http://usaimmigrationattorney.com/nucleus/ INTERNATIONAL MARRIAGE BROKER REGULATION ACT OF 2005, IMBRA, IMBRA 2005, VIOLENCE AGAINST WOMEN ACT, VAWA, international marriage broker regulation act of 2005, imbra, imbra 2005, violence against wom en-us Nucleus CMS v3.2 © Weblog http://backend.userland.com/rss http://usaimmigrationattorney.com/nucleus//nucleus/nucleus2.gif http://usaimmigrationattorney.com/nucleus/ http://usaimmigrationattorney.com/nucleus/index.php?itemid=3 GARY BALA'S IMMIGRATION BLOG

---Legally Flawed “Anti-Couple” Legislation Labels U.S. Men Abusers and Hurts Foreign Women's Options for American Courtship---

Opinion-Editorial by Gary Bala, USA Immigration Attorney

Date: January 16, 2006


Office Press Release on IMBRAThe Purpose and Use of the Repeal IMBRA PetitionPR Web Newswire on IMBRA: Feb. 21, 2006PR Web Newswire No. 2 on IMBRA: March 13, 2006Prague Post Online on IMBRA, Quotes Gary Bala: Feb. 20, 2006Santa Fe New Mexican, Quotes Gary Bala: Sept. 24, 2006Also Interviewed on the IMBRA law by Congressional Quarterly Magazine, San Antonio Current Magazine, and New York Times in July and August 2006
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NOTE: Mr. Bala, a member of the American Immigration Lawyers Assn. (AILA) with 25 years of legal experience, has completed hundreds of family cases, fiancée visas, spousal petitions and consultations. His office is in Pennsylvania. Contact him via E-Mail: gb@garybala.com
Website: USA Immigration Attorney.com
Blog: Fiancee Visa - Spousal Visa
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After hours on the Saturday before Christmas Weekend 2005, the U.S. House rushed through the final version of a law, H.R. 3402, which will, as a practical matter, effectively shoot down Cupid’s Arrow for many American men (and women) seeking romance and love with a foreign partner.

The International Marriage Broker Regulation Act of 2005 (IMBRA), Public Law No. 109-162, Title VIII, Subtitle D, January 05, 2006 [codified at 8 USC §1375a(d)(2) and (e)(4)] was passed on a simple but undemocratic “voice vote”, by the House on Saturday, Dec. 17 following a "unanimous consent" vote by the Senate on Friday, Dec. 16, in time to allow lawmakers to return home for the holidays, without any hearings, witness testimony or even review of relevant statistical or empirical evidence, in true "backdoor" fashion. SEE Congressional Action on IMBRA: Passed by House on "Voice Vote" 12/17/05 5:19PM Eastern Time, Passed by Senate by "Unanimous Consent" by 12/16/05.

Many legislators who agreed on the voice vote after a House-Senate Conference probably did not even read the law as it was cleverly attached, by its feminist proponents notably Sen. Maria Cantwell (D-WA), to the back-end of the universally applauded “Violence Against Women and Department of Justice Reauthorization Act of 2005”, signed by the President on January 05, 2006. Most of the law's provisions go into effect in 60 days, or by March 06, 2006.

Let’s be crystal clear that NO ONE is against protection of women and children from deadly and vicious attacks at the hand of spouses who may be violent offenders. Yes, we all agree and should indeed work hard and imaginatively to combat this wicked evil in our society. But this law is NOT the answer...KEEPING THE PICTURE IN PERSPECTIVE

First off, let’s keep the topic which is the subject of this law - abuse protection for immigrant battered women entering the U.S. on K Visas – in true perspective.

Almost 50,000 people are killed every year in motor vehicle accidents in the U.S., per National Highway Traffic Safety Administration, Fatality Analysis Reporting System (FARS). There are over 1 million violent crimes in the U.S. each year, per FBI: Violent Crime in the U.S. Over 5 million incidents of “Intimate Partner Violence” are reported annually in the U.S., according to the CDC, National Center for Injury Prevention and Control. Yet, contrasted with these massive numbers, what can be said to be the actual number of reported deaths and serious injury to immigrant battered women in inter-cultural marriages to warrant special new legislation in this area vs. others?

The burden is on the proponents of any new law purporting to address this issue of deaths and serious injuries to immigrant women to come forward with a statistic and number, from a documented source, to justify any special new regulation and enforcement. This, they have not done. In fact, CBS News (July 05, 2003) reports that "no firm [current] statistics exist on the extent of abuse suffered by mail-order brides..."

Thus, under the present state of the record, it cannot be concluded that any new federal law was even necessary, above existing protections. What we do know for sure is that, in fact, the genesis of this law can be traced to media reports of but two (2) cases, though very serious, from Washington State: 1. Anastasia King from one of the Russian states, and 2. Susanna Blackwell from the Philippines, who were both murdered by their husbands who petitioned for their K Visas. These two (2) cases are contrasted with what the legacy INS in 1999 estimated is between 4000 and 6000 marriages each year between inter-cultural couples from international matchmaking organizations, in their"International Matchmaking Organizations: A Report to Congress, Part II - Data Collection and Statistical Analysis, Information on Marriages Based on Mail Order Introductions, (1) Number of Mail Order Marriages".

These two (2) cases are also contrasted with another relevant statistic, namely the number of abuse cases by immigrant battered women attributable to the international romance field. The legacy INS, in the same report cited above, estimated that in a sample review of 1170 Form I-130 Abuse Petitions filed at the Vermont Service Center in January and February 1998 by "self-petitioning" immigrant battered spouses and children, "less than 1 percent of the abuse cases now being brought to the attention of the INS can be attributed to the mail-order bride industry." "International Matchmaking Organizations: A Report to Congress, Part II - Data Collection and Statistical Analysis, Information on Marriages Based on Mail Order Introductions, (4) Domestic Abuse in Mail Order Marriages".

See also: Mobydeen, Something Old, Something New, Something Borrowed, Something Mail-Ordered? The Mail Order Bride Industry and Immigration, 49 Wayne L. Rev. 939, 960 (Winter 2004)("a review of the agency's records found that less than one percent of the domestic violence brought to the attention of the immigration service were identified as relating to the mail-order bride industry.")

The INS Report to Congress cited above is often quoted for the comment: "it is usually asumed by experts that the incidence [of abuse] is higher in mail-order marriages. The argument...seems plausible, given the discrepancies in power" between the husband and the wife". See Part 4. See also the comment in Appendix A (Abuse): "While no national figures exist on abuse of alien wives, there is every reason to believe that the incidence is higher in this population than for the nation as a whole."

A Ph.D. Dissertation paper of Lisa Ann Simons carefully dissected the INS Report and addressed the above comments
by noting:

1. [Based] on the theoretical notion that men COULD use immigration status of their partners [or power position over them] in an abusive context, one cannot logically assume that the majority of men WILL do so. (Emphasis added.)

2. There is much impressionistic and anecdotal reporting but no research evidence to indicate that IMO husbands are more likely than any other men to be prone to wife abuse.

3. Citing one of the conclusions of the INS Report itself, Simons states: " ...there is no empirical evidence in the INS that records indicating the mail-order bride industry is responsible for bringing together most of the couples [with abuse issues]."

"See: Simons, Marriage, Migration and Markets: International Matchmaking and International Feminism, Ph.D. Dissertation to Graduate School of International Studies, Univ. of Denver (June 2001), Page 16, 33, and 42.".

In short, there does not appear to be relevant statistical support for any new law purportedly aimed at curbing abuse protection for immigrant women who married through an international romance company.

Moreover, among all such inter-cultural couples regardless of how they met, informal tentative studies suggest that, on average, marriage longevity rates are significantly higher and divorce rates significantly lower than for domestic marriages. See Our Internal Office Study (March 2005): "Marriage Longevity Rates 2000-2005 for Latina-American 'International Romance' Marriages".

THE LAW'S LAUDABLE PURPOSE, YET DUBIOUS AND EVEN DESTRUCTIVE PRACTICAL CONSEQUENCES

Preventing and limiting potential for domestic violence abuse is indeed a laudable goal.

This law tries to further that purpose by requiring the disclosure of certain mandatory information from a U.S. citizen (mostly men), primarily about their criminal and domestic violence history, who want to file for a K Visa, or pursue romance options through a romance company, so that the foreign client (mostly women) can make an informed choice to pursue the relationship or not.

In fact, the provisions of this law requiring U.S. citizen petitioners for K Visas to submit criminal and domestic violence history information and records to the U.S. government are probably a good thing. As are the provisions which require the U.S. Consulates to conduct intensive background checks of the petitioners and share that information in the K Visa applicant’s primary language, together with domestic violence help information, at time of the Consular visa interview.

Law enforcement and consular databases in the electronic age probably make Uncle Sam best suited for this investigative task anyway. And the distributing of this information to the K Visa applicants BY THE U.S. GOVERNMENT and BEFORE the applicant receives the visa, will ensure that that information has maximum relevant impact from the most credible actor, if it is in fact needed. (Most K Visa applicants are foreign fiancees who under current regulation are allowed to join their American citizen gentleman to finalize and conclude a marriage here in the U.S.)

The real problem of this law is found in the provisions in Section 833(d) pertaining to the requirements imposed on “International Marriage Brokers”, private companies which range from correspondence only to full-blown matchmakers for U.S. clients (usually gentlemen) and foreign clients (usually women).

These provisions mandate private brokers to secure from U.S. clients the same extensive criminal and domestic violence background information as the Consulates, AND THEN to translate and provide the information to a potential foreign client, AND THEN to obtain from her a signed, written consent BEFORE allowing her personal contact information to be released to the U.S. client. In other words, this information release and paperwork is a condition for the couple to even begin to communicate or even just say “Hi.”

Take a look at the extensive nature of some of the information at issue:

— Any arrest or conviction for crimes ranging from "homicide" to "child neglect", NOT making any distinctions between an arrest leading to conviction and one not resulting in conviction, or differentiating between recent arrests or convictions, and very old arrests or convictions;

— Any arrest or conviction related to controlled substances, alcohol or prostitution, again making no distinction between an arrest which does NOT lead to conviction and one which does, and not examining the age of arrests or convictions;

— Any family court orders, including temporary restraining orders, which are often not difficult to procure in many states;
— Every state and country of the U.S. client’s residence since the age of 18;

— Current or previous marriages, and how and when they were terminated;

— Ages of children under age 18;

Most romance agencies and companies are realistically dealing with hundreds and thousands of U.S. clients, and hundreds and thousands of foreign clients as well.

It is obvious that it will be commercially prohibitive and physically impossible for most agencies and companies to begin to comply with these onerous and punitive requirements as a condition of doing business. They will be forced from business or driven overseas or offshore. U.S. clients will have fewer customer choices and options for overseas romance. And foreign client women abroad will have fewer choices and options to communicate with U.S. gentlemen.

Many foreign women know that there are indeed thousands of happy and successful inter-cultural marriages and couples in the U.S., many among their own friends, neighbors and family. With the passage of this law, these foreign women know that they and their friends and family will have even fewer romance options in their country, where sadly, as contrasted with the U.S., there is a considerably higher domestic violence rate and a less desirable living condition and future. See: Domestic Violence a Global Health Problem (citing the U.N. World Health Organization Multi-Country Study, November 2005)(U.S. domestic violence rate is about 20% of women population, while the rate in most countries is much higher) See also: Global Domestic Violence Chart

In short, “international romance” is the real casualty, and the couples pursuing it, are the true losers.

THE "ANTI-MALE" AND "ANTI-COUPLE" BIAS OF THIS LAW

The feminist advocates of this law, including reportedly Bo Cooper, former INS General Counsel who sits on the feminist Tahirih Justice Center, successfully pushed this law by showcasing and vilifying the practices of seedy and distasteful “bad guy” international agencies: a very few unethical and criminal companies who are operating as fronts for human trafficking, the sex tourism trade and child prostitution. To help address some of these illicit activities, President Bush this month signed "The Trafficking Victims Protection Reauthorization Act of 2005", with stiff new penalties for trafficking offenses.

This new IMBRA law however misses the mark. It basically punishes all men regardless of their background (good, bad and indifferent) by “branding” them all abusers, as Wendy McElroy put it in her recent "iFeminist" Op-Ed piece at Fox News:

See: Mail Order Bride Law Brands All American Men Abusers

It forces U.S. client men to prove that they are NOT abusers to just say “Hi” to a woman abroad in a romance agency. Under the guise of protecting foreign women against men with possible domestic violence records, it inhibits and prevents any real romance communication before it can even begin, thus punishing men for being men, and killing a potential couple’s romantic courtship before it even can start.

The scant legislative history of this IMBRA law suggests that Congress' purpose and reasoning was limited in scope: to prevent U.S. citizen abusers (men) from taking advantage of the IMB industry, and foreign immigrant women, and the immigration process by submitting multiple visa petitions, to find new abuse victims. See: Statement of Rep. John Conyers, Jr. (D-MI) on the House Floor on December 17, 2005.

If that is the purpose, then this law is surely not the "least restrictive means" to achieve the governmental purpose as it imposes extensive document compliance requirements in all cases on all IMBs and all United States clients regardless of their background. In short, the law constitutes an overbroad, over-inclusive "overgeneralization". A less restrictive way might be for example to: 1. JUST enforce existing state and federal laws which offer a myriad of protections to abused citizens, 2. SIMPLY requiring that USCIS and State Department conduct criminal and domestic violence checks on the United States citizen, as a condition of the petition approval and visa issuance process, and share that information with the foreign lady before she secures her visa to enter the U.S. (as the this law states in another unchallenged portion of the Act), and 3. Or SIMPLY requiring that an IMB secure a federal license for operations, so that the DHS, for example, can be satisfied that the operation is a legitmate and has nothing to do with trafficking or abuse, and complies with all federal laws and any ethical standards.

IN LAYPERSON'S LANGUAGE, HOW WILL THIS NEW LAW AFFECT ME AS A U.S. GENTLEMEN SEEKING LOVE ABROAD?

Some of the things which this new law means for you are:

*You must submit a world of personal and confidential information to a private agency if you wish to communicate with a foreign woman for possible friendship and romance, including criminal and domestic violence background (even if you have no such record);

*You must wait until the information is translated to her primary language and is provided to her and she signs a written consent for you to receive her “personal contact information”;

*You must supply the same personal information if you file for a K Visa (fiancée or spousal visa);

*You are effectively limited to three (3) fiancée or spousal visas, unless you agree to a two (2) year waiting period or unless you can secure a special “waiver” from Homeland Security;

*You will likely pay more as a customer and have fewer options in foreign romance, since there will likely be less agencies willing and able to remain in business because of the onerous and even punitive documentary requirements.

IN LAWYER'S LANGUAGE, WHAT ARE SOME OF THIS LAW'S LEGAL AND CONSTITUTIONAL FLAWS?

Here’s a summary of some of this law’s flaws, in legal language:

*Undemocratic stealth nature of the law's passage: No opportunity to be heard, no hearings held, no witness testimony, no statistical evidence considered comparing or evaluating domestic vs. foreign marriages, divorces, or domestic violence incidents;

*"Chilling" of First Amendment free speech and free association rights of U.S. citizen gentlemen who only wish to simply communicate with women abroad; "Prior restraint" of free speech; "Chilling" of the "unrestricted right to marry" found in the U.N. Human Rights Declaration; the law is also probably “constitutionally overbroad” under the First Amendment since it restricts the rights of U.S. citizens with no criminal or domestic violence records and lumps them with those who do have such a record;

*Infringement of privacy rights of U.S. citizens compelled to disclose mandatory personal data to strangers in order to initiate any communicate with women abroad; Not the "least restrictive means" to achieve a governmental aim, as compared with for example a federal background check for a United States customer such as that imposed on a hand gun purchaser or government licensing of IMBs, if the aim is to prevent potential for domestic abuse and trafficking, or for example mandatory federal licensing of IMBs;

*Equal protection of the laws violations (similarly situated U.S. citizens treated unjustifiably differently): For example, the law requires mandatory disclosure of criminal and other data for communication and dating with women abroad, but not for communication and dating with domestic women; Also, the law requires mandatory disclosure of background info. and background check for filing a K Visa for a foreign woman and Consular interview, but not for local marriage license with a domestic woman;

*Equal protection of the laws of U.S. citizens pursuing K Visa petition process for fiancées and spouses are violated by the law’s requirements for mandatory information disclosure and extended background check, when this law fails to require the same for U.S. citizens pursuing the Petition I-130 CR-1 residency visa process for spouse;

*Unenforceable and impractical provisions rendering law void - For example there is a provision requiring a Consular Officer interview and documents delivered to the foreign national client in her "primary language", which is probably not realistically possible in certain locations such as the Philippines where many local dialects are spoken;

*Constitutional presumption in criminal cases of "innocent until proven guilty" is reversed in this law by mandatory criminal background disclosure as a condition of communication, thus imposing a presumption of guilt before innocence for gentlemen who simply wish to communicate with a foreign woman;

*Unfairly onerous, punitive and commercially impossible restrictions are imposed on "commercial free speech" rights of companies and businesses to engage in interstate commerce; Also, the "Limitation of Disclosure of Information" on an International Marriage Broker (IMB) preventing release of a woman's personal contact information to person or entity other than a United States client, even if a company wants to comply with the law requirements, unfairly restricts "commercial free speech" of companies and businesses.

*Unfair discriminatory treatment of businesses under the law: For example, the mandatory document collection requirements are imposed on an "International Marriage Broker (IMB)" for the supposed purpose of abuse protection of immigrant women, but certain exceptions are made for non-profit brokers and brokers who do not do international matchmaking, when the potential for abuse is the same. Similarly, these mandatory document collection requirements are imposed on services providing international matchmaking, but no such requirements are imposed on domestic matchmaking services.

WHERE DO WE GO FROM HERE?

Contact your Congressman, Congresslady and Senator and make them own up to the fact that they voted for this flawed law. Many of them do not even know that they voted for it through a “voice vote”, or exactly what they voted for. We can embarrass them into re-considering this bad law.

Tell your friends and neighbors and tell anyone in the media who will listen. Visit Websites and Discussion Forums and sign electronic petitions which are coming online to repeal this pernicious law. There are bound to be legal challenges to this new law, but we don’t need to wait for the courts to rule on this unfair law to make our voices heard.

PLEASE VISIT THIS LINK TO OUR ELECTRONIC
ONLINE PETITION, AND SIGN IT:
Repeal International Marriage Broker Law Petition

PLEASE ALSO VISIT THIS LINK FOR ANOTHER
ELECTRONIC ONLINE PETITION TO SIGN:
We Can Protect Both Immigrant Women
and Male's Privacy with Common Sense Laws

PLEASE ALSO VISIT THESE STOP IMBRA WEBSITES:
IMBRA.org

International Marriage Brokers.com

PLEASE ALSO VISIT THIS NEW ON-LINE-DATING-RIGHTS
DISCUSSION FORUM*:
(*This Office does not necessarily endorse or agree
with comments made on this forum.)
On-Line-Dating-Rights.com

SEE THIS LINK FOR HELP IN CONTACTING THE CONGRESS:
Contacting the Congress

DRAFT OF SAMPLE CONTACT LETTER TO CONGRESS
SENT VIA E-MAIL, REGULAR MAIL AND FAX:
(Feel free to modify as necessary)

DATE:____

SUBJECT: REPEAL OF THE INTERNATIONAL MARRIAGE BROKER LAW, H.R. 3402, P.L. No. 109-162, TITLE VIII, SUBTITLE D, WHICH VIOLATES MY FREE SPEECH AND FREE ASSOCIATION, PRIVACY RIGHTS, RIGHT TO COURT AND MARRY, AND LIMITS MY ROMANCE CHOICES ABROAD AND IS ANTI-MALE AND ANTI-COUPLE.

Dear Congressman, Congresslady and Senator:

I am a U.S. citizen gentlemen and reside in the United States, or am a foreign national woman, or am a friend, supporter or ally. I have read and heard about the passage of "International Marriage Broker Regulation Act of 2005" (IMBRA), H.R. 3402, Public Law No. 109-162, Title VIII, Subtitle D.

I am very concerned about the practical consequences of this law, which was passed with only a voice vote without any hearings or testimony or statistical evidence to support it, at the last minute just before the Holiday recess, after being tacked onto the back of other important legislation, namely, The Violence Against Women and Justice Dept. Reauthorization Act.


Did you vote for this International Marriage Broker law? Did you mean to vote for it?

As a single gentleman, foreign woman, or friend, supporter or ally, very interested in romance options outside my country for love, courtship and marriage, this law plainly violates the rights of U.S. citizens, and unfairly and improperly restricts my opportunities.

For me as a U.S. citizen gentleman, just to say "Hi" to a woman from another country through a legitimate romance agency or tour company, I am now forced to supply any legitimate romance agency or tour company all my police record information, domestic violence records, and much more (even if I have no such record). My free speech and privacy rights are being grossly violated, to say the least.

Why am I and other single American gentlemen being branded as "criminal abusers" under this law? Is there any supporting statistical or empirical evidence that incidences of serious abuse and death of foreign national women are any higher than that of domestic women, to justify this law?

This law requires that before "International Marriage Brokers" release a woman’s contact information to a person, they must provide her with a copy of the background collected on that person in her primary language, advise her of the rights and resources available to domestic violence victims in the U.S. in written form, and obtain her written consent to release her contact information.

It is obvious that romance companies, which have signed up a large volume of hundreds and even thousands of sincere women abroad seeking sincere and good-faith U.S. gentlemen spouses, will NOT be able to complete this kind of prohibitively costly and physically impossible commercial task. They will go out of business or go overseas or offshore. My choices as a U.S. citizen consumer or foreign woman consumer will be severely curtailed.

As a foreign woman interested in romance options with sincere U.S. citizen gentlemen, I know that there are thousands of happy and successful inter-cultural marriages, many among my friends, neighbors and even family. With the passage of this law, I and my friends and female family members will have even less options in my country, where there is higher domestic violence and a less desirable living condition and future.

If the purpose of the law is to provide some abuse protection for immigrant women, then that purpose is more than adequately served anyway by other less onerous and violative provisions of the law which say that the U.S. Embassy in the woman's home country will conduct an intensive criminal and domestic violence background check on the gentleman and supply her with all documentation available on him in her primary language, together with domestic violence protection information, BEFORE she secures a visa to visit the U.S.

The International Marriage Broker provisions are not necessary and only unjustifiably violate U.S. citizen rights of free speech and privacy, and stifle a foreign woman's romance options and opportunities.


I urge you to re-consider this unnecessary and pernicious law as it pertains to International Marriage Brokers, and vote to repeal it.

Thank you.


Sincerely,


NAME

ADDRESS
TELEPHONE NUMBER AND E-MAIL ADDRESS

Copyright©, 2006. All Rights Reserved. Gary Bala

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RULES FOR COMMENTS: Your comments, opinions and observations are welcome, subject to review before inclusion. We may choose to answer a general question about the new law, or a general question about a hypothetical scenario, but cannot comment on the law's application to a specific case or company or person. No attorney-client relationship is formed. Reliance on any question or answer is at the reader's risk.
----------------------------------------------------]]> General http://usaimmigrationattorney.com/nucleus/index.php?itemid=3 Mon, 16 Jan 2006 08:50:37 -0700 http://usaimmigrationattorney.com/nucleus/index.php?itemid=2 WELCOME TO OUR ARTICLE, FAQ SECTION AND BLOG ON THE INTERNATIONAL MARRIAGE BROKER LAW OR IMBRA, ONE OF THE MOST POPULAR ON THE INTERNET. PLEASE REVIEW OUR POSTING RULES AND JOIN THE DISCUSSION ON IMBRA WITH YOUR THOUGHTFUL COMMENTS AND OPINIONS. THANK YOU! BLOG COMMENTS ARE 24/7 AND TO THE PRESENT JAN. 2007
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A Brief Description of this Law and How It Affects You

President Bush signs VAWA and IMBRA Laws.
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FOR MORE INFORMATION AND READING ON IMBRA:


READ OUR OP-ED: The Backdoor Law That Sabotages International Romance
Office Press Release on IMBRAThe Purpose and Use of the Repeal IMBRA PetitionPR Web Newswire on IMBRA: Feb. 21, 2006PR Web Newswire No. 2 on IMBRA: March 13, 2006Prague Post Online on IMBRA, Quotes Gary Bala: Feb. 20, 2006Santa Fe New Mexican, Quotes Gary Bala: Sept. 24, 2006Also Interviewed on the IMBRA law by Congressional Quarterly Magazine, San Antonio Current Magazine, and New York Times in July and August 2006
Pease Also Visit Our Website: USA Immigration Attorney.com
Blog: Fiancee Visa - Spousal Visa
Our Contact E-Mail: gb@garybala.com--------------------------------------------------
Date: January 05, 2006

Dear Clients, Friends and Supporters,

On January 05, 2006, President Bush signed into law the "International Marriage Broker Regulation Act of 2005 (IMBRA)", Public Law No. 109-162, Title VIII, Subtitle D, January 05, 2006 [codified at 8 USC §1375a(d)(2) and (e)(4)].

SEE: White House Announcement

This law was attached to the Violence Against Women (VAWA) and Department of Justice Reauthorization Act of 2005 up for renewal (passed by House and Senate). No public hearings were conducted, or any witnesses questioned. There was no statistical evidence submitted regarding International marriages, subsequent divorces or incidences of domestic violence. In fact, all informal studies suggest that inter-cultural couples enjoy a divorce rate percentage much smaller than the national domestic rate of 50%. More discussion will certainly result from this as individuals learn of this law's enactment.

For the text of the final version of the new law, see this link (in Adobe PDF Format):


International Marriage Broker Regulation Act of 2005

WHAT IS THIS NEW LAW? WHAT DROVE IT?...Based on a very few unfortunate cases around the country of a foreign lady spouse who became a victim of domestic abuse, Congress passed a law to, understandably, offer some protection for these immigrant women. The law was passed as part of the passage of the Violence Against Women Act Reauthorization of 2005.

The new law is called the "International Marriage Broker Regulation Act of 2005". This law has many aspects to it. Among other things, it requires all U.S. gentlemen who petition for a fiancee or spousal visa to provide more personal background information to Immigration Service and the State Department than ever before. Opponents of this law argue that some of these restrictions go so far as to chill free speech and free association rights of U.S. citizens to even freely say "hello" to a potential foreign romance partner. The law also creates more restrictions in the process such as the number of fiancee or spousal petitions one can file, and how quickly a gentleman can file some visa petitions.

The law also requires a U.S. gentleman who wishes to meet his future fiancee or spouse through an "International Marriage Broker" to first submit extensive personal background information to the broker agency. The broker must then share that information with a future lady fiancee or spouse who must consent before the couple can start a communication and relationship.

WHY IS THIS LAW IMPORTANT? WHAT DOES IT MEAN FOR ME?

For the foreign ladies, the law is important because it tries to protect immigrant women by allowing them to review a potential gentleman suitor's background before starting a relationship. For the gentlemen, it means that they must be prepared to forego some privacy and offer some extensive background data. Perhaps, the best way to view this law is simply to acknowledge the obvious: in the long run, full disclosure is the best "relationship" policy.

WHAT EXACTLY ARE SOME OF THE PROVISIONS?

Some highlights of the new law:

1. NEW PETITION FORMS: New I-129F Fiancee and K-3 Spousal Visa petitions will require that the petitioner provide information on his criminal convictions for specified crimes, including violent offenses, domestic abuse and sexual assualt.(Interestingly, it would appear that the Petition I-130 Petition for the CR-1 legal resident visa for spouse seems to be unaffected.)

2. LIMITATIONS ON FILING MULTIPLE K VISA PETITIONS: (Revised July 2006) For the first time, limitations are placed on the filing of K Visa petition (specifically the K-1 Fiancee Visa). There are two (2) kinds of limitations: A. numerical limitation and B. time limitation. Under USCIS current intrepretation of Section 832(a)(2) of IMBRA, some petitioners will not be able to file a K Visa petition as of right. Numerical limitation: If a petitioner filed two (2) or more K Visa petitions ever in the past which were APPROVED by Immigration Service, then that petitioner needs to secure a special exception called a "waiver" from Homeland Security before successfully filing another K Visa petition. Time limitation: If a petitioner filed any single K Visa petition which was APPROVED by Immigration Service in the past 24 months, then that petitioner must wait at least 24 months from the filing date of the last petition before filing the next K Visa petition, or secure the special exception "waiver" from Homeland Security, before he can successfully file another K Visa petition.

3. MULTIPLE VISA PETITION DATABASE: Any person approved for a second visa petition or filing a third visa petition will be notified by Immigration that their case has been put into a special visa petition database which will track multiple petition filers and help identify those who might be abusing the system.

4. DOMESTIC VIOLENCE PAMPHLET BROCHURE: Homeland Security will develop and make available on USCIS, State Department and Embassy websites a domestic violence pamphlet brochure in 14 languages and revised every 2 years which discusses the visa process, adjustment of status, conditional residency, marriage and visa fraud, domestic violence abuse rights, where and how to get help and other warnings and notifications.

5. CONSULAR INTERVIEW: The Consular Officer at interview will provide the visa applicant with a copy of the fiancee or spousal petition, and information and documents in her native language on any past marital and divorce history, past criminal history and past domestic violence history of the petitioner. The Consular Officer will also answer any questions about the domestic violence pamphlet brochure. The Consular Officer will also ask the visa applicant if the relationship was facilitated by an International Marriage Broker and , if so, confirm that the broker provided the applicant with information or documents about the petitioner's background.

6. REGULATION OF INTERNATIONAL MARRIAGE BROKERS (IMBs): IMBs are required to check the National Sex Offender public registry and state public registry for each specific U.S. client, and to gather mandatory background information and documents on that particular U.S. client's past criminal history, including prostitution offenses, past domestic violence history, past marital and divorce history, past visa petition history, ages of any children under age 18, and all states and countries where the U.S. client lived since age 18. IMBs must then provide that information to the foreign client lady in her native language and secure a signed, written consent from her before releasing her personal contact information to that specific U.S. client. The law imposes stiff civil and criminal penalties of up to $25,000 and up to 5 years in federal prison for each broker violation.

WHEN DOES THE LAW GO INTO EFFECT? WHAT SHOULD I DO?

Most of the new law's provisions go into effect in sixty (60) days after date of enactment, which is March 06, 2006. The bottom line for gentlemen and foreign ladies with an international romance and courtship is, if possible, to finalize their engagement and file their visa petitions as soon as possible.

WHAT IF I DISAGREE WITH THIS LAW? HOW DO I COMPLAIN ABOUT IT?

Many gentlemen value their rights of privacy. Many gentlemen feel that this new law might unduly impinge on their rights of free speech and free association as U.S. citizens. Perhaps, the law may also intrude on equal protection rights of U.S. citizens who are required to provide extensive background data for foreign romances but not for domestic dating. If you wish to register and voice your concerns and complaints about this law, please contact your federal Senator's or local Congressman's office.

SEE THIS LINK FOR HELP:

Contacting the Congress

WHAT NEXT?

Needless to say, this new law mandates a significant change in the way the fiancee and spousal visa process will take place. It poses new challenges to brokers, U.S. clients and foreign clients alike in the international romance field. In the coming days and weeks, we will together monitor and follow the roll-out of this new law. Your comments, suggestions and ideas are welcome.

Good luck to all,

Gary Bala
USA Immigration Attorney
Pennsylvania USA
Web: www.garybala.com
E-Mail: gb@garybala.com
Tel: 610-446-VISA (8472)

FAQA FEW MORE QUESTIONS AND ANSWERS ABOUT THE NEW LAW:(*Taken from Actual Questions from You)
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DISCLAIMER: The following questions and answers are provided only as "gratis information", and do not constitute legal advice. No attorney-client relationship is formed. The reader relies on the answers at your own risk. Please consult an experienced attorney with the specific facts of your case.
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Q #1: What is the definition of "International Marriage Broker (IMB)"? Are there exceptions? Does this law apply to my favorite international correspondence website on the Internet?

Answer: IMB is defined very broadly in this law, as are all relevant terms in this law. (Bo Cooper, former INS General Counsel from several years ago, actually drafted this law; he sits on the board of directors of the feminist Tahirih Justice Center and intended to provide broad abuse protection to immigrant fiancées and brides.)

The definition of IMB, under Section 833(e)(4)(A), is any corporation, individual, or legal entity, whether or not existing under the laws of the U.S., who charges fees for providing dating, matrimonial, matchmaking or social referrals or is "otherwise faciliating communication between individuals."

There are, under Section 833(e)(4)(B), TWO IMPORTANT EXCEPTIONS, : 1) "The Non-Profit": a traditional matchmaking organization of a cultural or religious nature which offers its services on a non-profit basis under law, tyically a state-registered corporation, and 2) "The Non-Primary Business with Comparable Rates": a domestic dating service or other primary service whose principal business is NOT international dating and which charges comparable rates for comparable services to all individuals, men and women, domestic and foreign.

Your favorite international correspondence website on the Internet would in fact be subject to this law, IF the exceptions enumerated above do not apply.

Some U.S. clients and IMBs are asking if the IMB would "qualify" for an exception if they don't charge fees for the lady's personal contact. The safe answer would appear to be: only if the other qualifications of Exception No. 1 apply. An IMB's claim to an exception based in the statement that "We don't charge fees for lady's contact or any dating service", but coupled with an admission that the company generates revenue and profits, however small, from such things as advertising fees for related services such as flowers, candy and cards, Google "ad-words", or charitable donations from members, carries a risk that the "non-profit" exception does not genuinely apply.


Q #2: How are the terms “U.S. client” and “Foreign National Client” defined? Does this law apply to women U.S. citizens who seek a male partner abroad through an IMB?

Answer: The definition of "U.S. client" is any U.S. citizen or other person who resides in the U.S. who makes a payment or incurs debt for an IMB's services.

The definition of "foreign national client" is anyone outside the U.S. OR a legal permanent resident (LPR) in the U.S. who utilizes the services of an IMB.

The definition of “U.S. client” is gender-neutral, and thus the law would apply to both gentlemen U.S. clients seeking foreign lady nationals, and lady U.S. clients seeking foreign gentlemen nationals.


The definition does NOT say just U.S. citizens living in the U.S. Thus, the law would seem to apply to a U.S. citizen working abroad in a foreign country.


Q #3: Will this law really be enforced and, if so, how?

Answer: It remains to be seen exactly how this law will actually be enforced and how vigorously and quickly. (There is a 60 day waiting period before the law’s provisions take effect, meaning March 06, 2006.)

On its face, the broker provisions of the law delegate enforcement to the Justice Dept, and thus the U.S. Attorneys Offices and the FBI. It appears that a broker will first receive a "citation” for violation followed by a Notice of Hearing for an “agency hearing on the record”. This may be an immigration judge at the various immigration courts around the country or possibly before a federal magistrate. But that part will become more clear as time passes.

There are civil and criminal penalties on the broker for violations. There are penalties also on “any person” for “misuse of the information”, that is on those who use or disclose the U.S. client’s background information without consent, or who use it to harass or intimidate anyone.

It is important to note that this law does not replace state laws, but supplements them. The law states explicitly that it does NOT “pre-empt” or supercede any rights, penalties, remedies or enforcement under any state law.


Q #4: Does this law apply to "U.S. citizen" gentlemen customers only? Or does the law also apply to "foreign citizen" gentlemen customers,such as those from Canada, Australia, Germany and U.K.? Is the IMB required to collect the background information from ONLY United States clients or all clients, including those in a foreign country?

Answer: First off, this law applies NOT to "U.S. citizens" but to “United States clients”, which is broadly defined as a U.S. citizen OR any person residing in the U.S. Thus, "United States clients" are required to comply with this law, and supply the mandated background information and documents. And IMBs who service United States clients are required to secure the background information from them.

As to "foreign citizens" abroad such as those from Canada, Australia, Germany and U.K., another provision of this law called "Limitation on Disclosure" would appear on its face to prohibit IMBs from providing personal contact information of a foreign lady to such a foreign client.

Section 833(d)(4) says: "LIMITATION OF DISCLOSURE: The International Marriage Broker shall NOT provide the personal contact information of any foreign national client [lady] to any person or entity OTHER THAN A UNITED STATES CLIENT". (Emphasis added).

Thus, it would appear that on the plain face of these words that even if an IMB were willing to comply with securing the mandated background information from a "foreign client", the IMB cannot sell a foreign lady's personal contact information to a foreign gentleman. This, in our view, would be the conservative and safe reading of the law in terms of compliance.

There is another view that this provision does NOT at all affect foreign citizens or IMBs releasing contact information to foreign citizens, given a principle of court "statutory construction" which says: give effect to all provisions of a statute whenever possible if they can be reconciled. Under this narrow reading of the IMBRA statute, the term in Section 833(d)(4) "other than United States client" must be read together with the sentence which follows (and the whole statute, if there is no conflict). The following sentence says: "Such information shall not be disclosed to potential United States clients or individuals who are being recruited to be United States citizens or representatives."

This narrow view holds that the term "other than United States citizens" is intended by the drafters only to refer to such "middlemen" or potential United States clients, not foreign citizens, especially in light of the apparant silence of the statute or the legislative history to address foreigners anywhere else. Thus, foreigners can freely purchase and IMBs freely release the lady's contact information with compliance restrictions.

We think that the conservative view, namely that the term "United States client" COULD refer to a foreign citizen and, thus, that the IMB should be cautious in terms of saying that it doesn't need to comply with this law as to foreigners, is the safer reading.

In our view, 1) the statute's drafters plainly appeared to consider having the statute reach abroad with language such as the definition of IMB, as any company "whether or not existing under the laws of the United States" and the definition of "foreign national client" as a person abroad who is a intended beneficiary for "abuse protection" under this law, 2) the legislative history does not state or infer that the law only applies within the U.S., 3) there is a glaring absence in the statute of express "limiting language" such as: "NOTHING in this statute WILL APPLY to or affect foreign citizens or IMBs dealing with foreign citizens" OR "The provisions of this law will ONLY apply to United States clients, and not foreign citizens or IMBs dealing with foreign citizens".

We think that the drafters most probably did not want to treat a foreign citizen any different or more lenient than a United States citizen in terms of IMB's background document compliance. Otherwise, we would be left with the absurd result of a U.S. IMB requiring extensive background information of United States clients only, but allowing foreign criminals, abusers and terrorists to freely purchase any lady's contact with no restrictions, something the drafters could NOT have reasonably have intended, if they wanted as they did to lessen the potential of crime and abuse.


Q #5: Does this law apply ONLY to U.S. brokers and agencies, as opposed to "foreign" based or "offshore" brokers and agencies?

Answer: APPLICABILITY OF LAW: The simple and quick answer is: Yes, the law applies only to U.S. companies owned and operated in the U.S., (even if they have a matchmaker subsidiary or sub-division abroad.) It would likely be very difficult at best to enforce this law on a “foreign company”, IF IT IS TRULY FOREIGN-BASED, meaning with full operations abroad and all staff abroad and owners living abroad (or a U.S. owner who is living and operating abroad), and so on.

But before foreign owners celebrate their “free pass”, there are some important complications and caveats. For example, please note that the law’s definition of IMB is NOT limited to a U.S. company. [It says ANY company WHETHER OR NOT organized under U.S. law. See Section 833(e)(4)(A)].

“Foreign national client” and “United States client” definitions are also NOT limited to those who deal with a U.S. company only. What about a foreign company which advertises in the U.S., and displays a website hosted by a U.S. server with a U.S. URL? Or which otherwise actively solicits U.S. customers and derives most of their revenue from U.S. customers? Or who use a U.S. payment processor such as PayPay, partnered with Wells Fargo Bank (U.S. bank)? Or who have a U.S. P.O. Box or U.S. address on their website or who use an authorized sales agent or sales rep. in the U.S.? What about the applicability of federal mail fraud and wire fraud laws to overseas companies under “long-arm” statutes?

ENFORCEMENT OF LAW: One knowledgeable person I spoke with takes this view: In a special or "shock" case where it may be warranted, this law can POSSIBLY be enforced on a foreign owner (or a U.S. owner living overseas) as follows: A citation is issued for a known broker violation to the owner, and he is convicted in “absentia”, with the record so noted. When he tries to visit or re-enter the U.S., USCIS officers at Port of Entry enforce the conviction on him by apprehension. Further, U.S. authorities may also try to DISCOURAGE the IMB's U.S. customers or U.S. website host server or U.S. payment processor from continuing to do business and paying the IMB by serving notice on them that the IMB owner is wanted on a broker violation conviction.

PROBLEM OF CONSULAR INTERVIEW: Another problematic issue for the foreign owner (or U.S. owner living overseas) is the Consular Interview for the visa. Under this law, the Officer is required to ask the lady if they met through an IMB (as broadly defined in that law to include a foreign-based IMB). IF the answer is YES, he MUST ask if the IMB provided the lady with all the background client information on the U.S. client and secured her signed written release before the couple communicated. If NOT, then the Officer presumably, as part of his wide discretion to issue the visa or not, MAY choose to DENY issuance of the visa or at least place the case into "ADMINISTRATIVE REVIEW" because of the broker violation (even though it was a foreign-based company).

The rationale for a denial or administrative review of the case could be that there might be a fair doubt regarding the sincerity of the couple's relationship, a qualifying requirement for the K Visa. Such a doubt might exist because the lady applicant was denied the opportunity to start or continue the relationship with the gentleman, based on the information and documents about the gentleman's criminal past that she should have known about from the very beginning from the IMB.

In fact, as a practical matter, some lady fiancees may choose to terminate the visa application and end her relationship with the gentleman, if she finds out for the first time at the Embassy from the Consular Officer's government background security check of her suitor's criminal past, such as for example a series of ex-wife abuse convictions. (Many background checks are not black or white but gray. In other words, the gentleman's record might not be bad enough to deny the visa, but might be "bad enough" in the lady's eyes to terminate her relationship and cancel the visa request.)

We know that many people find it difficult to believe, and may even be amazed to hear, that there is any possibility or risk that the lady's visa at the Embassy could actually be in jeopardy because of a broker violation. Some ask how can that be if she "qualifies" for the visa. Some ask would not the Consular Officer simply document the broker violation and create a list of broker violators for future investigation, without penalizing the lady's visa.

Certainly, the Consular Officer CAN choose this course. The issue is does he have to?

Our point is NOT that the Consular Officer could not or even would not issue the visa under this circumstance, only that the Consular Officer does not have to do so. In other words, the Consular Officer is never bound to or required to issue a visa anyway even under normal circumstances, but especially not if there is a legal violation in the record as part of the visa case. In short, there is a risk which exists, and it's better to know about that risk rather than to ignore it or pretend it does not exist.


Q #6: Does this law's enforcement focus ONLY on the brokers and agencies, or does it also apply to the U.S. gentlemen customers?

Answer: The law's provisions and enforcement focuses primarily on the IMBs, and their obligations and penalties. This does NOT mean however that there are no penalties at all on the U.S. clients.


As to the U.S. client, it is true that under this law there are no explicit penalties on the U.S. client in dealing with the IMB, if he makes misrepresentations, falsehoods or submits false information. Remember though that this law does NOT pre-empt or over-ride your state law. So if the information the U.S. client submitted to the IMB was false under a signed certification or affidavit, then state law penalties for perjury and false information could apply.

As to the IMB, it would seem though that NO ADDITIONAL liabilities attach to the IMB if it was the U.S. client who submitted false information, and that the IMB can rely on the attestation and certification of truthfulness of the U.S. client. Similarly, if the IMB did anything wrong, nothing in the law seems to penalize the U.S. client for that. In other words, the IMB and the U.S. client are each responsible for their own liabilities, not the other’s.

Keep in mind that the above applies only at the IMB stage of the couple’s communication and relationship. Once the gentleman is serious about the lady and chooses to file a U.S. K-1 Fiancée Visa petition with Immigration, he MUST certify that all information supplied by him in his petition package is truthful, under penalty of federal perjury: up to $25,000 fine and 5 years in federal prison.

Further, there is a civil and criminal penalty in this law for "Misuse of Information", which applies to anyone who knowingly discloses or uses the U.S. client's background information to threaten, intimidate or harass. Section 833(d)(3)(C).


Q #7: The law seems to focus on the IMB's RELEASE OF the foreign national client (lady)'s "personal contact information" TO the United States client, and in that case imposes extensive compliance requirements. So what if the IMB simply does NOT do that type of release of information, but just enables and allows the U.S. client and foreign lady to communicate in SOME OTHER WAY, such as the lady making FIRST CONTACT through the IMB, or the couple communicating through a IMB-sponsored discussion forum or via a central IMB mail box, men's personal listing service, or agency personal meeting or tour social or other IMB platform? Can the IMB thus escape compliance requirements?

Answer: We think that the IMB attempting to avoid IMBRA statutory compliance based on the argument that they are enabling the couple to meet and communicate in some other form or fashion OTHER THAN RELEASE OF the lady's contact information GOING TO the U.S. gentlemen is both risky and problematic.


While it is true that Section 833(d)(3)(A) focuses on regulating the IMB's release of the lady's contact data going to the U.S. gentleman customer, the definitions used in this law appear so broad that there is reason for pause and cause for troubling concern, in our view. For example, the definition of "IMB" is NOT only a correspondence company which releases personal contact information to a foreign national client lady, but any company "that charges fees for providing [any type of] dating, matrimonial, matchmaking services or social referrals" (Emphasis added for clarification purpose from our viewpoint).
Moreover, this definition of "IMB" goes on and includes a company that NOT ONLY releases a foreign client lady's personal contact information BUT IS ALSO "otherwise faciliating communication between individuals". Section 833(e)(4)(A). Even further, the definition of "personal contact information" is more than only the foreign lady's address, phone number or E-mail address, but also any "forum to obtain such information, that would permit individuals to contact each other..." Section 833(e)(6)(A). Thus, under all these definitions, this law seems to reach out and cover IMBs offering any type of reasonable platform for helping a U.S. client gentleman and foreign national lady to communicate and meet, for purpose of romance, love and marriage.



Q #8: How, when and to whom do I, as a U.S. client gentlemen customer of a romance agency, company or correspondence website defined as an IMB under the new law, provide the required client background information or documents, such as criminal background, domestic violence history and prior orders, and so on?

Answer: According to this new law, this information or documentation is supplied by the U.S. client directly to the IMB agency or company at the time the the U.S. client signs up for and purchases the services of the IMB. At this time, there is no prescribed or pre-fabricated U.S. government form. The IMB is responsible for collecting and gathering this information or documentation from each U.S. client, storing it, translating it to the primary language of the foreign national client and securing from her a signed, written consent as to that specific U.S. client BEFORE the U.S. client can obtain her "person contact information" or enjoy a social meeting with her.

IMBs will probably develop and make available either electronically on their website or via E-Mail, Regular Mail or Fax, or in their office, a client background information questionnaire of some type for U.S. clients to fill out and otherwise respond to, if the both IMB and U.S. client wish to comply with this law. Some IMBs have already done so. There are also background check service companies which can assist the U.S. client is securing his background information and having it translated to the lady's native language, if assistance is needed (For example: IMB Service Agency, LLC E-Mail:imbserviceagency@yahoo.com)


Q #9: When does this law go into effect? What if I already filed my K Visa petition, or plan to file it, before the law goes into effect? I am the owner of an IMB; how will the effective date of the Act affect my company?

Answer: The law allows a brief "grace period" before taking effect.

Section 833(d)(7)(A)states: "EFFECTIVE DATE - IN GENERAL...this subsection shall take effect on the date which is 60 days after the date which is the date of enactment of this Act." The law was signed into enactment by the President on January 05, 2006. Thus, the law's provisions, with the exception of the development and distribution of the newly-mandated Homeland Security domestic violence pamphlet, go into effect in 60 days or by 12:01 AM U.S. Eastern time on March 06, 2006.

THE PROVISIONS WHICH APPLY TO VISA PETITIONERS: U.S. citizen visa petitioners will be required to submit newly revised Form I-129F petitions expected soon, which will ask for new information and documents about criminal background and domestic violence history and more. More extensive security name checks will be done. There is also an effective numerical limit of the number of K Visas a petitioner can probably successfully secure, unless a 2 year waiting period is satisfied or a special "waiver" is obtained.

As for K Visa petitions which have been filed and not yet approved BEFORE the effective date of the law, March 06, 2006, those will likely NOT have to comply with the "petition requirements" for initial filing. These petitions will have "beat" the deadline. Immigration Service though may choose, in specified cases, to send out an RFE (Request for Additional Evidence) for petitioner's police records or domestic violence orders.

It is important to note however that AFTER APPROVAL in these cases AND AS PART OF THE VISA ISSUANCE PROCESS, all of this law's requirements about more intensive security checks, and Consular Interview questions and discussion, and Embassy Document requests will apply.

THE PROVISIONS WHICH APPLY TO IMBs AND U.S. CLIENTS:
These provisions require the IMB to collect background information or documents from the U.S. client gentleman, and supply them to the foreign national women in her primary language, and to secure from the woman her signed written consent as to that specific gentleman BEFORE her contact information is released to the gentlman.

The "Transaction" Process (Release of Foreign Lady's Contact to U.S. Client): Starting on March 06, 2006, IMBs will be required to comply with the new law for all "transactions". In other words, before the woman's contact can be released to the gentleman, all of the document compliance requirements must be met. Compliance officers can check for IMB compliance quite easily by visiting the IMB's website, calling the IMB office, and asking the IMB's customers and clients if the IMB is asking for their background information or documents.

It would also be rather simple for a compliance officer to simply go "undercover" and pose as a new customer "John Doe" and call or E-mail the IMB to see if background information and documents are being asked for, being translated and provided to a foreign woman for her signed consent.

The Immigration Petition Process: Starting on March 06, 2006, any newly filed I-129F petition, which is expected to be revised, will ask the U.S. citizen petitioner to disclose all criminal history and past domestic violence and more. The petition, as before, will ask the petitioner how the couple met. If it was through an IMB on March 06, 2006 or after, Immigration may request information about the IMB and proof whether they completed the compliance requirements.

If however the couple met through an IMB BEFORE March 06, 2006, and thus BEFORE the law's compliance requirements went into effect for the IMB, then it would be expected that, by logic and fairness, the Immigration Officer would apply the standard administrative protocol, "grandfathering", and not inquire further about the IMB and its conduct.

The Consular Interview Process: Starting on March 06, 2006, the Consular Officer is duty-bound to ask at the Interview if the couple met through an IMB, and if so, the identity of the IMB, and if the IMB provided the gentleman's background information or documents to the foreign woman and obtained her signed consent.

If however the couple met through an IMB BEFORE March 06, 2006, and thus BEFORE the law's compliance requirements went into effect for the IMB, then it would be expected that, by logic and fairness, the Consular Officer would apply the standard administrative protocol, "grandfathering", and not inquire further about the IMB and its conduct.


Q #10: Does this law apply at all to couples who did NOT meet through an IMB?

Answer: Yes. This law does NOT APPLY ONLY TO IMBs. There are provisions in this law which apply to ALL petitioners and couples, regardless of how they met. They apply to ANY K Visa petititoner, even those who did NOT meet their fiancee or spouse through an IMB, but for instance just through friends or family.

Examples are: 1) The "Petition Provisions" of IMBRA. These say: the I-129F Petition must include documents and information about petitioner's past criminal convictions, including domestic violence convictions must be submitted under signed certification. New I-129F Petitions will likely be distributed by USCIS in the near future for this purpose. Section 832(a)(1).

2) Numerical limitation on number of approved K Visa petitions. This says (nder USCIS current interpretation): A Petitioner cannot be approved for a third (3rd) K Visa petition unless Petitioner first secures a DHS-approved waiver, or if one petition was approved within the past 24 months, the petitioner must waits two years from date of filing of last approved petition or must secure a DHS-approved waiver. Section 832(a)(2). Another part is: The placing of information about Petitiner's mltiple visa petitions in the new K Visa database and the required notices sent out to the lady beneficiary from that database. Section 832(a)(4).

3) Consular Interview requirements and Adjustment of Status Interview requirements. These say that the Consular Officer at Embassy Interview or Immigration Officer at Green Card Interview must review and answer questions about Petitioner's domestic violence and other criminal record with the lady beneficiary in her primary language. Section 833(b).

4) The Domestic Violence Phamplet/Brochure. Section 833(a). This must be distributed and explained to the lady beneficiary regardless of how the couple met, either through an IMB or outside of an IMB.

5) More intensive security checks and information sharing. Given that Petitioners will be asked for more information and documents with their I-129F Petition, DHS and State Department will likely intensify security and background checks on Petitioners and have more and better information-sharing.


As for timing of these government background checks, though there may be exceptions, they are not normally conducted as a general rule until the Petition is filed with USCIS, regardless if the couple met through an IMB or not. A copy of the I-129F Petition (with the gentleman's answers and any supporting documents) and the results of the government backround checks with domestic violence help information are shared with the lady beneficiary no later than at the Consular Interview. Thus, the lady beneficiary will be privy to more information and documents concerning her Petitioner than ever before, regardless of how the couple met.


Q #11: Does this law apply to BOTH men AND women United States Clients who seek a romance partner abroad, or ONLY to men United States Clients who seek romance with a woman foreign national?

Answer: The new law applies to ALL MEN AND WOMEN United States Clients who seek a foreign national client romance partner abroad, MAN OR WOMAN. The language of the law is carefully "gender-neutral".

The only reason that you might see articles and discussion so-often referring to MEN United States Clients and WOMEN Foreign National Clients is for easy reference, since the very vast majority of United States Clients in the international romance field are men seeking women romance partners.


Q #12: What is the purpose of this law asking for my criminal history and past domestic violence records? Does this mean that if I have a criminal history or past domestic violence record, my visa petition or my fiancee or spouse's request for visa will be automatically denied? How do I "get around" this problem, if I can?

Answer: The purpose of the law asking for the U.S. citizen petitioner's criminal records and past domestic violence records seems to be two fold. First, the law is meant to provide some abuse protection to foreign immigrant women. By allowing the foreign national woman to review and consider the criminal history and past domestic violence records of her gentleman in her language, the law purports to help her decide if she wishes to start or continue her relationship, or secure and use her visa to visit her suitor in the U.S.

The second purpose in requiring criminal and domestic violence records of the gentleman petitioner is to assist the Consular Officer in excercising his or her discretion in issuing the visa. Needless to say, a criminal history or domestic violence by itself would not normally result in an automatic denial of a visa. But it is indeed a factor which can be taken into account by the Consular Officer in his discretionary decision-making, with much depending on how recent and severe the history actually is.

Naturally, criminal history and domestic violence records involving violent sexual offenses, or criminal fraud or mispresentation, which are very recent and resulted in felony conviction and serious incarceration are far more grave than for example, a simple arrest 20 years ago for DUI.

In some cases, we have seen the Consular Officer require a gentleman petitioner with a serious criminal or domestic violence record to secure a "co-signer" as a condition of allowing the issuance of a visa. Currently, the regulations and guidelines only allow for a "financial co-signer". But the Consulate has interpreted the guidelines as only guidelines, and can call for a co-signer even when the petitioner's income and assets appear to satisfy the poverty threshold, if otherwise warranted.

We do not suggest to people that there is a good way to "get around" all this; it is far better to tell the truth and comply with the rules. If in the unfortunate event that there is a petition or visa denial, then all the legal remedies which might be available should be reviewed, such as appeals, motions to re-consider, motions to re-open, waivers and new visa petitions.

People who wish to review their own criminal and domestic violence history should contact the county courts they have dealt with in the past which may have issued orders or recorded hearings. Many state police and state attorney general offices allow you to order your state-wide criminal history information. Check with them or just visit their websites on the Internet or through a search engine. There are also private services on the Internet and otherwise who may be able to secure your criminal history information, for a fee.

Other websites worth investigating:
1. The National Sex Offender public registry and your state public registry.
See: NATIONAL SEX OFFENDER PUBLIC REGISTRY
2. The FBI Criminal History Records Check.
See: REQUEST FOR FBI IDENTIFICATION RECORD


Q #13: (Revised July 2006) I heard that there is a numerical limit to the number of K Visa petitions someone can file? What is that all about? I also heard about time limiation to K Visa petition filings, namely a two (2) year waiting period. I also heard about a special "waiver" (or exception) that is possible for people who have filed two or more K Visa petitions before or for someone who had a K Visa petition approved in the past 24 months? How does all that work?

Answer: (Revised July 2006) There is both NUMERICAL limit and TIME limit to the number of "K Visa" petitions a U.S. Citizen petitioner can file under this new law (specifically the K-1 Fiancee Visa.) See the wording of Section 832 (a)(2). However, the law words these limits in a complicated fashion. Our office's initial reading of this Section ( which was a CONSERVATIVE reading more favorably to a multiple filer) was based on the use in that Section of the word "AND". For example, we disagreed with those commentators who called it a "lifetime limit" of three (3) K Visas (fiancee or spousal), because the exact words of this law do NOT say "you are limited to three lifetime K visas".

Our office's initial CONSERVATIVE reading of Section 832 was as follows: The exact wording of the law is that a gentleman petitioner's K Visa petition cannot be approved unless the officer first confirms that 1) the petitioner did NOT previously file two or more APPROVED K VISA PETITIONS (Under the I-797 Notice of Action of Approval) filed two (2) or more K Visa petitions in the past at any time, AND 2) the petitioner's last approved petition was approved more than 24 months ago. Under our CONSERVATIVE reading, only if both of the two conditions are met ("AND" reading), must the gentleman petitioner secure a special "WAIVER" from Homeland Security. Section 832(a)(2)(A) & (B) & (C). In other words, if petitioner filed 2 or more K Visa petitions, AND the last one was approved in the past 24 months: petitioner needs a waiver.

USCIS has taken instead a more LIBERAL intpretation of this provision in Section 832 (a)(2). USCIS reads this section to say that the Officer must be sure that BOTH of the items, 1 and 2 above, are NOT true before they will approve the present K Visa petition. In other words, if EITHER 1 OR 2 ARE TRUE, they will not approve the K Visa petition. In short, if one ever filed in the past two or more K Visa petitions, then they must file for a waiver. OR, if one has a K Visa petition approved for them in the past 24 months, then they must wait 24 months from the filing date of the first petition before filing for the next one, or otherwise secure the waiver.

As for what a waiver actually is, the new law does not define precisely what the "waiver" is or the requirements for such a waiver. However, the Immigration Service regulations implementing the new law, which are expected soon, will undoubtedly address these issues. We do know that a waiver must be submitted in writing, together with the reasons for the claim of waiver and supporting documentation. Any waiver is planly a matter of "fairness and equity", and thus it would appear that a showing of some compelling equitable circumstances is necessary to make a claim to a potential successful waiver.

If the waiver is anything like existing I-601 waivers which apply to visa denial cases and are based on a legal concept called "extreme hardship" of a U.S. citizen, securing such as waiver will probably not be easy or quick, and would likely be granted only in a minority of cases where the equity lies in favor of the petitioner.

Section 832 (a)(2)(B) does state that such a waiver shall NOT be granted if the petitioner has a record of violent criminal offenses. For one Congressman's view on the waiver topic, see Statement of Rep. John Conyers, Jr. (D-MI) on the House floor on December 17, 2005, just moments before the law was passed by "voice vote". See: Statement of Rep. John Conyers, Jr., Scroll down to Paragraph 30 on this Page

The cold fact is that the first group of 500 Waiver Request cases over the next 6 to 8 months will become the "test cases", and Immigration and the courts, with their decisions, will offer us greater guidance as what constitutes a successful Waiver Request. Our Office will handle selected waiver cases. See: Waiver Cases

Combined with all of the above, the new law mandates the creation of a K Visa Petition Tracking Database, which will track and monitor all K Visa petition filings and likely discourage multiple filings and multiple filers. Our office is thus advising people that they probably will no longer enjoy the prospect of unlimited "bites at the apple" for K Visas.

You can read the actual words of the law here: IMBRA Law


Q #14: Does this law affect U.S. citizen gentlemen and lady beneficiaries who are already in the United States under a K-1 Fiancee Visa and K-3 Spousal Visa?

Answer: Yes. This is addressed in Section 833(b)(1)(Visas and Adjustment Interviews) & (b)(2) (Family Based Applicants). At the adjustment interview, the Immigration Officer is required to provide the results of any government background check on the gentleman to the lady, supply to the lady any of the gentleman's criminal convictions and domestic violence orders in her primary language, and give her a copy of the government domestic violence pamphlet and explain it to her in her language. The Immigration Officer is also required to ask the lady if the couple met through an International Marriage Broker, and if so, obtain the IMB's identity and confirm that the IMB provided to the lady all the background information and documents required under this law.

(*NOTE: Naturally, IF the couple met through an IMB BEFORE the effective date of the law March 06, 2006, the IMB was not required to gather the gentleman's background information and documents, and thus the Officer would have no reason to pursue the IMB question at the Adjustment Interview. If however, the couple met through an IMB AFTER March 06, 2006, then the couple should indeed bre prepared to answer the IMB question at the interview.)


Q #15: What if a U.S. Citizen gentleman marries a foreign citizen lady in her country and tries to "bypass" all the requirements of IMBRA by simply filing the I-130 Petition for Alien Relative (Spouse) ONLY, and thus pursuing the CR-1 (IR-1) Resident Visa ONLY? I heard that this procedure is a "magic loophole" around IMBRA; is that true?

Answer: In our view, one needs to be cautious about "magic loopholes" touted by rumors and the Internet "chat boards".

It is true that a close reading of IMBRA will reveal that the most of the text applies itself only to the I-129F Petition for Alien Fiancee and the K-1 Fiancee Visa. Specifically, for example, the Visa Petition limit section, Sec. 832 (a)(2) which is the restriction on the approval of an I-129F Petition where there has been two or more such petitions approved before, or where there had been one such petition approved in the past 24 months, unless Homeland Security approves a special exception "waiver", applies itself to the I-129F Petition (i.e. K Visas), and not I-130 Petition. Thus, it might be true that no written waiver would need to be requested by a petitioner with multiple-visa petition approval history.

On the other hand, we think that there really is no "magic loophole" or "free pass" found in IMBRA to many aspects of an I-130 Petition filing only (i.e. securing of the CR-1 Visa only).

One example is the multiple-visa petition database. Every fiancee or spousal petition (which would seem to include I-130 Spousal petitions) would be put into the database, and thus could trigger the future need for a waiver in case the petitioner later filed a I-129F Fiancee Visa petition. The notification requirements would be another example. Under circumstances where the petitioner has a history of multiple visa petition filings, to include past I-130 spousal petitions, Homeland Security would be required, in case petitioner filed a future fiancee visa petition, to notify the Beneficiary in writing of petitioner's past multiple filings.

Another example is the background security check. These checks are just as intense and careful for an I-130 Petition (i.e. CR-1 Resident Visa) as they are for a I-129F Petition (i.e. 90-Day K-1 Visa). Any checkered or troubled past of the petitioner, in the way of criminal records, or domestic violence, or past visa and immigration history would likely come to light anyway, and be told to the Beneficiary at interview for her self-protection. (In other words, she would be told anyway of all of his past filings and past criminal and domestic violence history, even though he is doing the I-130 Petition only, and thus he should plan to tell her just as he would have to if the waiver requirement applied anyway under the I-129F Petition.)

Further, questions about how the married couple first met is an entirely proper area of interview questioning even before IMBRA under an I-130 Petition for CR-1 Visa. Thus, if the married couple first met through an international marriage broker, that information would be disclosed and reviewed, together with IMB compliance issues, just as if the petition in issue were an I-129F K Visa petition. A marriage certificate is viewed as prima facie evidence of a sincere marriage relationship, but Consular Officer discretion allows questioning beyond and behind the marriage certificate to determine the legitimacy of on-going marriage and lack of fraud, which was true even before IMBRA. In other words, the prima facie evidence of marriage certificate is a "plus" in the case for visa issuance, but by no means a "guarantee".

In fact, ICE or Immigration and Customs Enforcement has recently intensified investigation and arrest of marriage and immigration fraud cases. See Operation Newlywed Game: http://www.ice.gov/pi/news/insideice/articles/InsideICE_122105_Web1.htm

The domestic violence brochure called for by IMBRA (still not available as of early 01/2007) is yet another example of how the I-130 Petition filing for CR-1 Visa does NOT change how IMBRA applies to a case, from the I-129F Fiancee Visa Petition filing. Section 833(b)(2) specifically states that the domestic violence brochure shall be given to spouses as well as fiancees at all family-based interviews at the Consulate or for adjustment of status in the U.S. Thus, the I-130 petition filing only does not blunt the domestic violence brochure.

The primary intent of IMBRA, at least on paper in the words of Rep. Conyers on the House floor in December 2005, was to prevent U.S. citizen "domestic abusers" from limitlessly repeating their acts on multiple foreign fiancees and spouses. It is unlikey in our view that Immigration Service or the Courts would allow this purpose to be thwarted by the filing of an I-130 Petition only rather than the I-129F Petition, if IMBRA is otherwise upheld on constitutional grounds.

Consider the following example, albiet stark and extreme. A U.S. Citizen, with an extensive history of felony convictions for various assaults and abuse protection orders from his past 4 ex-wives, marries a lady in Colombia whom her met through an IMB and files a I-130 Petition ONLY for his wife's CR-1 Visa, in hopes of "bypassing" the waiver and other requirements of IMBRA with the use of the "magic loophole".

His last felony assault conviction was for assaulting his ex-fiancee from Russia, whom he brought over on a K-1 Visa approved 6 months ago. He also has a felony conviction for assaulting his previous ex-fiancee from the Philippines, whom he also brought over on a K-1 Visa approved 18 months ago.

He may be able to "beat" IMBRA's language requiring written waiver from Homeland Security based on the two-visa limit. However, it is not likely that this man will effortlessly secure the CR-1 Visa without full disclosure, full documentation, complete investigation and administrative review, with the attendant risks of processing delay, visa denial or the imposition by the Consular Officer of a co-signer requirement for abuse protection reasons.


Q #16: How the “Buyer-Seller” public reacting to this law so far?
Answer: It is always risky to categorize or label peoples’ response to this law. Of course, it is obvious that each person is individual and thinks for himself. Yet, in the brief few days of this new law, the "buyer & seller" public seems to divide into roughly into 4 groups:

1) THE DISBELIEVERS – These people may still be in a state of “denial”, and probably need to reflect quietly and read this law.
2) THE NEIGH-SAYERS – These may be people who under-estimate this law, depreciate its potential effect, and almost “pooh-pooh” it. They take the view that the new law just means that everybody has to give up a little more information, and that it won’t have much real impact, or that it will take Uncle Sam years to enforcement it, so it doesn’t really matter all that much. (We hope that they are right, but are not optimistic about that.)

3) THE DOOM-SAYERS – This group sees a monumental change in the landscape of international romance and the visa process: Brokers, agencies, tour groups, and correspondence websites leaving the business, and U.S. customers and foreign ladies basically “scared off” by suffocating document requirements, etc. For this group, this new law might be a combination of a tsunami, earthquake and asteroid hitting all at once, a “romance Armageddon”. (We fear that this may turn out to be only a small exaggeration.). A subset of this group are the RUN & HIDE group who will move overseas or underground to escape the clutches of this law, or at least will try.


4) THE REALISTS –This group is reading this law closely and attempting to try and comply with it as best they can cost-effectively, and thinking about some imaginative options, including but not only, use of release and consent forms on webpages, on the Internet, and via electronic forms, etc.

Frankly, it may well be that some people (sellers) will likely leave the business, go underground or go overseas. And some businesses will choose to violate the law until they are caught.
BOTTOM LINE: We will all experience and “live and learn” exactly what will happen as the law is actually rolled out.

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SPECIAL NOTE: OUR OFFICE HAS TRIED TO ANSWER AS MANY OF YOUR QUESTIONS ABOUT THIS LAW AS POSSIBLE, GRATIS AND WITHIN OUR TIME LIMITS AND RESOURCE CAPABILITIES. OUR IMMIGRATION BLOG ARTICLES ON THIS LAW ARE AMONG THE BEST AVAILABLE ANYWHERE. BUT DUE TO PRACTICAL CONSTRAINTS, IT IS OBVIOUS THAT WE CANNOT CONTINUE TO ANSWER EVERYONE'S QUESTIONS INDEFINITELY AND WITHOUT ANY LIMITS.

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Copyright©, 2006. All Rights Reserved. Gary Bala

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