The International Marriage Broker Regulation Act (IMBRA, for short) places special restrictions on those individuals who have already sponsored an immigrant for a fiancée visa (K-1) but for some reason, that relationship is now over and the U.S. citizen wants to file another fiancé visa. IMBRA was created to protect the interests of foreign fiancées and ensure that U.S. citizen would-be spouses were not using these immigrant fiancées but never following through on marriage. IMBRA created a waiver option, though, because the government acknowledges that there are often legitimate reasons as to why a relationship just didn’t work out. Any time a U.S. citizen has filed two or more fiancée visa petitions at any time in the past or their last fiancée visa petition was approved within the last two years of filing a new fiancée visa petition, the U.S. citizen must apply for a waiver. This is within the agency’s discretion whether or not to grant the waiver.
The agency will look at the U.S. citizen’s history of filing multiple petitions and filing and then withdrawing of petitions or obtaining approvals of past petitions that have been filed every few years. The government will also look at factors such as the U.S. citizen’s criminal history that could affect any incoming fiancé and whether any unusual circumstances exist that excuse why a new K-1 is being filed.
IMBRA will also bar you from sponsoring a foreign fiancé if you have a history of violent offenses. When the crime you’re convicted of has an element that involves the use, attempted use, or threatened use of physical force against a person or property owned by someone else, you could be barred from sponsoring a fiancée for a U.S. immigration visa. These are tough cases to win since the government is concerned that this past history will repeat itself and the immigrant fiancé could be in harm’s way if s/he moves to the United States to be with you.
There are many exceptions to depending on a positive discretionary finding for a waiver by the agency. If the government believes you can prove what happened in the past was done in self-defense, you violated your own protection order that was issued for your own protection, or you pled guilty to a crime that did not result in serious bodily injury, a waiver grant is mandatory. Other exceptions apply as well.
Adam Walsh Act cases
U.S. citizens and lawful permanent residents who are sponsoring a loved one for green card or a fiancée visa are barred from doing so under the Adam Walsh act if the U.S. citizen or permanent resident has been convicted of an offense that involves (1) kidnapping (except by parent or legal guardian), false imprisonment (except by parent or legal guardian), Solicitation to engage in sexual conduct; Use in a sexual performance; (5) Solicitation to practice prostitution; (6) Video voyeurism; (7) Possession, production, or distribution of child pornography; (8) Criminal sexual conduct involving a minor, or the use of the Internet to facilitate or attempt such conduct; and (9) Any conduct that by its nature is a sex offense against a minor.
The only way around this bar is if USCIS believes that the petitioner to the visa petition does not pose a risk to the immigrant being sponsored. If the government does not waive this, there is no review of the decision. But there may be grounds for litigation to challenge the denial of the actual Immigrant Visa Petition under the Administrative Procedures Act in federal court and other exceptions.
Whether it is IMBRA or the Adam Walsh Act that is barring you from being with your loved one, call us to help you through this maze so you can truly understand your chances for a waiver, whether you need one to begin with, and what you’re up against. Our attorneys regularly work on criminal conviction issues as they relate to all areas of immigration practice.