Violence Against Women and Department of Justice Reauthorization Act of 2005

 

The below information was written by Gary Bala Immigration Lawyer

 http://usaimmigrationattorney.com/

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". It requires all U.S. gentlemen who petition for a fiancée or spousal visa to provide more personal background information to Immigration Service and the State Department than ever before. It creates more restrictions in the process such as the number of fiancée 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 fiancée 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 fiancée 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 Fiancée 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. LIMIT ON NUMBER OF PETITIONS: Some petitioners will need to wait before they can successfully file for a fiancée visa. For example, if you filed two (2) or more fiancée visa petitions in the past, and at least one of them was approved, you must wait two (2) years from the filing date of the last approved petition before you can be successfully approved for another fiancée visa petition. (Exception: Under some circumstances, a petitioner may be able to obtain a "waiver".)

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 fiancée 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.


A 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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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.



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 fiancées 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.


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.



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)


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.

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.


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

Answer: Yes. There are provisions in this law which do NOT apply ONLY to IMBs, but to ANY K Visa petititoner, even those who did NOT meet their fiancee or spouse through an IMB. For example, the "petitioner provisions" of this law say that documents and information about petitioner's past criminal conduct and domestic violence must be submitted under signed certification. New I-129F Petitions will likely be distributed by USCIS starting (or before) March 06, 2006. More intensive security checks and Consular Interview requirements and numerical limit on the number of K Visas one can petition for, these all apply to ALL petitioners and beneficiaries regardless of how they met as a couple.

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 fiancée 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 misrepresentation, 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.

I heard that there is a numerical limit to the number of K Visas someone can file for? What is that all about? I also heard about a two year waiting period and a special "waiver" that is possible for people who have filed multiple K Visas before? How does all that work?

Answer: There is a numerical limit to the number of K Visas a gentlemen U.S. Citizen can file for under this new law. Some commentators are calling it a "lifetime limit" of three (3) K Visas (fiancee or spousal). This though may not be a precisely correct way of stating it. But the cold fact is that gentlemen will be effectively limited in the number of visas they can pursue, as a practical matter.

The exact wording of the law is that if a gentleman petitioner filed two (2) or more K Visas in the past at any time, then the Consular Officer CANNOT approve and issue the third visa request UNLESS EITHER 1. two (2) years have elapsed since the date of the filing of the last Immigration Service approved petition, OR 2. the gentleman petitioner secures a special "waiver" from Homeland Security.

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. If the waiver is anything like existing 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. 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.

Combined with all of the above, the new law mandates the creation of a K Visa Tracking Database, which will track and monitor all K Visa 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.

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.)




I
f you would like to sign a petition against this law you can at http://www.petitiononline.com/imbra05/petition.html

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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