The law was amended by the International Marriage Broker Regulation Act of 2005 (IMBRA) to mandate the reporting of certain information to the fiancé(e) about the U.S. citizen petitioner. In essence, IMBRA was enacted to address issues of domestic violence and abuse so as to protect K visa beneficiaries from possible violent petitioners. This law applies to all I-129F petitions for K status filed on or after March 6, 2006.
Convictions for Certain Crimes
A petitioner for a K-1 fiancé(e) must submit with the Form I-129F, information on any convictions of the petitioner for certain “specified crimes.” Such crimes include, but are not limited to, “domestic violence,” “sexual assault,” “child abuse and neglect,” “dating violence,” “elder abuse,” and “stalking.” The petitioner is required to submit certified copies of all court and police records showing the charges and dispositions for every such conviction. This is required even if the petitioner’s records were sealed or otherwise cleared. The consulate officer will disclose this information to the fiancé(e) during the consular interview.
International Marriage Brokers
IMBRA also mandates the regulation of international marriage brokers. Consequently, K-1 petitioners are required to inform U.S. Citizenship and Immigration Services (USCIS) if they met their fiancé(e) or spouse through the services of an international marriage broker and to provide information about the broker on Form I-129F. IMBRA defines a marriage broker as any legal entity or individual “that charges fees for providing dating, matrimonial, matchmaking services, or social referrals between U.S. citizens or nationals or aliens lawfully admitted to the United States as permanent residents and foreign national clients by providing personal contact information or otherwise facilitating communication between individuals.”
IMBRA imposes limitations on the number of petitions a K-1 petitioner may file or have approved without seeking a waiver. If the petitioner has filed two or more K-1 visa petitions at any time in the past, or previously had a K-1 petition approved within two years prior to the filing of the current petition, the petitioner must request a waiver.
A request for waiver may be presented with the I-129F by attaching a signed and dated letter, requesting the waiver and explaining why a waiver would be appropriate under the circumstances, together with any evidence in support of the request. The secretary of DHS has the discretion to waive the applicable time and/or numerical limitations if in his or her estimation justification exists for the waiver, except where the petitioner has a history of violent criminal offenses against a person.
Extraordinary Circumstances Waiver in Cases Involving a History of Violent Offenses
Where there is a history of violent offenses, the limitations may not be waived unless the petitioner can demonstrate extraordinary circumstances. The secretary of DHS has the sole discretion to determine the credibility of the evidence and the weight to be accorded to such evidence.
Mandatory Waiver in Cases with a History of Violent Offenses Where Petitioner Was Subjected to Battery or Extreme Cruelty
IMBRA mandates that the secretary of DHS approve a waiver request if the petitioner can establish that he or she:
• Was battered or subjected to extreme cruelty by his or her spouse, parent, or adult child at the time he or she committed the violent offense(s); and
• Was not the primary perpetrator of violence in the relationship;
• Was acting in self defense;
• Violated a protective order intended for his or her protection; or
• Was convicted or pleaded guilty to committing a crime that did not result in serious bodily injury and there was a connection between the crime committed and the battery or extreme cruelty.
IMBRA requires USCIS to track repeated petitions for K visas. Once a petitioner has two approved petitions for a K-1 or K-3, if the petitioner files a third petition less than 10 years after the date the first petition was filed, USCIS must notify both the petitioner and the fiancé(e) of the number of previously approved fiancé(e) or spousal petitions.
Adam Walsh Act Prohibition Against Filing Family-Based and I-129F Visa Petitions
The law renders any K nonimmigrant visa or family-based immigrant visa petitioner ineligible for filing if that petitioner has been convicted of a “specified offense against a minor”. A petitioner who has been convicted of a specified offense against a minor is not simply prohibited from filing on behalf of a minor child. The petitioner is prohibited from filing on behalf of “any” fiancé(e) and many other family-based beneficiary. “
The term “specified offense against a minor” means an offense against a minor (defined as an individual who has not attained the age of 18 years) that involves any of the following:
• An offense (unless committed by a parent or guardian) involving kidnapping;
• An offense (unless committed by a parent or guardian) involving false imprisonment;
• Solicitation to engage in sexual conduct;
• Use in a sexual performance;
• Solicitation to practice prostitution;
• Video voyeurism
• Possession, production, or distribution of child pornography;
• Criminal sexual conduct involving a minor, or the use of the Internet to facilitate or attempt such conduct; or
• Any conduct that by its nature is a sex offense against a minor.
Consular posts are instructed to return to the National Visa Center (NVC) any petition filed by a person who has been convicted of one of the offenses set forth in the law. This bar against filing a petition will not apply if the Secretary of Homeland Security determines that the petitioner poses no risk to the beneficiary. If the petition reflects a “no-risk determination” and the consular officer intends to approve the visa application, the consular officer should nonetheless notify the beneficiary of such convictions.