as convictions under U.S. immigration law.
International Marriage Broker Defined
The definition of International Marriage Brokers in IMBRA covers virtually all for-profit matchmaking entities, whether U.S. based on not, whose main business is the facilitation of dating or like services between U.S. citizens and foreigners. The definition excludes matchmaking sites whose principal business in not providing dating services between U.S. residents and foreign clients and which charges like fees for its services regardless of the gender or national origin of the client.
International Marriage Broker Obligations
Before an IMB can release the personal contact information of a foreign client to a U.S. client, the IMB must:
• Search the National Sex Offender Registry to determine the record of the U.S. citizen, and disclose any information found concerning the U.S. citizen to the foreign client
• Obtain a signed statement from the U.S. citizen revealing any current or past protection or restraining order, most criminal arrests and convictions, virtually all arrest or convictions for domestic or sexual offenses, multiple convictions for substance and/or alcohol abuse, the U.S. client’s marital history (including the reason for termination of any prior marriages), the ages of any of the U.S. citizen’s children under the age of 18, and a list of all States and counties that the U.S. citizen has lived in since the client was 18 years of age.
• Distribute to the foreign national a pamphlet currently being developed by the U.S. government to educate foreign fiancé(e)s about U.S. domestic abuse laws and resources for immigrant victims in the U.S.; and
• Obtain the foreign national’s written consent to disclosing her personal contact information.
IMBRA and Initial Contact With the Fiancee
The background information must be provided before the foreign client’s personal contact information may be released to the U.S. client. Additional information must be provided by the IMB to ensure that the foreign national is aware of his/her (for simplicity’s sake, we will adopt the female gender henceforth for the beneficiary, and the male for the petitioner) immigrant rights in the U.S. and her ability to defend herself against domestic abuse. At the consular level, all K1 visa beneficiaries will be asked during the visa interview whether they became acquainted with their U.S. citizen fiancé(e) through an IMB, and if so, whether the IMB complied with the various disclosure obligations of IMBRA.
K Visa Interview Changes
The U.S. consul must ask the fiancé(e) during the Embassy/Consulate interview whether an IMB facilitated the couple’s relationship, and if so, the consul must determine the name of the IMB and confirm that the IMB acted in accordance with the new requirements regarding information gathering and disclosure, as well as pamphlet dissemination.
The new rules will have a substantial impact on K1 petitioners who met through international marriage brokers. It should not affect petitioners who met though services like Yahoo! Personals which provide contact services with foreign nationals as an incidental part of their services. The fiancé(e) will be asked in every instance whether she met her fiancée through a matchmaking site. If she replies untruthfully and is found out (a very real possibility), she will be denied the visa and barred from ever receiving a U.S. visa of any kind. If she admits to the means of acquaintance, but can not convince the consular officer that the marriage agency provided her with the required disclosures, the visa may be refused.