International Marriage Broker Regulation Act of 2005
Agencies Have Implemented Some, but Not All of the Act's Requirements Gao ID: GAO-08-862 August 8, 2008The International Marriage Broker Regulation Act of 2005 (IMBRA) was enacted to address issues of domestic violence and abuse against noncitizens (beneficiaries) married or engaged to U.S. citizens (petitioners) who have petitioned for them to immigrate to the U.S., including those who met through an international marriage broker (IMB). IMBRA mandated that GAO study the act's impact on the visa process for noncitizen spouses and fiance(e)s. This report addresses the extent to which the U.S. Citizenship and Immigration Services (USCIS), a component of the Department of Homeland Security (DHS); the Department of State (DOS); and the Department of Justice (DOJ) have implemented IMBRA, and the extent to which USCIS and DOS have collected and maintained data for this GAO report as required by IMBRA. To address these objectives, GAO reviewed the act and related legislation, analyzed IMBRA implementation guidance and available data on applications filed, and interviewed officials at USCIS, DOS, and DOJ.
USCIS, DOS, and DOJ have implemented two of seven key IMBRA requirements identified by GAO, but five key provisions intended to provide beneficiaries with information about the petitioners seeking to bring them to the United States have yet to be completed. First, although IMBRA requires DOS to mail a copy of the approved petition to each beneficiary, the agency is not currently fulfilling this requirement. Second, IMBRA limits the number of petitions a person may file for a noncitizen fiance(e) unless USCIS grants a waiver of the filing limits. However, USCIS officials told GAO that they do not check all petitioners against records to determine if a petitioner has previously filed a fiance(e) petition. USCIS adjudicators are required to check the record if the petitioner self-attests that he or she has previously filed a petition. By limiting its checks to those petitioners who acknowledge prior filings, USCIS increases the risk that it will approve more fiance(e) petitions than allowed under IMBRA. Third, IMBRA mandates that after two approved petitions, upon filing of a third petition within 10 years of the first, USCIS is to notify both the petitioner and beneficiary of previously approved petitions filed by the petitioner. USCIS officials told GAO that they no longer try to notify beneficiaries because of the difficulty in obtaining accurate overseas mailing addresses. Thus, beneficiaries are left without all required information for making a decision about the person petitioning on his or her behalf. USCIS officials told GAO that they plan to ask DOS to notify beneficiaries during their visa interview with a DOS consular officer. Fourth, the requirement to provide beneficiaries with a pamphlet that discusses the visa application process and available resources if the beneficiary encounters domestic violence or abuse is not being met. USCIS has drafted the pamphlet, but has not established time frames for finalizing the pamphlet. Until the pamphlet is finalized, translated, and distributed, USCIS increases the risk that beneficiaries are not being made aware of their rights or the resources that are available should they encounter domestic violence. Lastly, IMBRA establishes federal criminal and civil penalties for IMBs who violate its provisions. Although DOJ has drafted IMBRA-related regulations regarding how civil penalties would be administered, these regulations cannot be finalized until DOJ, USCIS, and DOS decide which agencies will be responsible for investigating, referring, and prosecuting potential IMBRA violations. Until the agencies resolve these issues and establish an enforcement framework, it will be difficult for IMBRA violators to be penalized. USCIS is collecting and maintaining some of the data for this report as required by IMBRA; however, most of the data are not in a summary or reportable form and other required data have not been collected. For example, GAO could not determine the extent to which petitioners with a criminal history or history of violence have filed petitions because USCIS does not capture this data electronically. USCIS officials told GAO that they are considering modifying their data management system to collect data that is currently not being collected. However, no decisions have been made.
RecommendationsOur recommendations from this work are listed below with a Contact for more information. Status will change from "In process" to "Open," "Closed - implemented," or "Closed - not implemented" based on our follow up work.
Director: Team: Phone:GAO-08-862, International Marriage Broker Regulation Act of 2005: Agencies Have Implemented Some, but Not All of the Act's Requirements
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Report to Congressional Committees:
United States Government Accountability Office:
GAO:
August 2008:
International Marriage Broker Regulation Act Of 2005:
Agencies Have Implemented Some, But Not All Of The Act's Requirements:
GAO-08-862:
GAO Highlights:
Highlights of GAO-08-862, a report to congressional committees.
Why GAO Did This Study:
The International Marriage Broker Regulation Act of 2005 (IMBRA) was
enacted to address issues of domestic violence and abuse against
noncitizens (beneficiaries) married or engaged to U.S. citizens
(petitioners) who have petitioned for them to immigrate to the U.S.,
including those who met through an international marriage broker (IMB).
IMBRA mandated that GAO study the act‘s impact on the visa process for
noncitizen spouses and fiancé(e)s. This report addresses the extent to
which the U.S. Citizenship and Immigration Services (USCIS), a
component of the Department of Homeland Security (DHS); the Department
of State (DOS); and the Department of Justice (DOJ) have implemented
IMBRA, and the extent to which USCIS and DOS have collected and
maintained data for this GAO report as required by IMBRA. To address
these objectives, GAO reviewed the act and related legislation,
analyzed IMBRA implementation guidance and available data on
applications filed, and interviewed officials at USCIS, DOS, and DOJ.
What GAO Found:
USCIS, DOS, and DOJ have implemented two of seven key IMBRA
requirements identified by GAO, but five key provisions intended to
provide beneficiaries with information about the petitioners seeking to
bring them to the United States have yet to be completed. First,
although IMBRA requires DOS to mail a copy of the approved petition to
each beneficiary, the agency is not currently fulfilling this
requirement. Second, IMBRA limits the number of petitions a person may
file for a noncitizen fiancé(e) unless USCIS grants a waiver of the
filing limits. However, USCIS officials told GAO that they do not check
all petitioners against records to determine if a petitioner has
previously filed a fiancé(e) petition. USCIS adjudicators are required
to check the record if the petitioner self-attests that he or she has
previously filed a petition. By limiting its checks to those
petitioners who acknowledge prior filings, USCIS increases the risk
that it will approve more fiancé(e) petitions than allowed under IMBRA.
Third, IMBRA mandates that after two approved petitions, upon filing of
a third petition within 10 years of the first, USCIS is to notify both
the petitioner and beneficiary of previously approved petitions filed
by the petitioner. USCIS officials told GAO that they no longer try to
notify beneficiaries because of the difficulty in obtaining accurate
overseas mailing addresses. Thus, beneficiaries are left without all
required information for making a decision about the person petitioning
on his or her behalf. USCIS officials told GAO that they plan to ask
DOS to notify beneficiaries during their visa interview with a DOS
consular officer. Fourth, the requirement to provide beneficiaries with
a pamphlet that discusses the visa application process and available
resources if the beneficiary encounters domestic violence or abuse is
not being met. USCIS has drafted the pamphlet, but has not established
time frames for finalizing the pamphlet. Until the pamphlet is
finalized, translated, and distributed, USCIS increases the risk that
beneficiaries are not being made aware of their rights or the resources
that are available should they encounter domestic violence. Lastly,
IMBRA establishes federal criminal and civil penalties for IMBs who
violate its provisions. Although DOJ has drafted IMBRA-related
regulations regarding how civil penalties would be administered, these
regulations cannot be finalized until DOJ, USCIS, and DOS decide which
agencies will be responsible for investigating, referring, and
prosecuting potential IMBRA violations. Until the agencies resolve
these issues and establish an enforcement framework, it will be
difficult for IMBRA violators to be penalized.
USCIS is collecting and maintaining some of the data for this report as
required by IMBRA; however, most of the data are not in a summary or
reportable form and other required data have not been collected. For
example, GAO could not determine the extent to which petitioners with a
criminal history or history of violence have filed petitions because
USCIS does not capture this data electronically. USCIS officials told
GAO that they are considering modifying their data management system to
collect data that is currently not being collected. However, no
decisions have been made.
What GAO Recommends:
GAO recommends that USCIS develop a timeline for finalizing the
pamphlet and mechanism to ensure all petitioners are checked for prior
filings and that all beneficiaries are notified about previously
approved petitioner filings, and that DHS work with DOS and DOJ to
develop a framework for prosecuting IMBRA violations. USCIS and DHS
concurred with GAO‘s recommendations.
To view the full product, including the scope and methodology, click on
[hyperlink, http://www.gao.gov/cgi-bin/getrpt?GAO-08-862]. For more
information, contact Richard M. Stana at (202) 512-8777 or
stanar@gao.gov.
[End of section]
Contents:
Letter:
Scope and Methodology:
Results in Brief:
Background:
Agencies Have Implemented Some, Not All, IMBRA Requirements:
Most of the USCIS Data Required for GAO Study Are Not in a Summary or
Reportable Form; Other Required Data Are Not Collected:
Conclusions:
Recommendations:
Agency Comments and Our Evaluation:
Appendix I: Summary of Selected IMBRA Requirements for USCIS, DOS, DOJ,
and IMBs:
Appendix II: Comments from U.S. Department of Homeland Security:
Appendix III: GAO Contact and Staff Acknowledgments:
Tables:
Table 1: Actions Taken by Agencies to Implement Selected IMBRA
Requirements:
Table 2: Summary Table of Data GAO Mandated to Report:
Figures:
Figure 1: I-129F Petition Filing and Visa Application Process:
Figure 2: Timeline Showing Key Steps in the Development of the
Information Pamphlet:
Abbreviations:
CLAIMS: Computer Linked Application Information Management System:
DHS: Department of Homeland Security:
DOJ: Department of Justice:
DOS: Department of State:
EOIR: Executive Office for Immigration Review:
INA: Immigration and Nationality Act:
IBIS: Interagency Border Inspection System:
IMB: international marriage broker:
IMBRA: International Marriage Broker Regulation Act of 2005:
OMB: Office of Management and Budget:
RPM: Regulation and Product Management:
USCIS: U.S. Citizenship and Immigration Services:
[End of section]
United States Government Accountability Office:
Washington, DC 20548:
August 8, 2008:
The Honorable Patrick J. Leahy:
Chairman:
The Honorable Arlen Specter:
Ranking Member:
Committee on the Judiciary:
United States Senate:
The Honorable John Conyers, Jr.
Chairman:
The Honorable Lamar S. Smith:
Ranking Member:
Committee on the Judiciary:
House of Representatives:
The Immigration and Nationality Act (INA) allows U.S. citizens
(petitioners) to petition for noncitizen fiancé(e)s, spouses, and minor
children (beneficiaries) to immigrate to the United States. Some
petitioners have criminal histories that could put these beneficiaries
at risk of abuse, such as sexual assault.[Footnote 1] The International
Marriage Broker Regulation Act of 2005 (IMBRA)[Footnote 2] was enacted
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 (IMB).[Footnote 3] Among other
things, IMBRA contains requirements that are intended to ensure that a
beneficiary is informed in the event that his or her 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) within the Department of Homeland Security
(DHS)[Footnote 4] and the Bureau of Consular Affairs within the
Department of State (DOS) play key roles in the disclosure of a U.S.
citizen's criminal background information, including sex crimes, to
beneficiaries protected by IMBRA. For the purposes of making this
disclosure, USCIS must obtain and furnish the petitioner's criminal
background information, along with the approved petition, to DOS, which
is to forward these materials to the beneficiary by mail. DOS, which is
responsible for reviewing beneficiary visa applications for approved
petitions for the purpose of issuing a visa, 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 who has been approved
twice before files another fiancé(e) or spouse petition within 10 years
of the first filing.
IMBRA also establishes disclosure and other requirements for IMBs to
help inform and provide greater assurance for the safety of noncitizen
fiancé(e)s who meet their U.S. citizen fiancé(e)s through an IMB. IMBs
who violate IMBRA's provisions are subject to federal criminal and
civil penalties. IMBRA makes the Department of Justice (DOJ)
responsible for the imposition of civil penalties after notice and an
opportunity for a hearing.
Section 833(f) of IMBRA mandated that GAO study the impact of IMBRA on
the visa process for noncitizen fiancé(e)s, including reporting
specific data USCIS and DOS were to collect and maintain for GAO to do
its study.[Footnote 5] Other information IMBRA required GAO to report,
such as the number of international marriage brokers doing business in
the United States and the extent of brokers' compliance with IMBRA, was
not available, and therefore we are not able to report such
information. In accordance with the congressional mandate and as
discussed with the offices of the Chairmen and Ranking Members of the
Senate and House Judiciary Committees, this report addresses the
following questions:
* To what extent have USCIS, DOS, and DOJ implemented the requirements
of IMBRA?
* To what extent have USCIS and DOS collected and maintained data for
GAO reporting as required by IMBRA?
Scope and Methodology:
To determine the extent to which USCIS, DOS, and DOJ implemented the
requirements of IMBRA, we reviewed the Act, its legislative history,
relevant provisions of the INA, and related legislation, the Adam Walsh
Child Protection and Safety Act of 2006[Footnote 6] which contains
provisions that may affect a petitioner's ability to have beneficiaries
immigrate. For purposes of this review, we summarized and grouped
IMBRA's requirements into seven key areas and identified the actions
taken and the actions remaining in each of the key areas. To determine
what actions had and had not been taken, we obtained and analyzed
pertinent documentation, such as USCIS's and DOS's IMBRA implementation
guidance for its adjudicators[Footnote 7] and consular officers,
respectively. We also interviewed cognizant officials at USCIS
headquarters and at its California and Vermont Service Centers--the two
service centers responsible for processing petitions for alien
fiancé(e)s; at DOS, and at DOJ. We interviewed three DOS Consular
Affairs Unit Chiefs by telephone and received written responses to our
questions from four other Unit Chiefs all of whom were responsible for
processing immigrant visa applications, including fiancé(e) visas.
These Unit Chiefs were at seven consular posts located in Bangkok,
Thailand; Bogotá, Colombia; Ciudad Juarez, Mexico; Guangzhou, China; Ho
Chi Minh City, Vietnam; Manila, Philippines; and Moscow, Russia. We
chose these posts because they issued about two-thirds of alien
fiancé(e) visas in fiscal year 2007. While information we obtained at
these locations may not be generalized across all consular posts,
because we selected the posts based on the volume of activity, we
believe the posts provided us with a general overview and perspective
on the implementation of IMBRA at the selected posts.
To determine whether USCIS and DOS have collected and maintained data
for our report as required by IMBRA, we obtained and analyzed available
data for fiscal years 2006 and 2007 on fiancé(e) petitions filed from
USCIS's application management system, and on visas issued to
fiancé(e)s from DOS's visa database. To determine the reliability of
data in USCIS's and DOS's database, we observed how petitioner data are
entered into USCIS's data system, reviewed pertinent USCIS and DOS
documents, and interviewed relevant USCIS and DOS officials. We
determined that the data we used from USCIS and DOS databases were
sufficiently reliable for purposes of this report. In addition, we
interviewed cognizant officials at DHS/USCIS in headquarters,
Washington, D.C.; at the California and Vermont Service Centers, and at
DOS. We conducted this performance audit from October 2007 to August
2008, in accordance with generally accepted government auditing
standards. Those standards require that we plan and perform the audit
to obtain sufficient, appropriate evidence to provide a reasonable
basis for our findings and conclusions based on our audit objectives.
We believe that the evidence obtained provides a reasonable basis for
our findings and conclusions based on our audit objectives.
Results in Brief:
USCIS, DOS, and DOJ have implemented some, but not all of the IMBRA
requirements that are designed to inform beneficiaries about the
persons petitioning for them to immigrate to the United States. Two of
seven key IMBRA requirements we identified--the disclosure of
petitioner criminal conviction information to beneficiaries and the
establishment of a database to track petitioners who have had multiple
fiancé(e) or spousal petitions approved--are being implemented by the
cognizant agencies, DOS and USCIS. USCIS and DOS also issued IMBRA-
related guidance to its USCIS adjudicators and DOS consular officers,
respectively. However, the following five key requirements intended to
provide beneficiaries with information to enable them to make informed
choices and provide certain protections under IMBRA have yet to be
fully implemented:
* Under IMBRA, DOS is required to mail to the beneficiary a copy of the
petition submitted by the petitioner, which is to include any criminal
background information, at the same time it mails the instruction
packet regarding the visa application process. Although DOS's guidance
does provide for the mailing of criminal background information to
beneficiaries, the guidance does not specifically require DOS to mail
beneficiaries a copy of the approved petitions, as required by IMBRA.
The petitions require petitioners to disclose additional information
beyond criminal history, such as their marital status and the number of
prior petitions filed, approved, and denied. Thus, while DOS' guidance
provides for the mailing of the criminal background information, not
sending the petitions themselves increases the risk that beneficiaries
may not be obtaining relevant non-criminal information about their
petitioners that could affect their immigration decision. During the
course of this engagement, DOS informed us that it will revise its
guidance to its consular officers requiring them to mail the I-129F
petition when mailing the instruction packet to beneficiaries.
* IMBRA limits how many times a person may petition for a noncitizen
fiancé(e). Unless USCIS grants a petitioner's request for a waiver of
the IMBRA filing limits, a person may only petition twice for a
noncitizen fiancé(e), with not less than 2 years between the filing of
the last approved petition and the current petition. However, USCIS
officials told us they do not check every petitioner against their
database to determine if the petitioner has previously filed a
fiancé(e) petition. Rather, USCIS adjudicators are generally required
to check the database if the petitioner self-attests that he or she has
previously filed a petition. According to USCIS, checking every name
against their database would require a significant amount of vetting to
try to determine if the petitioner matches any of those already in the
database, although USCIS officials acknowledge that more refined search
information could reduce the number of multiple hits. By limiting its
checks to those petitioners who acknowledge prior filings, USCIS
increases its risk that it will approve more fiancé(e) petitions than
allowed under IMBRA. USCIS's reliance on self-attestation not only
increases the risk of USCIS approving more petitions than allowed by
IMBRA, it also increases the risk that USCIS will not have accurate
multiple filer information to disclose to prospective beneficiaries.
* Under IMBRA, USCIS is required to disclose multiple filer information
to prospective beneficiaries if the petitioner has had two or more
fiancé(e) or spousal petitions approved and files again within 10 years
of the first filing. With respect to this disclosure requirement, USCIS
officials told us that they attempted to notify beneficiaries as
required. However, because of inaccurate addresses, a large number of
notifications were returned as undeliverable. USCIS officials said they
no longer try to notify beneficiaries directly; instead, officials told
us they plan to ask DOS to have its consular officers notify
beneficiaries of any previously approved petitions during the consular
interview. At the time of our review, DOS said it had not held a
discussion with USCIS about providing such notification. Until USCIS
finalizes a process with DOS to share information about prior petition
approvals, beneficiaries will not have all required information for
making a decision about the persons petitioning on his or her behalf.
* The requirement to provide beneficiaries with a pamphlet that
discusses the visa application process and available resources if the
beneficiary encounters domestic violence or abuse is not being met.
Although the pamphlet has been drafted and solicitation for public
comments announced in the Federal Register, USCIS has not established
time frames for finalizing the pamphlet. Until finalized, the pamphlet
cannot be summarized, translated into foreign languages, or distributed
as mandated by IMBRA. According to USCIS officials, ensuring
appropriate coordination with various USCIS and DHS components has, in
part, led to delays in finalizing the pamphlet. However, until the
pamphlet is finalized, translated, and distributed, USCIS increases the
risk that beneficiaries are not being made aware of their rights or the
resources that are available to them should they encounter domestic
violence.
* IMBRA establishes federal criminal and civil penalties for IMBs who
violate its provisions. However, DOJ, USCIS, and DOS have yet to
establish a framework for investigating, referring, and prosecuting
potential IMB violations of IMBRA for civil or criminal enforcement,
although the three are currently discussing these issues. While DOJ has
drafted regulations regarding the process for assessing any civil
penalties, DOJ cannot finalize these regulations until the agencies
agree upon an enforcement framework, including which agencies will be
responsible for investigating, referring, and prosecuting IMBRA cases.
It is important that DOJ, USCIS, and DOS continue their discussions and
collaborate to establish such an enforcement framework. Without such,
it will be difficult for IMBRA violators to be penalized.
USCIS is collecting and maintaining some of the data as required by
IMBRA. However, most of the data USCIS is collecting and maintaining
are not in a summary or reportable form, and other required data have
not been collected. Although IMBRA calls for both USCIS and DOS to
collect and maintain data for us to report, it primarily requires
petition-related data. Thus, USCIS would have responsibility for
collecting and maintaining this data which consists of 10 reportable
data elements. Of the 10 data elements, USCIS collected and maintained
complete data for 3 elements, partial data for 3 other elements, and no
data for 4 elements. As a result, we could not determine certain
things, such as the extent to which petitioners with a criminal history
or history of violence have filed petitions or been granted waivers of
IMBRA's multiple filing limits, because this data was not in a summary
or reportable form. USCIS officials told us that they are considering
modifying their data management system to collect data that are
currently not being collected; however, no decisions have been made.
To improve implementation of IMBRA, we are recommending that the
Director, USCIS develop:
* a mechanism to check all petitioners for prior K nonimmigrant filings
in order to determine if a petitioner exceeds the filing limits
established by IMBRA;
* a mechanism, in consultation with the Secretary of State, to notify
beneficiaries of the number of previously approved petitions filed by
the petitioner; and:
* a time frame for finalizing the information pamphlet so that it can
be translated and distributed as required by IMBRA.
To help ensure that penalties can be imposed on IMBRA violators as
provided for in the law, we recommend that the Secretary of Homeland
Security develop:
* a framework for the investigation, referral, and prosecution of
potential IMBRA violations in consultation with the Secretary of State
and the Attorney General.
We provided a draft of this report to the Secretaries of Homeland
Security and State and to the Attorney General for comment. We received
comments from DHS, which are reprinted in appendix II. DHS concurred
with our recommendations, but noted that the fourth recommendation
should be addressed to the Secretary, DHS, for action as opposed to the
USCIS Director. We modified the recommendation accordingly. DHS and
USCIS outlined actions they have begun to take to implement the four
recommendations. DOS also provided technical comments, which we
incorporated as appropriate. DOJ did not provide any comments.
Background:
USCIS is the agency responsible for reviewing and making decisions on
whether to approve or deny immigration benefit applications, including
petitions filed by U.S. citizens requesting to bring a noncitizen
fiancé(e), spouse, minor child, or other noncitizen relative to live
permanently in the United States in accordance with the INA. Only U.S.
citizens can request or petition for noncitizen fiancé(e)s to immigrate
to the United States. To do so, citizens must file a 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.[Footnote 8] U.S. citizens who have already married
noncitizens living 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 2
years of filing the petition.[Footnote 9] For K-3 spouse petitions, the
petitioner must establish the bona fide marital relationship to the
beneficiary.
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.[Footnote 10] If the petitioner has ever been convicted
of any of the specified crimes, the petitioner is to provide to USCIS
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).
[Footnote 11] According to USCIS, IBIS queries include a check of five
National Crime Information Center (NCIC)[Footnote 12] data files, which
include the Convicted Sexual Offender Registry; the Foreign Fugitive;
Immigration Violator; Violent Gang and Terrorist Organization; and
Wanted Persons files.[Footnote 13] 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.
While IMBRA requires USCIS to collect petitioner criminal history
information, we reported in 2006 that USCIS does not have general
authority to deny a family-based petition solely on grounds that the
petitioner has a criminal sexual history. Since we issued our report,
Congress enacted legislation limiting a petitioner's ability to
immigrate relatives, including fiancé(e)s. The Adam Walsh Child
Protection and Safety Act of 2006 prohibits DHS 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.[Footnote 14]
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
are responsible for reviewing (but not re-adjudicating) approved
petitions and supporting documentation, and determining whether the
noncitizen beneficiary meets admissibility requirements and can be
issued a nonimmigrant visa to enter the United States. As part of this
review, consular officers interview beneficiaries and ask questions
about how the beneficiary and petitioner met. Figure 1 shows the key
steps in the I-129F petition filing and visa application process,
including filing a petition with USCIS, conducting criminal background
checks, USCIS adjudication, and visa applicant interview by DOS.
Figure 1: I-129F Petition Filing and Visa Application Process:
[See PDF for image]
This figure is an illustration of the I-129F petition filing and visa
application process, as follows:
Fiancé(e) (Beneficiary from a foreign country); U.S. citizen
(Petitioner):
* File with USCIS;
* Interagency Border Inspection System (IBIS) preliminary background
check;
* Criminal information, possible match:
- Background unit investigates to verify name/record match;
- Criminal information match: information noted in file;
* Criminal information, no match:
- file sent to Adjudicator;
* Adjudicator:
- Requests information from petitioner on disposition of any
convictions;
- Verifies petitioner/beneficiary relationship;
- Checks Computer Linked Application Information Management System
(CLAIMS) for multiple visa petition filers;
- Conducts another IBIS background check;
* Adjudicator denies petition:
- Denial notice sent to petitioner; or:
* Adjudicator approves petition:
-file sent to U.S. State Department National Visa Center;
* Overseas consular office interviews beneficiary; any petitioner
criminal background information disclosed.
Source: GAO analysis of USCIS and State Department information; images
(Art Explosion); map (Map Resources).
[End of figure]
IMBRA also requires IMBs to search the name of the U.S. client
(potential petitioner) against the National Sex Offender Public
Registry[Footnote 15] 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 (1) providing personal contact
information of a foreign client to anyone other than the U.S. client
and (2) providing anyone with personal contact information or other
information about individuals under the age of 18. IMBRA establishes
federal criminal and civil penalties for IMBs that violate these
provisions. [Footnote 16] IMBRA-related criminal cases are to be
prosecuted by the U.S. Attorney's offices, possibly in coordination
with the Civil Rights Division or the Child Exploitation and Obscenity
section of the Criminal Division depending on the circumstances of the
case. With respect to IMBRA-related civil cases, the Attorney General
has statutory responsibility for imposing civil penalties after notice
and the opportunity for an agency hearing.[Footnote 17]
Within DOJ, its Executive Office for Immigration Review (EOIR) is
responsible for interpreting and administering federal immigration laws
and rendering adjudicatory decisions on specific immigration cases.
Within EOIR, the Office of the Chief Administrative Hearing Officer is
responsible for hearing civil cases related to administrative fines
that may be imposed under the INA. For a summary of selected IMBRA
requirements for USCIS, DOS, DOJ, and IMBs see, Appendix I.
Agencies Have Implemented Some, Not All, IMBRA Requirements:
USCIS, DOS, and DOJ have implemented some, but not all of the IMBRA
requirements that are designed to inform visa applicants about the
persons petitioning for them to immigrate to the United States. For
example, USCIS is collecting criminal background information from
petitioners and forwarding this information to DOS. DOS is in turn
disclosing this information to beneficiaries when it interviews
beneficiaries during the visa process. However, USCIS has yet to
finalize the information pamphlet required by IMBRA that is to contain
information about the visa process and about resources that are
available should any beneficiary become a victim of domestic violence.
Until the pamphlet is finalized, DOS cannot translate or distribute the
pamphlet to beneficiaries as required by IMBRA.
Further, IMBRA assigns responsibility to DOJ for hearing cases and
imposing civil penalties against IMBs in violation of its provisions.
[Footnote 18] However, DOJ, DOS, and USCIS have outstanding enforcement
issues to resolve, such as which agencies will investigate, refer, and
prosecute cases. Although DOJ has drafted IMBRA-related hearing
regulations, DOJ states that these regulations cannot be finalized
until a framework for the investigation, referral, and prosecution of
cases is agreed upon by USCIS, DOS, and DOJ. Table 1 below summarizes
selected IMBRA statutory requirements and actions taken by USCIS, DOS
and DOJ to implement those requirements as of July 2008.
Table 1: Actions Taken by Agencies to Implement Selected IMBRA
Requirements:
1.
IMBRA requirement: Petition filed by petitioner to include information
on any criminal convictions of the petitioner for any specified crimes.
Criminal conviction information obtained from petitioner or from
USCIS's background checks to be forwarded to DOS along with approved
petition. DOS is to mail the beneficiary the approved petition, which
is to include any criminal background information, at the same time as
the visa instruction packet;
Actions taken to implement IMBRA as of July 2008: USCIS revised its I-
129F petition to require petitioner to provide certified conviction
information for specified crimes. USCIS issued IMBRA guidance that
directs adjudicators to forward criminal conviction information to DOS
along with any approved petition. DOS issued guidance requiring that
the petitioner's criminal background information be mailed to
beneficiaries at the same time as the visa instruction packet;
Remaining implementation actions: DOS guidance does not require the I-
129F petition to be mailed to beneficiaries, only the criminal
background information. DOS informed us that it will revise its
guidance to require consular officers to mail the I-129F petition,
including the criminal background information, when they mail the visa
instruction packet, as required by IMBRA.
2.
IMBRA requirement: USCIS to create a database to track multiple visa
petitions filed for fiancé(e)s and spouses;
Actions taken to implement IMBRA as of July 2008: USCIS modified its
application management system, CLAIMS,[A] to allow it to track multiple
fiancé(e) petitions;
Remaining implementation actions: None.
3.
IMBRA requirement: Limits number of petitions a person may file for a
noncitizen fiancé(e) or spouse. USCIS cannot approve a petition if the
petitioner has filed twice before or if the petitioner has filed the
current petition less than 2 years since filing a prior approved
petition. Allows for petitioner to request waiver of filing limits;
Actions taken to implement IMBRA as of July 2008: USCIS modified its
procedures to require adjudicators to check a petitioner's prior
filings in its application management system for those petitioners who
self-attest to having prior filings. USCIS also issued guidance for
granting waivers of the filing limits;
Remaining implementation actions: USCIS generally checks for filing
limits if the petitioner self-attests to having previously filed a
petition. At this time, process for checking all petitioners for prior
filings yet to be implemented.
4.
IMBRA requirement: Upon approval of a second visa petition for a
fiancé(e) or spouse, USCIS is to notify petitioner that information
concerning the petitioner has been entered in the multiple visa
petition tracking database. If a twice-approved petitioner files again
within 10 years of filing the first petition, USCIS shall notify the
petitioner and the beneficiary about the number of previously approved
fiancé(e) or spousal petitions;
Actions taken to implement IMBRA as of July 2008: USCIS modified I-129F
instructions to inform petitioners that multiple filings are tracked.
USCIS modified the petitioner approval notice to include information on
previous approved petitions;
Remaining implementation actions: Process for notifying beneficiaries
of previous petitioner approvals has yet to be fully implemented. While
DHS/USCIS is statutorily responsible for making this disclosure, and
has attempted to fulfill its responsibilities, USCIS is seeking to
transfer this responsibility to DOS so that its consular officers might
make this disclosure during visa interviews with the beneficiary, as
they do with criminal conviction disclosures.
5.
IMBRA requirement: During the visa interview, in the visa applicants'
primary language, DOS shall; Disclose petitioner criminal convictions
and any protection orders against the petitioner, and: Ask the visa
applicant whether an IMB facilitated the relationship between the
applicant and the U.S. petitioner, and if so, obtain the identity of
the IMB from the applicant and confirm that the IMB provided required
information and materials to the applicant;
Actions taken to implement IMBRA as of July 2008: DOS issued guidance
to its consular officers in March 2008 that covers IMBRA disclosures
and IMB inquiries consular officers are to make during the visa
interview;
Remaining implementation actions: None[B].
6.
IMBRA requirement: USCIS to develop an information pamphlet for K
nonimmigrant visa applicants that discusses, among other things, the
visa application process, domestic violence and sexual assault
services, and beneficiary legal rights and resources. Pamphlet to be
completed and available for distribution 120 days after enactment of
IMBRA (i.e., by May 2006);
Actions taken to implement IMBRA as of July 2008: USCIS has drafted the
information pamphlet and obtained comments from DOS and DOJ. On July
22, 2008, USCIS announced in the Federal Register that it was
soliciting comments from the public on the draft pamphlet;
Remaining implementation actions: USCIS has not finalized the
information pamphlet. Once finalized, DOS is to translate the pamphlet
into numerous foreign languages and mail it to K nonimmigrant visa
applicants. Also, IMBs are to provide the pamphlet to their foreign
clients in the clients' primary language.
7.
IMBRA requirement: Provides for federal criminal and civil penalties on
IMBs that violate IMBRA requirements;
Actions taken to implement IMBRA as of July 2008: DOJ drafted
regulations for EOIR to hear IMB civil cases and to assess civil
penalties;
Remaining implementation actions: DOJ, DOS and DHS have yet to
establish an enforcement framework by resolving outstanding issues
about which agencies will investigate, refer, and prosecute IMB cases.
Source: GAO analysis of selected IMBRA requirements and USCIS, DOS, and
DOJ information.
[A] Computer Linked Application Information Management System, CLAIMS,
provides users with automated support for adjudicating cases and
processing various notices, among other things. CLAIMS capabilities
include case tracking, status update, notice reporting, and document
production.
[B] Although not statutorily required to do so, USCIS plans to amend
its I-129F to assist DOS in ascertaining IMB compliance with IMBRA,
according to USCIS officials. The amended form would ask those
petitioners who acknowledged using an IMB to submit the IMB's
certification that it made the required IMBRA disclosures to the
beneficiary.
[End of table]
USCIS Obtains and Forwards to DOS Petitioner Criminal Background
Information for Disclosure to Beneficiaries:
To comply with IMBRA's petitioner criminal background requirements,
USCIS revised the I-129F, Petition for Alien Fiancé(e) instructions, to
request that the petitioner provide certified criminal conviction
information to USCIS. 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. USCIS does not rely solely on the petitioner to
acknowledge if he or she has a criminal history. As part of the
adjudication process, USCIS conducts security checks on all
petitioners.[Footnote 19] 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 is to request the petitioner
to submit certified criminal conviction information before continuing
with the adjudication of the case.[Footnote 20] If the petitioner does
not respond to the request to provide additional information, the case
is to be denied for failure to respond.
IMBRA requires that USCIS forward the petitioner's criminal background
information to DOS. DOS in turn, is required to mail the petition,
including any criminal background information, to the beneficiary at
the same time as it mails the visa instruction packet. USCIS issued
IMBRA implementation guidance in July 2006 to its adjudicators
directing them to include the criminal background information in the
file sent to DOS. USCIS officials from both the California and Vermont
Service Centers told us that criminal background information is being
forwarded to DOS for disclosure to the beneficiary and as discussed
later in this report DOS consular officers are receiving this
information. DOS also issued IMBRA implementation guidance to its
consular officers. DOS's guidance states that consular officers are to
disclose criminal history information to beneficiaries on two separate
occasions: (1) when the visa application instructions are mailed to the
beneficiary and (2) during the consular interview (which we will
discuss later in this report). Although DOS's guidance does provide for
the mailing of criminal history information to beneficiaries, the
guidance does not specifically require DOS to mail beneficiaries a copy
of the approved I-129F petitions, as required by IMBRA. 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. Thus, not
mailing the petitions themselves could prevent beneficiaries from
obtaining relevant non-criminal information about their petitioners
that could affect their immigration decision. During the course of this
review, DOS informed us that it will revise its guidance to require the
I-129F petition itself to be mailed to beneficiaries when it mails the
visa instruction packet.
USCIS Has Modified Its Current Application Management System to Track
Multiple Filers:
To track petitioners who have filed and had two or more fiancé(e) or
spousal petitions approved, IMBRA requires that USCIS create a multiple
visa petition tracking database. USCIS officials told us that they have
not created a separate database to track multiple visa petition filers.
According to USCIS officials, they have addressed the requirement to
develop a multiple visa petition tracking database by modifying its
application management system, called CLAIMS, to enable adjudicators to
notate and track the specific number of fiancé(e) and spousal petitions
filed and approved for a particular petitioner. USCIS adjudicators use
this information to determine if IMBRA-established filing limits have
been exceeded. If exceeded, adjudicators are 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.
USCIS Does Not Uniformly Determine Whether Petitioners Have Exceeded
IMBRA's Filing Limitations:
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.[Footnote 21] USCIS officials told us that they do not check
every petitioner against USCIS's application management information
system, called CLAIMS, to determine if the petitioner has previously
filed a fiancé(e) petition. The I-129F, Petition for Alien Fiancé(e)
form asks whether the petitioner has ever previously filed for this or
any other noncitizen fiancé(e) or husband/wife. According to USCIS
officials, if the petitioner answers "yes," adjudicators are to
initiate a check against CLAIMS to determine whether the petitioner had
prior filings. If the petitioner answers "no," adjudicators are not
required to initiate a check for multiple petition filings. According
to an adjudication officer, although USCIS procedures do not require
adjudicators to check every petitioner against CLAIMS, adjudicators may
initiate a check if other case information alerts the adjudicator that
the petitioner may have previously filed.
USCIS officials told us that checking petitioners' names against CLAIMS
may result in multiple "hits" on people with names similar to or the
same as the petitioner's. According to USCIS, checking every name
against CLAIMS would require a significant amount of review and
research to try and determine if the petitioner is a match to any of
those already in CLAIMS. However, USCIS officials did acknowledge that
a more refined search using the petitioner's name and another piece of
identifying information, such as the petitioner's date of birth, could
reduce the multiple hits and therefore reduce the number of petitioners
who would require additional research.
As shown in Table 1, USCIS adjudicators are to routinely check CLAIMS
if the petitioner self-attests that he or she has previously filed a
petition. Nevertheless, relying on petitioners' self-attestation to
identify previous filers may not always provide accurate results,
regardless of whether petitioners must certify the truthfulness of
their form I-129F attestations under penalty of perjury. For example,
in March 2006, we reported that evidence suggested that immigration
benefit fraud was an ongoing and serious problem, although the full
extent was not known.[Footnote 22] As a result, by limiting USCIS
checks to those petitioners that acknowledge prior filings, USCIS
increases its risk that it will approve more fiancé(e) petitions than
allowed under IMBRA, including petitions filed by persons with a record
of violent criminal offenses, who are not entitled to a waiver of
IMBRA's filing limits except in extraordinary circumstances. USCIS's
reliance on self-attestation also increases the risk that USCIS will
not have accurate multiple filer information to disclose to prospective
beneficiaries. USCIS has reported working to develop system
enhancements that will facilitate accurate systems checks, but has not
specifically stated whether these enhancements will enable it to check
filing limits for all petitioners, consistent with IMBRA.
Petitioners, but Not Beneficiaries, Are Notified of Prior Petition
Approvals:
IMBRA also mandates that USCIS 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 10 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 the form I-129F
inform the petitioner of the circumstances under which repeat filings
will be tracked. USCIS officials told us that the filing instructions
to form I-129F are the mechanism by which petitioners are informed that
multiple filings will be tracked. If USCIS determines a petitioner to
be a multiple filer, but approves the petition under its waiver
authority, the approval notice will indicate whether the approval is
the 2nd, 3rd, 4th, etc.
Under IMBRA, USCIS is responsible for notifying beneficiaries of prior
petition approvals, in contrast with the disclosure of criminal
conviction information, which is to be made by DOS. USCIS officials
told us that initially they attempted to notify beneficiaries, as
required. However, USCIS no longer tries to notify beneficiaries
because of the reported difficulty in obtaining accurate overseas
mailing addresses. Because of inaccurate addresses, USCIS officials
stated that a large number of notifications were returned as
undeliverable. Because of the difficulties reported with overseas mail
and the amount of undeliverable mail the USCIS received, USCIS
officials told us they plan to discuss a process with DOS to have its
consular officers assume this notification responsibility and notify
beneficiaries of prior petition approvals during the consular
interview, as consular officers do with criminal conviction
information. At the time of our review, DOS officials said they had not
held a discussion with USCIS about providing such notification.
According to USCIS officials, USCIS has drafted a memo to its
adjudicators addressing the planned notification process. However, in
the absence of an agreement with DOS to undertake this notification
responsibility, beneficiaries are not currently being notified about
the number of previously approved fiancé(e) or spousal petitions, as
required by IMBRA.
Most DOS Consular Officers We Contacted Said They Are Disclosing
Criminal Background Information to Beneficiaries, but Inquiries about
Use of IMBs Are Not Always Made:
Once USCIS forwards the petitioner's criminal conviction information to
DOS, IMBRA requires that DOS disclose this criminal background
information and information regarding any protection orders[Footnote
23] related to the petitioner to the beneficiary. In addition to
disclosing this information by mail as discussed above, DOS is to
provide this information to the beneficiary, in the beneficiary's
primary language, during the visa application interview. Officials from
six of the seven consular posts we contacted told us that they were
disclosing this information to the beneficiaries in either the
beneficiary's primary language or a language common to the consular
officer and the beneficiary if translation services into the
beneficiary's primary language were unavailable. An official from the
remaining post told us that consular officers at her post had not been
disclosing a petitioner's criminal history to beneficiaries, but based
upon our inquiry, she now planned to have consular officers begin
disclosing criminal history information to beneficiaries. At the time
of our interviews with consular officials during February 2008, DOS had
not yet issued formal guidance to its consular posts regarding
implementation of IMBRA. In March 2008, DOS issued guidance to its
posts on implementation of IMBRA including the need to disclose
petitioner criminal conviction information for certain offenses and
information related to any protection orders related to the petitioner.
The guidance also states that after providing any related criminal
history information, consular officers should give the applicant time
to decide if he or she still wishes to proceed with the visa
application process.
In addition to disclosing petitioner criminal background information to
the visa applicant during the consular interview, IMBRA mandates that
DOS ask beneficiaries if an IMB facilitated the relationship between
the petitioner and beneficiary. 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. Officials from four of
the seven consular posts we contacted told us that their officers had
not been inquiring about whether services of an IMB were used.
Officials from two posts told us their consular staff asked questions
about how the petitioner and beneficiary met, but not specifically
whether the services of an IMB were used. An official from one post
stated that the post's consular staff asked questions about how the
petitioner and beneficiary met as well as whether or not the services
of an IMB were used. Issued after our interviews, DOS's March 2008
guidance to consular posts states that consular officers should ask the
beneficiary the questions mandated by IMBRA, including whether an IMB
facilitated the relationship, what the IMB's name was, and whether the
IMB provided the information required by IMBRA. To assist in this
effort, USCIS officials told us that they plan to amend the I-129F form
to ask those petitioners who acknowledged using an IMB to submit the
IMB's certification that it made the required IMBRA disclosures to the
beneficiary.
Consular officers from six of seven offices told us that they have
encountered relatively few cases where the petitioner had a criminal
history. For example, officials from one consular post that processed
over 11,000 K-1 and K-3 visa applications in 2007, told us that the
post encounters about 20 applications per year (about 0.2 percent)
where the petitioner had a criminal history involving violent IMBRA-
specified offenses. Officials from two of the seven offices told us
that they could not recall any fiancé(e) visa applicants that
acknowledged using an IMB. However, officials from another consular
post stated that they conducted a survey which indicated that about 12
percent of their fiancé(e) visa applicants used the services of an IMB.
USCIS Has Not Finalized the Information Pamphlet Designed to Inform
Beneficiaries about Their Legal Rights and Resources:
IMBRA requires that USCIS, in consultation with DOS and DOJ, develop an
information pamphlet for beneficiaries to include information on the
visa application process; the illegality of domestic violence, sexual
assault, and child abuse in the U.S.; the legal rights of immigrant
victims and the resource services available to them; child support;
marriage fraud; a warning that some U.S. citizens with a history of
violence may not have a criminal record; and information on
requirements for IMBs under IMBRA. Once finalized, DOS is to translate
the pamphlet into at least 14 foreign languages,[Footnote 24] and every
2 years, USCIS, in consultation with DOJ and DOS, shall determine at
least 14 language translations for the pamphlet based on the languages
spoken by the greatest concentrations of K nonimmigrant visa
applicants. Beneficiaries must receive the pamphlet from consular
officers during visa interviews and from USCIS adjudicators during
adjustment interviews [Footnote 25] and IMBs must provide the pamphlet
to their foreign clients. In addition, the pamphlet is to be posted on
DHS, DOS, and consular post Web sites. Further, USCIS is to develop
summaries of the pamphlet to be discussed with beneficiaries in their
primary languages during consular or adjustment interviews. The
pamphlet was to have been available for distribution by May 2006.
As of July 2008, USCIS has yet to finalize the information pamphlet.
According to USCIS officials, the time needed to coordinate with
various USCIS and DHS components is one reason for delay in finalizing
the pamphlet. In April 2008, USCIS officials told us that the draft
pamphlet had been forwarded to DHS' Office of General Counsel and the
Office of Management and Budget (OMB) for review. The pamphlet was
under review through June of 2008. IMBRA also requires that USCIS
consult with nongovernmental entities with expertise in areas such as
the legal rights of immigrant victims of battery and extreme cruelty in
developing the pamphlet. On July 14, USCIS signed the Federal Register
notice seeking public comments on the pamphlet. On July 22, the Federal
Register notice and pamphlet were published and USCIS intends to
utilize the 60-day public comment period to provide the public,
including any interested nongovernmental organizations, an opportunity
to comment on the draft pamphlet before USCIS finalizes the pamphlet
for distribution and publication.[Footnote 26] USCIS officials told us
they did not know when the pamphlet would be finalized, nor did they
have a specific time frame for finalizing the pamphlet. Figure 2 below
shows a timeline which illustrates key steps in the development of the
information pamphlet.
Figure 2: Timeline Showing Key Steps in the Development of the
Information Pamphlet:
[See PDF for image]
This figure is an illustration of a timeline showing key steps in the
development of the information pamphlet, as follows:
January 5, 2005: IMBRA enacted;
May 5, 2005: Pamphlet mandated for distribution (120 days after law
enactment);
Mid-year, 2005: Regulations and Product Management (RPM) tasked to work
on pamphlet;
November 2005:
* Draft of pamphlet completed by RPM;
* Pamphlet review by various USCIS offices begins;
March 2007: Pamphlet review by various USCIS offices completed;
March 19, 2007: Draft pamphlet provided to DOS for comment;
March 27, 2007: DOS submitted comments to USCIS;
May 30, 2007: DOS resubmitted comments at USCIS request;
Mid-February, 2008: DHS requested DOS (2nd round) and DOJ to comment on
pamphlet;
Late-February, 2008: DOJ submitted comments on pamphlet to DHS/USCIS;
March 2008: DOS and DOJ submit comments to DHS;
April/May/June 2008: Pamphlet reviewed by DHS‘s OGC and OMB;
July 2008: Pamphlet published in Federal Register. USCIS announces 60-
day public comment period;
To be determined: Issuance of pamphlet.
Source: GAO analysis of IMBRA legislation and USCIS, DOS, and DOJ
information.
[End of figure]
Since USCIS has not finalized the information pamphlet, DOS has been
unable to translate it. DOS officials told us that once they receive
the finalized pamphlet, the translations would be done expeditiously.
Until the pamphlet is finalized, translated, and distributed USCIS
increases the risk that beneficiaries are not being made aware of their
rights or the resources that are available should they encounter
domestic violence.
Framework for the Investigation, Referral, and Prosecution of IMBRA
Violators Still under Development:
As discussed earlier in this report, IMBRA establishes federal civil
and criminal penalties for IMBs who violate its provisions. However,
USCIS, DOS and DOJ officials told us that there was no framework in
place for enforcing the provisions related to potential IMBRA
violations by IMBs. DOJ and DOS officials told us that the agencies are
discussing these issues, but they could not tell us when a framework
would be in place. DOJ officials told us that the Office of the Chief
Administrative Hearing Officer, within DOJ's Executive Office for
Immigration Review (EOIR), would likely hear civil cases under IMBRA,
just as it hears civil cases under the INA. The Chief Administrative
Hearing Officer within EOIR had drafted IMBRA-related regulations
regarding how civil penalties would be administered, but these
regulations cannot be finalized until the agencies decide who will be
responsible for investigating, referring, and ultimately prosecuting
potential violations at a hearing before DOJ's Chief Administrative
Hearing Officer. DOJ officials stated that since IMBRA has been
enacted, there have been no civil or criminal cases brought against
IMBs. Without a framework for enforcement of the IMBRA provisions, it
will be difficult for IMBRA violators to be prosecuted and assessed
applicable penalties.
Most of the USCIS Data Required for GAO Study Are Not in a Summary or
Reportable Form; Other Required Data Are Not Collected:
As part of our study on the impact of IMBRA on the K nonimmigrant visa
process, IMBRA mandated that USCIS and DOS collect and maintain
specific data for us to report. This required data included changes in
the number of fiancé(e) petitions filed and the extent to which
petitioners had one or more criminal convictions or a history of
violence, including how many of those petitioners had used services of
an IMB or had been granted a waiver of IMBRA's filing limits. Although
IMBRA mandated that USCIS and DOS collect and maintain the data
necessary for us to conduct such a study, the data we are requested to
report on are essentially petition-driven data for which USCIS would
have responsibility to collect and maintain. While USCIS has collected
some data necessary for this study, most of the data IMBRA calls for us
to report are not available in a summary or reportable format. For
example, USCIS provided us with data on the number of fiancé(e)
petitions filed in the past three fiscal years. However, data on which
petitioners had criminal convictions or a history of violence were not
available in a summary or reportable format. That is, although the I-
129F petition asks the petitioner to list specified criminal
convictions, USCIS does not capture this data electronically.
Table 2 lists the petition-related data elements that IMBRA requires
GAO to report on and whether the data were available in a summary or
reportable format.
Table 2: Summary Table of Data GAO Mandated to Report:
1.
Information required to be collected and maintained under IMBRA:
Petitions filed for K nonimmigrant visas;
Were data available in a summary or reportable format?: Yes.
2.
Information required to be collected and maintained under IMBRA:
Petitions denied due to multiple filing limitations;
Were data available in a summary or reportable format?: Partially.
Approval and denial data were compiled; however reason for denial was
not compiled.
3.
Information required to be collected and maintained under IMBRA: Filing
limitation waivers filed, approved, denied, and reason why waiver
approved or denied;
Were data available in a summary or reportable format?: Partially.
Number of waivers approved and denied available, but not reason why
waiver approved or denied.
4.
Information required to be collected and maintained under IMBRA: K
nonimmigrant fiancé(e), spouse, or family-based immigration petitions
filed by prior filers (2 or more filings);
Were data available in a summary or reportable format?: Yes.
5.
Information required to be collected and maintained under IMBRA: K
nonimmigrant fiancé(e), spouse, or family-based immigration petitions
filed by concurrent filers (2 or more filings);
Were data available in a summary or reportable format?: Yes.
6.
Information required to be collected and maintained under IMBRA: Annual
and cumulative number of petitioners and applicants tracked in the
multiple filing database;
Were data available in a summary or reportable format?: Partially.
Annual number of petitioners who have filed previously was available,
but not cumulative number of multiple filers.
7.
Information required to be collected and maintained under IMBRA:
Petitions forwarded to DOS where petitioner had 1 or more criminal
convictions;
Were data available in a summary or reportable format?: No.
8.
Information required to be collected and maintained under IMBRA:
Petitioners with one or more convictions who were granted or denied
waivers of multiple filing limits;
Were data available in a summary or reportable format?: No.
9.
Information required to be collected and maintained under IMBRA:
Persons with a history of violence who are using the K nonimmigrant
visa process;
Were data available in a summary or reportable format?: No.
10.
Information required to be collected and maintained under IMBRA:
Persons with a history of violence who are using the services of an
IMB;
Were data available in a summary or reportable format?: No.
Source: GAO analysis of IMBRA data requirements and USCIS information.
[End of table]
Available USCIS data shows that the number of I-129F petitions filed
since IMBRA was passed declined slightly from about 66,200 in fiscal
year 2006 to about 62,500 in fiscal year 2007. The approval rate for
fiancé(e) petitions decreased slightly from about 86 percent to about
81 percent over the same time period. In fiscal year 2007, of the
approximately 62,500 petitions filed, 309 (less than 1 percent)
petitioners applied for a waiver of the filing limitations through the
service centers.[Footnote 27] USCIS service centers approved 308 waiver
applications and denied one; however, the reasons for the approval and
denial decisions are unknown since USCIS does not currently maintain
such data. In fiscal year 2007, the California Service Center reported
1,529 petitions filed by people who had previously filed.[Footnote 28]
During that same period, USCIS service centers reported 176 petitions
filed by concurrent filers.
USCIS officials told us that for the data elements currently not
available in summary or reportable format they are actively seeking to
modify the CLAIMS application management system to capture this data.
These modifications would include, for example, creating new data
fields in CLAIMS to (1) capture the reason a petition is denied or
granted a waiver, such as whether USCIS denied a petition based on
filing limitations, and (2) identify those petitioners that had a
criminal conviction or a history of violence. USCIS officials told us
that they were in the process of developing a business case to modify
CLAIMS for USCIS senior management review. If USCIS senior management
approves the business case, then the changes to CLAIMS would be made.
USCIS officials were unable to provide a time frame for when the review
of the business case would be completed and, if approved, when the
changes to CLAIMS would be made.
Conclusions:
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.
While DHS/USCIS, DOS, and DOJ have taken some steps to implement IMBRA,
certain IMBRA requirements have yet to be fully implemented, increasing
the risk that beneficiaries are not fully aware of their petitioner's
background or their rights. DOS's current procedures do not provide for
mailing the approved I-129F petitions to beneficiaries. During the
course of this review, DOS informed us that it will revise its guidance
to require the I-129F petition to be mailed to beneficiaries when it
mails the visa instruction packet. USCIS's current procedures do not
ensure that all petitioners are within IMBRA's multiple filing
limitations because USCIS does not check all petitioners for prior
filings. Beneficiaries are not being notified of the number of
previously approved petitions filed by their petitioner as required by
IMBRA. Without developing a mechanism to check all petitioners for
prior filings nor a mechanism for sharing information with
beneficiaries about the number of previously approved petitions filed
by their petitioner, beneficiaries may not have all the information
they need to make an informed decision about whether to immigrate to
the United States. Until the information pamphlet is finalized,
translated and distributed, USCIS increases the risk that beneficiaries
are not being made aware of their rights or the resources that are
available should they encounter domestic violence. Without a legal
framework for enforcing IMBRA's provisions, it will be difficult for
IMBRA violators to be prosecuted and assessed applicable penalties.
We could not determine the reason a petitioner was denied or granted a
waiver or the extent to which petitioners with a criminal history or
history of violence have filed K nonimmigrant petitions, including how
many of those petitioners used the services or an IMB or received
waivers of IMBRA's filing limits, because USCIS did not collect and
maintain this data in a summary or reportable format for this study.
Should USCIS modify its CLAIMS system to capture this data, USCIS may
be able to report this information in the future.
Recommendations:
To improve implementation of IMBRA and to help ensure that
beneficiaries receive all IMBRA-required information, we recommend that
the Director, USCIS:
* Develop a mechanism to check all petitioners for prior filings to
determine if a petitioner exceeds the filing limits established by
IMBRA.
* Develop a mechanism, in consultation with the Secretary of State, to
implement the IMBRA requirement that beneficiaries be notified
regarding the number of previously approved petitions filed by the
petitioner.
* Develop a timeframe for finalizing the information pamphlet so that
it can be translated and distributed as required by IMBRA.
In order to help ensure that penalties can be imposed on IMBRA
violators as provided for in the law, we recommend that the Secretary
of Homeland Security:
* In consultation with the Secretary of State and the Attorney General,
develop a framework for the investigation, referral, and prosecution of
potential IMB violations of IMBRA.
Agency Comments and Our Evaluation:
We provided a draft of this report to the Secretaries of Homeland
Security and State and the Attorney General for review and comment. We
received comments from DHS that are reprinted in appendix II. DHS
concurred with our recommendations and outlined actions that USCIS and
DHS are undertaking to address them. DOS provided technical comments,
which we have incorporated into the report as appropriate. DOJ did not
provide comments.
In its comments, DHS stated that USCIS is actively seeking to modify
the CLAIMS database in order to provide an automated solution for
identifying multiple filers. Additionally, USCIS is in the process of
refining the search criteria to reduce multiple matches on people with
common last names. DHS also stated that USCIS was actively working with
DOS to ensure that DOS is aware of USCIS annotations on the I-129F
petitions indicating multiple filings so that DOS can inform its
consular officers to notify beneficiaries of the number of previously
approved petitions filed by the petitioner. Further, DHS stated that
USCIS has taken a major step toward meeting the report's recommendation
to finalize the IMBRA-required information pamphlet by seeking public
comment on the draft pamphlet through the publishing of the Federal
Register notice and pamphlet on July 22, 2008. Lastly, DHS stated that
it plans to consult with the departments of State and Justice to
implement the necessary framework for the investigation, referral, and
prosecution of potential IMBRA violations and that work towards
implementing this recommendation is under way. We agree that these
actions should help improve the implementation of IMBRA and help ensure
that beneficiaries receive all IMBRA-required information as well as
provide for the imposition of penalties on IMBRA violators as provided
for in the law.
We are sending copies of this report to the Secretaries of Homeland
Security and State and the Attorney General. We will send copies to
other interested parties and make copies available to others who
request them. In addition, the report will be available at no charge on
GAO's Web site at [hyperlink, http://www.gao.gov].
If you or your staffs have any questions about this report, please
contact me at (202) 512-8777 or at stanar@gao.gov. Contact points for
our Office of Congressional Relations and Public Affairs may be found
on the last page of this report. Key contributors to this report are
listed in appendix III.
Signed by:
Richard M. Stana:
Director, Homeland Security and Justice Issues:
[End of section]
Appendix I: Summary of Selected IMBRA Requirements for USCIS, DOS, DOJ,
and IMBs:
IMBRA Section: 832;
Action Item: Multiple filer database;
Responsible Entity: USCIS;
Statutory Requirement: Create a database to track multiple visa
petitions filed for fiancé(e)s and spouses.
IMBRA Section: 832;
Action Item: Multiple filer notification to Petitioner and Beneficiary;
Responsible Entity: USCIS;
Statutory Requirement: Upon approval of 2nd visa petition for a
fiancé(e) or spouse, notify petitioner that multiple filings are being
tracked; after 2nd petition approval, if another is filed within 10
years of first, notify petitioner and beneficiary of number of previous
approvals.
IMBRA Section: 832;
Action Item: Petitioner Criminal History/Collection;
Responsible Entity: USCIS;
Statutory Requirement: Obtain petitioner's criminal history
information.
IMBRA Section: 833;
Action Item: Petitioner Criminal History/Disclosure by Mail;
Responsible Entity: USCIS/DOS;
Statutory Requirement: USCIS is to provide a copy of the petition and
any petitioner criminal background information to DOS, which must mail
such documentation to the beneficiary, along with other materials such
as the domestic violence information pamphlet.
IMBRA Section: 833;
Action Item: Visa Interviews and Disclosures;
Responsible Entity: DOS; Statutory Requirement: During the visa
interview, DOS is to:
- Share petitioner's criminal background information with the visa
applicant (beneficiary) in his/her primary language. DOS may not
disclose a victim's name or contact information, but shall disclose the
relationship of the victim to the petitioner. DOS shall inform the visa
applicant that criminal background information is based on the
available records and may not be complete;
- Provide visa applicant a copy of the domestic violence information
pamphlet and an oral summary in the applicant's primary language;
- Ask visa applicant, in the applicant's primary language, whether an
international marriage broker facilitated the relationship between the
applicant and the U.S. petitioner, and if so, obtain the identity of
the IMB from the applicant and confirm that the IMB provided the
applicant required information and materials.
IMBRA Section: 833;
Action Item: Development of Information Pamphlet and Pamphlet
summaries;
Responsible Entity: USCIS;
Statutory Requirement: Develop information pamphlet and pamphlet
summaries for K nonimmigrants on domestic violence rights and
resources, in consultation with DOS and DOJ.
IMBRA Section: 833;
Action Item: Translation of Information Pamphlet;
Responsible Entity: DOS;
Statutory Requirement: Translate information pamphlet into at least 14
foreign languages specified by IMBRA. Every 2 years, translate pamphlet
into at least 14 more languages, as specified by USCIS in consultation
with DOS and DOJ.
IMBRA Section: 833;
Action Item: Dissemination of Information Pamphlet;
Responsible Entity: USCIS/DOS/IMB;
Statutory Requirement: IMBRA specifies four methods of disseminating
the information pamphlet:
- By mail: DOS to mail pamphlet to visa applicant when it mails the
visa instruction packet and a copy of the petition (including any
criminal history information). Pamphlet shall be in the primary
language of the applicant or in English if no translation is available;
- During interview: USCIS and DOS to distribute information pamphlet to
beneficiary at any USCIS adjustment interview or DOS visa interview. At
the respective interview, USCIS and DOS officers must also review
pamphlet summary with the applicant in his/her primary language;
- On the web: DHS, DOS and its consular offices must post pamphlet on
their websites;
- By the IMB: IMBs are to provide the pamphlet to their foreign clients
in the clients' primary language.
IMBRA Section: 833;
Action Item: Enforcement;
Responsible Entity: DOJ;
Statutory Requirement: Impose federal civil penalties associated with
IMB violations of IMBRA.
IMBRA Section: 833;
Action Item: Prohibition on Marketing of Children;
Responsible Entity: IMB;
Statutory Requirement: IMBs cannot provide any individual or entity
with the personal contact information, photograph, or general
information about the background or interests of any individual under
the age of 18.
IMBRA Section: 833;
Action Item: Collection of Background Information;
Responsible Entity: IMB;
Statutory Requirement: Search the National Sex Offender Registry or
State sex offender public registry; collect background information
about the U.S. client such as U.S. client's marital and criminal
history, including protection orders or restraining orders.
IMBRA Section: 833;
Action Item: Informed Consent;
Responsible Entity: IMB;
Statutory Requirement: Before providing U.S. client or his/her
representative with the personal contact information of any foreign
client, IMB must collect the U.S. client's sex offender registry and
background information, share such information with the foreign client,
and obtain the foreign client's signed, written consent to share his/
her personal contact information with the U.S. client.
IMBRA Section: 833;
Action Item: Disclosure/Confidentiality;
Responsible Entity: IMB;
Statutory Requirement: IMBs shall not provide the foreign national
client's personal contact information to any person or entity other
than a United States client; IMBs shall not disclose to the beneficiary
the name or location of any victim of the U.S. client, but shall
disclose the relationship between the U.S. client and the victim.
Source: GAO summary of selected IMBRA requirements.
[End of table]
[End of section]
Appendix II: Comments from U.S. Department of Homeland Security:
U.S. Department of Homeland Security:
Washington, DC 20528:
[hyperlink, http://www.dhs.gov]:
July 31, 2008:
Mr. Richard M. Stana:
Director:
Homeland Security and Justice:
U.S. Government Accountability Office:
441 G Street, NW:
Washington, DC 20548:
Dear Mr. Stana:
Thank you for the opportunity to review and comment on the Government
Accountability Office's (GAO's) draft report GAO-08-862 entitled
International Marriage Broker Regulation Act Of 2005: Agencies Have
Implemented Some, but Not all of the Act's Requirements.
To improve implementation of the International Marriage Broker
Regulation Act (IMBRA) and to help ensure that beneficiaries receive
all IMBRA-required information and that penalties can be imposed on
IMBRA violators as provided for in the law, GAO recommends that the
Director, USCIS take four actions. The Department's response to the
recommendations follows but we note that Recommendation 4 should be
addressed to the Secretary for action as opposed to the USCIS Director.
Recommendation 1: Develop a mechanism to check all petitioners for
prior filings to determine if a petitioner exceeds the filing limits
established by IMBRA.
Response: Concur. USCIS is actively seeking to modify the CLAIMS
database in order to provide an automated solution for identifying all
multiple filers. USCIS is in the process of refining the search
criteria to reduce multiple matches on people with common last names.
Recommendation 2: Develop a mechanism, in consultation with the
Secretary of State, to implement the IMBRA requirement that
beneficiaries be notified regarding the number of previously approved
petitions filed by the petitioner.
Response: Concur. USCIS currently annotates the approved I-129F
petition to indicate multiple filings to enable Department of State
(DOS) consular officers to notify the beneficiary during the visa
interview. USCIS is actively working with DOS to ensure their consular
officers are aware of this and incorporate it into their standard
operating procedures.
Recommendation 3: Develop a timeframe for finalizing the information
pamphlet so that it can be translated and distributed as required by
IMBRA.
Response: Concur. USCIS is pleased to report that on July 15, 2008,
Acting Director Scharfen signed the Federal Register (FR) notice
seeking public comments on the IMBRA pamphlet. USCIS forwarded the FR
notice and the pamphlet to the Federal Register and it was published on
July 22, 2008.
Publishing the FR notice and the pamphlet completes a major step in the
process for finalizing the IMBRA pamphlet.
Recommendation 4: In consultation with the Secretary of State and the
Attorney General, develop a framework for the investigation, referral,
and prosecution of potential IMB violations of IMBRA.
Response: Concur. The Department will consult with the Departments of
State and Justice to develop the necessary framework for the
investigation, referral, and prosecution of potential IMBRA violations.
In fact, work to implement this recommendation is underway.
Thank you for the opportunity to comment on this draft report and we
look forward to working with you on future homeland security issues.
Sincerely,
Signed by:
Jerald E. Levine:
Director:
Departmental GAO/OIG Liaison Office:
[End of section]
Appendix III: GAO Contact and Staff Acknowledgments:
GAO Contact:
Richard M. Stana, (202) 512-8777 or stanar@gao.gov:
Staff Acknowledgments:
In addition to the contact named above, Michael Dino, Assistant
Director, and Carla Brown, Analyst-in-Charge, managed this assignment.
Lemuel Jackson and James Russell made significant contributions to the
work. Stanley Kostyla and James Ungvarsky assisted with design,
methodology and data analysis. Adam Vogt provided assistance in report
preparation; Christine Davis and Willie Commons III provided legal
support; Karen Burke and Tina Cheng developed the report's graphics.
[End of section]
Footnotes:
[1] We previously reported that in fiscal year 2005, 420 family-based
petitions were filed by convicted sex offenders. Ninety-one of those
petitions were filed for noncitizen fiancé(e)s. Sex offender crimes
included sexual assault and rape. See GAO, Immigration Benefits:
Circumstances under Which Petitioners' Sex Offenses May Be Disclosed to
Beneficiaries. [hyperlink, http://www.gao.gov/cgi-bin/getrpt?GAO-06-
735] (Washington, D.C.: June 14, 2006).
[2] IMBRA was enacted on January 5, 2006 as part of the Violence
Against Women and Department of Justice Reauthorization Act of 2005,
Pub. L. No. 109-162, 119 Stat. 2960 (2006). The statute's IMBRA
provisions are set forth in sections 831 through 834, and IMBRA
citations in this report will identify the appropriate section.
[3] IMBRA generally defines an IMB as a for-profit entity whose
principal business is to charge fees for providing dating, matrimonial,
matchmaking services, or social referrals between U.S. and foreign
national clients by providing personal contact information or otherwise
facilitating communication between U.S. and foreign national clients.
See IMBRA § 833(e)(4).
[4] Because USCIS is the DHS component generally responsible for
carrying out the requirements discussed in this report, our report will
generally refer to USCIS rather than DHS, unless otherwise appropriate.
[5] IMBRA requires the Comptroller General to conduct a study on the
impact of sections 832 and 833 of IMBRA on the K nonimmigrant visa
process. K nonimmigrant visa applicants are a class defined by
subparagraph (K) of section 101(a)(15) of the Immigration and
Nationality Act to include noncitizen fiancé(e)s or spouses of U.S.
citizens, or their minor children. Most K nonimmigrant visa applicants
are fiancé(e)s. Our report focuses on the fiancé(e)s; however, spouses
and minor children will be mentioned where appropriate.
[6] Pub. L. No. 109-248, 120 Stat. 587 (2006).
[7] Adjudicators determine eligibility for various types of immigration
benefits, including permission for relatives to immigrate and
permission to become U.S. citizens, among other benefits.
[8] The K nonimmigrant visa process allows U.S. citizens to petition
for a fiancé(e), spouse or their minor children to enter the United
States as nonimmigrants and then apply for immigrant status while in
this country. A K-1 visa is for a fiancé(e); a K-2 visa is for a
fiancé(e)'s minor child; a K-3 visa is for a spouse; and a K-4 visa is
for a spouse's minor child.
[9] Petitioners may seek a waiver of the in-person petitioner and
fiancé(e) meeting requirement. 8 U.S.C. § 1184(d)(1).
[10] Petitioners must report on their I-129F forms the following
specified crimes: (i) domestic violence, sexual assault, child abuse
and neglect, dating violence, elder abuse, stalking; (ii) 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
the crimes listed in (ii); and/or (iii) at least three convictions for
crimes relating to a controlled substance or alcohol not arising from a
single act. IMBRA § 832(a)(1).
[11] IBIS is a multi-agency computer system of lookouts for terrorists,
drug traffickers, and other such criminal types. IBIS interfaces with
several sources, including the FBI's National Crime Information Center,
and allows its users to interface with all 50 states and the District
of Columbia via the National Law Enforcement Telecommunications
Systems.
[12] NCIC is a national database of documented criminal justice
information and consists of 18 data files, 7 of which relate to
property and the remaining 11 to individuals. The 7 property files
contain records for articles, boats, guns, license plates, securities,
vehicles, and vehicle and boat parts. The 11 person files are the
Convicted Sexual Offender Registry, Foreign Fugitive, Identity Theft,
Immigration Violator, Missing Person, Protection Order, Supervised
Release, Unidentified Person, U.S. Secret Service Protective, Violent
Gang and Terrorist Organization, and Wanted Person files. The
Interstate Identification Index, which contains automated criminal
history record information, is also accessible through the same network
as the NCIC.
[13] According to USCIS officials, USCIS access to the five NCIC files
is consistent with the FBI's 2002 authorization to the former
Immigration and Naturalization Service for limited NCIC access for
purposes of adjudicating applications for immigration benefits.
[14] Pub. L. No. 109-248, § 402, 120 Stat. 587, 622 (2006). A specified
offense against a minor under the Walsh Act includes such things as
possession, production, or distribution of child pornography, or
criminal sexual conduct involving a minor, including the use of the
Internet to facilitate or attempt such conduct. Id., § 111(7), 120
Stat. 587, 592.
[15] The National Sex Offender Public Registry referred to in IMBRA is
the Dru Sjodin National Sex Offender Public Web site.
[16] Federal civil penalties for each IMBRA violation are between
$5,000 and $25,000. Federal criminal penalties include up to 5 years of
imprisonment. IMBRA, § 833(d)(5).
[17] IMBRA, § 833(d)(5).
[18] IMBRA, § 833(d)(5).
[19] As discussed earlier in this report, USCIS conducts security
checks via IBIS.
[20] As discussed earlier in this report, if the petitioner has been
convicted of a specified offense against a minor, under the Adam Walsh
Act, DHS cannot approve such a petition unless the DHS Secretary
determines, in his sole and unreviewable discretion, that the
petitioner poses no risk to the beneficiary.
[21] IMBRA prohibits the approval of a petition if the petitioner has
filed twice before, or if the petitioner has filed the current petition
less than 2 years since filing a prior approved petition. Petitioners
can request a waiver of these filing limits by explaining why they
believe a waiver would be appropriate in his or her circumstances and
provide evidence to support their explanations. Adjudicators review the
information and make a determination on whether or not to grant the
waiver based on the evidence provided. A waiver cannot be granted if
the petitioner has a record of violent criminal offenses, except in
extraordinary circumstances such as the petitioner's having acted in
self-defense as a victim of domestic violence. It should be noted that
IMBRA contains an apparent technical inaccuracy when discussing the
multiple filing limits, stating that a "consular officer may not
approve a petition" until verifying that the petitioner is within
IMBRA's filing limits. However, IMBRA recognizes elsewhere that
petition approval is not a DOS but a DHS function, for example, by
granting the Secretary of Homeland Security the authority to waive the
multiple filing limits. See IMBRA, § 832(a)(1)(D).
[22] See GAO, Immigration Benefits: Additional Controls and a Sanctions
Strategy Could Enhance DHS's Ability to Control Benefit Fraud,
[hyperlink, http://www.gao.gov/cgi-bin/getrpt?GAO-06-259] (Washington,
D.C.: Mar. 10, 2006).
[23] In general, a protection order prohibits one individual from
contacting or coming into contact with another individual.
[24] To best serve the language groups having the greatest
concentration of nonimmigrants, IMBRA requires DOS to translate the
information pamphlet into Russian, Spanish, Tagalog, Vietnamese,
Chinese, Ukrainian, Thai, Korean, Polish, Japanese, French, Arabic,
Portuguese, Hindi, and such other languages the Secretary of State may
specify.
[25] USCIS adjudicators conduct adjustment interviews with family-based
applicants who are already in the United States in a nonimmigrant
status, such as a visitor or student. When USCIS approves the petition,
rather than send the approved petition to DOS, a USCIS adjudicator will
determine whether to allow the noncitizen to change, or "adjust," his
or her status to that of a lawful permanent resident.
[26] Domestic Violence Guidance Pamphlet for K Nonimmigrants, 73 Fed.
Reg. 42586 (July 22, 2008).
[27] See footnote 21 for a discussion of the filing limitations and
waiver authority.
[28] Data on previous filers from the Vermont Service Center were not
readily available.
[End of section]
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