United States Government Accountability Office

GAO Report to the Subcommittee on 

Immigration, Border Security, and 

Claims, Committee on the Judiciary, 

House of Representatives 

IMMIGRATION 

BENEFITS 

Circumstances under 

Which Petitioners’ Sex 

Offenses May Be 

Disclosed to 

Beneficiaries 

June 2006 

GAO-06-735 
What GAO Found

United States Government Accountability Office

Why GAO Did This Study

Highlights

Accountability Integrity Reliability

June 2006

IMMIGRATION BENEFITS 

Circumstances under Which Petitioners' 

Sex Offenses May Be Disclosed to 

Beneficiaries 

Highlights of GAO-06-735, a report to the 

Subcommittee on Immigration, Border 

Security, and Claims, Committee on the 

Judiciary, House of Representatives 

In fiscal year 2005, U.S. citizens and 

lawful permanent residents filed 

about 730,000 petitions with the 

U.S. Citizenship and Immigration 

Services (USCIS) to sponsor 

noncitizen family members, 

including spouses, fiancé(e)s, and 

children, to immigrate to the 

United States. Those doing the 

sponsoring are called petitioners; 

those benefiting from the 

sponsoring are called beneficiaries.

If USCIS approves the petition, 

overseas beneficiaries must also 

file a visa application with the 

Department of State to enter the

United States. In January 2002,

USCIS started to conduct 

background security checks on all 

petitioners in addition to the 

beneficiaries. These background

checks revealed that some of the 

petitioners had convictions for 

criminal sex offenses; further,

some of those criminal sex 

offenders were filing family-based 

petitions for children (those under

the age of 21). This report

addresses the number of convicted 

sex offenders who filed familybased petitions in fiscal year 2005

based upon a computer match of 

USCIS data with individuals in the 

Federal Bureau of Investigation’s 

National Sex Offender Registry and 

discusses USCIS’s and the 

Department of State’s framework

for disclosing a sponsor’s criminal 

sexual background to the 

beneficiary. DHS, the Department

of State, and the Department of 

Justice reviewed a draft of this 

report. Only technical comments 

were provided and have been 

incorporated into this report. 

At least 398 convicted sex offenders filed a total of 420 petitions in fiscal 

year 2005 for spouses, fiancé(e)s, children, and other relatives. Immigration 

law does not prohibit convicted sex offenders from petitioning to bring their 

spouses, fiancé(e)s, or children into the United States and generally USCIS 

cannot deny a petition based solely on the fact that the petitioner is a 

convicted sex offender. The sex offenders were convicted of at least 411 sexrelated crimes, including sexual assault and rape, according to data in the 

Federal Bureau of Investigation’s National Sex Offender Registry. At least 

45 convictions involved crimes against children. While most beneficiaries 

were spouses and fiancé(e)s, criminal sex offenders petitioned for at least 

60 children. 

According to USCIS and Department of State officials, an exception to the 

Privacy Act of 1974 gives them authority to disclose a petitioner’s criminal 

sex offender history if there are “compelling circumstances affecting the 

health and safety” of the beneficiary. For certain noncitizen beneficiaries, 

disclosure of the petitioner’s criminal background information is now 

mandatory based on new authority granted to USCIS and the Department of 

State. The International Marriage Broker Regulation Act of 2005 (IMBRA)

requires disclosure of a U.S. citizen’s criminal background information, 

including sex crimes, to certain prospective immigrants, essentially 

noncitizen fiancé(e)s, but some spouses and minor children as well. 

Mandatory disclosure is not required for beneficiaries not covered by 

IMBRA, though these beneficiaries may receive information about a 

petitioner’s criminal background on a discretionary basis under the Privacy 

Act exception. GAO estimates that IMBRA’s mandatory disclosure 

requirement will cover about 20 percent of family-based beneficiaries based 

on fiscal year 2005 data. On May 3, 2006, USCIS issued interim guidance to 

its adjudicators on when it may be appropriate to disclose information 

related to a petitioner’s criminal history under the “compelling 

circumstances” exception to the Privacy Act. USCIS plans to issue separate

guidance related to disclosure requirements under IMBRA. Department of 

State officials said that they are preparing to issue Privacy Act disclosure 

guidance and are finalizing separate IMBRA disclosure guidance. 

Petitioners’ Sex Offense Convictions

21 

45 

128 

217 

Source: GAO analysis of USCIS and FBI data. 

5% Other sex related crimes

11% Crimes against children 

31% Sex assault 

53% Sex offense Total = 411

www.gao.gov/cgi-bin/getrpt?GAO-06-735.

To view the full product, including the scope 

and methodology, click on the link above. 

For more information, contact Paul Jones at 

(202) 512-8777 or jonespl@gao.gov. 
Contents 

Letter 1

Results in Brief 3

Background 4

Hundreds of Convicted Sex Offenders Have Petitioned for Spouses, 

Fiancé(e)s, and other Relatives, including Children 7 

Agencies Have a Framework for Disclosing Petitioners' Criminal 

Sexual History to Noncitizen Beneficiaries 12 

Concluding Observations 17 

Agency Comments and Our Evaluation 17 

Appendix I Scope and Methodology 19 

Appendix II GAO Contact and Staff Aknowledgments 21 

Table 

Table 1: Conviction Descriptions of 411 Sex Offenses Committed 

by the 398 Sex Offenders 10 

Figures 

Figure 1: Primary Beneficiaries Petitioned For by Convicted Sex 

Offenders in Fiscal Year 2005 8 

Figure 2: Status of Petitions Filed by Convicted Sex Offenders 9 

Page i GAO-06-735 Immigration Benefits
Abbreviations 

DHS Department of Homeland Security 

FBI Federal Bureau of Investigation 

FDU Fraud Detection Unit 

IMBRA International Marriage Broker Regulation Act 

IBIS Interagency Border Inspection System

INA Immigration and Nationality Act 

INS Immigration and Naturalization Service 

NCIC National Crime Information Center 

NSOR National Sex Offender Registry 

USCIS U.S. Citizenship and Immigration Services 

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Page ii GAO-06-735 Immigration Benefits
United States Government Accountability Office

Washington, DC 20548 

June 14, 2006 

The Honorable John N. Hostettler 

Chairman 

The Honorable Sheila Jackson Lee 

Ranking Minority Member 

Subcommittee on Immigration, Border Security, and Claims 

Committee on the Judiciary 

House of Representatives 

A U.S. citizen or lawful permanent resident, called the sponsor or 

petitioner, can file a petition with the U.S. Citizenship and Immigration 

Services (USCIS), within the Department of Homeland Security (DHS), to 

have noncitizen relatives, such as spouses or children, immigrate to the 

United States. In addition, U.S. citizens, but not lawful permanent 

residents, can petition for noncitizen fiancé(e)s and their children. If 

USCIS approves the petition, the noncitizen relative or fiancé(e), called 

the beneficiary, can then apply to enter or remain in the United States. If

the beneficiary is overseas, the Department of State is responsible for 

determining whether to issue a visa. If the beneficiary is already in the 

United States in a nonimmigrant status, such as a visitor or student, he or 

she would apply to USCIS to change his/her status to that of lawful 

permanent resident. In fiscal year 2005, approximately 730,000 familybased petitions were filed with USCIS.1

 Among those filing family-based 

petitions were convicted sex offenders. The Immigration and Nationality 

Act does not prohibit convicted sex offenders from petitioning to bring 

their fiancé(e)s, spouses, or children into the United States, and their 

petitions may be approved despite their criminal sexual history. USCIS 

does not have general authority to deny a petition based solely on the fact

that a petitioner may be a convicted sex offender. In cases where there is

no other basis for denying a petition, USCIS or the State Department may 

be faced with the issue of whether, and under what circumstances, they 

can disclose the petitioner’s criminal sexual history to a beneficiary 

consistent with any applicable privacy restrictions. 

 1

For the purposes of this report, we are considering petitions for family members and 

fiancé(e)s as family-based petitions. 

Page 1 GAO-06-735 Immigration Benefits
Prior to September 11, 2001, the Immigration and Naturalization Service 

(INS), USCIS’s predecessor, conducted background security checks on all 

beneficiaries applying to immigrate to the United States. In January 2002, 

INS instituted mandatory background checks on all beneficiaries and 

petitioners for all immigration benefits, including U.S. citizen petitioners. 

USCIS continues to conduct these checks. While these background checks 

were primarily instituted for national security and public safety reasons, 

such as identifying terrorists or terrorist threats, the checks revealed that 

some petitioners had criminal convictions, including convictions for 

criminal sex offenses. Some of these petitioners had petitioned for minor 

children, which the Immigration and Nationality Act generally defines as 

an unmarried child under 21 years old.2

You asked us to determine the number of convicted sex offenders who 

filed family-based petitions, and in particular petitions for children. You 

also expressed interest in understanding the circumstances surrounding 

possible disclosure of a petitioner’s criminal sex offender history to the 

noncitizen beneficiary. This report addresses the following: 

• the number of convicted sex offenders who filed family-based petitions 

in fiscal year 2005, and 

• USCIS’s and Department of State’s framework for disclosing a 

sponsor’s criminal sexual background to the noncitizen beneficiary. 

To determine how many convicted sex offenders filed family-based 

petitions in fiscal year 2005, we conducted a computer match using data 

from USCIS’s family-based petitions filed in fiscal year 2005 with data on

individuals listed in the Federal Bureau of Investigation’s (FBI) National 

Crime Information Center’s (NCIC) National Sex Offender Registry 

(NSOR). The NSOR is a national database that compiles data furnished by 

the states from their sex offender registries. As of December 2005, the 

NSOR contained data on approximately 413,000 sex offenders. The FBI is 

required by federal law to maintain this registry to track the whereabouts 

and movement of convicted sex offenders who have been (1) convicted of 

a criminal offense against a victim who is a minor, (2) convicted of a 

sexually violent offense, or (3) who are “sexually violent predators.”3

 We 

 2

8 U.S.C. § 1101(b)(1). 

3

The requirement to establish the registry appears at 42 U.S.C. § 14072(b). Detailed 

statutory definitions for the registry’s three offense categories appear at 42 U.S.C. § 

14071(a)(3). 

Page 2 GAO-06-735 Immigration Benefits
matched several data elements that were the same in both data sets, such 

as name, date of birth, or Social Security number, to provide a high level of

assurance that the petitioner in the USCIS database was the same person 

as the sex offender in the NSOR. We determined that the data we used 

from the USCIS database and the NSOR were sufficiently reliable for the 

purposes of this report. Appendix I contains a more detailed description of 

the scope and methodology of our computer match, including the datamatching criteria we used to decide whether the petitioner in the USCIS 

database was a match with the sex offender in the NSOR. 

To determine USCIS’s and the Department of State’s framework for 

disclosing a sponsor’s criminal sexual background to the noncitizen 

beneficiary, we reviewed relevant laws, including the International 

Marriage Broker Regulation Act (IMBRA) of 2005, the Immigration and 

Nationality Act, and the Privacy Act of 1974, as well as relevant regulations 

and policy guidelines. We also interviewed USCIS and Department of State 

officials and obtained each agency’s written position regarding the scope

of its authority to disclose a petitioner’s criminal sex offender history to a 

beneficiary. We conducted our work from August 2005 through June 2006 

in accordance with generally accepted government auditing standards. 

At least 398 convicted sex offenders filed petitions for spouses, fiancé(e)s,

children (those under the age of 21), and other relatives in fiscal year 2005. 

They filed a total of 420 of the approximately 730,000 family-based 

petitions filed in fiscal year 2005. While most of the beneficiaries were 

spouses and fiancé(e)s, we determined that at least 60 were unmarried 

children under 21. Fourteen of the 398 sex offender petitioners were 

classified in the FBI’s NSOR as sexually violent predators, defined in 

federal law as offenders who have been convicted of a sexually violent

offense and are likely to engage in predatory sexually violent offenses 

again. At least 3 of the 14 sexual predators had filed petitions for children.

Results in Brief 

According to USCIS and Department of State officials, an exception to the 

Privacy Act of 1974 gives them authority to disclose a petitioner’s criminal 

sexual history if there are “compelling circumstances affecting the health 

and safety” of the beneficiary. For certain noncitizen beneficiaries, 

disclosure of the petitioner’s criminal background information is 

mandatory based on new authority granted to USCIS and the Department 

of State. IMBRA requires disclosure of a U.S. citizen’s criminal background 

information, including sex crimes, to certain prospective immigrants, 

essentially noncitizen fiancé(e)s, but some spouses and children as well. 

Mandatory disclosure is not required for beneficiaries not covered by 

Page 3 GAO-06-735 Immigration Benefits
IMBRA, though they may receive information about a petitioner’s criminal 

background on a discretionary basis under the Privacy Act exception. We

estimate that IMBRA’s mandatory disclosure requirement will cover about

20 percent of family-based beneficiaries based on fiscal year 2005 data. On

May 3, 2006, USCIS issued interim guidance to its adjudicators4

 on when it 

may be appropriate to disclose information related to a petitioner’s 

criminal background information under the “compelling circumstances” 

exception to the Privacy Act. This guidance also stated that USCIS will 

issue separate guidance related to disclosure requirements under IMBRA. 

The Department of State said that it is preparing to issue guidance related 

to its discretionary disclosure authority under the Privacy Act and plans to

issue separate disclosure guidance with respect to disclosure requirements 

under IMBRA. 

We provided a draft of this report to DHS, the Department of State, and the 

Attorney General for review. Only technical comments were provided, 

which we incorporated into our report as appropriate. 

The Immigration and Nationality Act (INA), as amended, is the primary 

body of law governing immigration and visa operations. Among other 

things, the INA defines the powers given to the Secretaries of State and

Homeland Security5

 and the consular and immigration officers who serve 

under them, delineates categories of and qualifications for immigrant and 

nonimmigrant visas, and provides a broad framework of operations 

through which foreign citizens are allowed to enter and immigrate to the

United States. USCIS is generally responsible for administering the 

citizenship and immigration services of the United States. Most foreign 

nationals living abroad who wish to immigrate to the United States must 

obtain a visa through the Department of State’s Bureau of Consular 

Affairs. 

Background 

U.S. citizens and lawful permanent residents, that is, petitioners, can 

request or petition USCIS to allow certain relatives to immigrate to the 

 4

Adjudicators determine eligibility for various types of immigration benefits, including

permission for relatives to immigrate and permission to become U.S. citizens. 

5

The INA is deemed to refer to the Secretary of Homeland Security in describing those 

immigration functions, such as those performed by USCIS, which were transferred to the 

Secretary from the Attorney General under the Homeland Security Act of 2002. 6 U.S.C. §

557. 

Page 4 GAO-06-735 Immigration Benefits
United States. As the first step in a two step process, petitioners must file a 

family-based petition with USCIS. U.S. citizens and lawful permanent 

residents may file a Form I-130 for an alien relative, such as a wife or child, 

to immigrate to the United States. U.S. citizens (but not lawful permanent 

residents) may also petition to bring a noncitizen fiancé(e) to the United 

States by filing a Form I-129F with USCIS.6

 The I-129F or I-130 petitions 

may also list “derivative beneficiaries,” such as the beneficiary’s unmarried 

child under 21 years old, who are eligible to immigrate with the primary 

beneficiary. The purpose of these petitions is to establish the petitioner’s 

relationship to the family member or fiancé(e) who wishes to immigrate to 

the United States. USCIS adjudicators are to review petitions and make 

determinations, in accordance with immigration law, on whether to 

approve or deny petitions. If a petition is approved, the second step in the 

process is to determine whether the noncitizen is admissible under 

immigration law to enter or remain in the United States. If the noncitizen is 

overseas, USCIS will send the approved petition to the State Department 

and a State Department consular officer will determine whether to issue a 

visa to the noncitizen. If the noncitizen is already in the United States in a 

nonimmigrant status, such as a visitor or student, when the petition is 

approved, a USCIS adjudicator will determine whether to allow the 

noncitizen to change, or “adjust,” his/her status to that of a lawful 

permanent resident. 

As part of its review, USCIS conducts background security checks on 

petitioners as well as noncitizen beneficiaries. These background checks 

were instituted for national security purposes such as identifying terrorists 

or terrorist threats, and for public safety reasons, such as identifying 

human rights violators or aggravated felons. According to USCIS officials, 

background security checks were conducted on all beneficiaries prior to 

September 11. As of January 2002, however, background security checks 

were required to be conducted on all petitioners, including U.S. citizens, as 

well as beneficiaries. 

USCIS adjudicators conduct background security checks using the 

Interagency Border Inspection System (IBIS), which is a multi-agency

computer system of lookouts for terrorists, drug traffickers, and other 

such criminal types. IBIS contains numerous database files and interfaces 

 6

Because lawful permanent residents may not bring fiancé(e)s into the United States, they

must file an I-130 petition for immigration of a spouse after the marriage. 

Page 5 GAO-06-735 Immigration Benefits
with sources such as the FBI’s National Crime Information Center.7

 The 

NCIC contains various data, including data on violent gangs and terrorists, 

immigration violators, and the National Sex Offender Registry. During a 

background check, if an IBIS query returns a “hit” where the name and 

date of birth information entered returns a positive response from one or 

more of the databases, and it appears the petitioner may have a criminal 

background, USCIS adjudicators are to forward this information to a 

Fraud Detection and National Security (FDNS) officer within USCIS. 

FDNS officers are to conduct further system searches for verification of 

the criminal hits. After researching and summarizing the criminal data on 

the petitioner, FDNS officers are to notate their findings in a resolution 

memorandum and send the memo back to the adjudicator responsible for 

the file. Assuming the petitioner cannot be referred to law enforcement or, 

in the case of a lawful permanent resident, deported, the adjudicator then 

continues the review and accepts or denies the petition based on whether 

there appears to be a valid relationship between the petitioner and the 

beneficiary.

The FBI NCIC NSOR is a compilation of state registration information 

about sex offenders. The NSOR is statutorily mandated by the Pam 

Lychner Sexual Offender Tracking and Identification Act of 1996.8

 The act 

directs the Attorney General to establish a national database at the FBI to 

track the whereabouts and movement of (1) each person who has been 

convicted of a “criminal offense against a victim who is a minor,” (2) each

person who has been convicted of a “sexually violent offense,” and 

(3) each person who is determined to be a “sexually violent predator.” As 

implemented, the NSOR is a nationwide system that links states’ sex 

offender registration and notification programs. Each of the 50 states and 

the District of Columbia has created a sex offender registry based on the 

above three conviction categories and has established an interface with 

the FBI’s national system in order to transmit state registry information to 

the national registry. State registries contain information on sex offenders

 7

The NCIC is a national database of documented criminal justice information and consists 

of 18 data files. The seven property files contain records for articles, boats, guns, license 

plates, securities, vehicles, and vehicle and boat parts. The 11 person files are the

Convicted Sexual Offender Registry, Foreign Fugitive, Identity Theft, Immigration Violator, 

Missing Person, Protection Order, Supervised Release, Unidentified Person, U.S. Secret 

Service Protective, Violent Gang and Terrorist Organization, and Wanted Person Files. The 

Interstate Identification Index, which contains automated criminal history record 

information, is also accessible through the same network as the NCIC. 

8

Pub. L. No. 104-236, 110 Stat. 3093 (1996). 

Page 6 GAO-06-735 Immigration Benefits
who are required to register and that reside, work, or attend school within 

the state. 

At least 398 convicted sex offenders filed petitions for spouses, fiancé(e)s,

children, and other relatives in fiscal year 2005 based upon matching 

several data elements from USCIS’s database with data from FBI’s 

National Sex Offender Registry. There may be additional convicted sex 

offenders who filed family-based petitions. For example, we could not 

determine with a high degree of confidence whether 53 petitioners that 

had the same name and date of birth as a person in the NSOR were the 

same individuals because there were no additional data items, such as 

Social Security number or address, that we could match. Therefore, we did 

not include these additional 53 petitioners in our count because it is 

possible that two people could have the same name and date of birth. 

Hundreds of 

Convicted Sex 

Offenders Have 

Petitioned for 

Spouses, Fiancé(e)s, 

and other Relatives, 

including Children 

The 398 sex offenders filed a total of 420 petitions. Figure 1 shows the type 

of beneficiaries for which petitions were filed by convicted sex offenders. 

USCIS data indicate that 371 (88 percent) of the beneficiaries were 

spouses and fiancé(e)s, 33 (8 percent) were unmarried children under 

21 years old, and 16 (4 percent) were classified as other relatives. We do 

not know, however, what percentage of unmarried children under 21 years 

old were minors under the federal criminal code, which defines a minor as 

under 18 years old for purposes of certain child sexual offenses.9

 In 

addition, certain relatives of the primary beneficiary, such as unmarried 

children, under 21 years old, of the noncitizen spouse or fiancé(e), called

derivative beneficiaries, may also immigrate with the beneficiary. 

However, USCIS’s data system only includes information on the primary 

beneficiary, not on any derivative beneficiaries. Therefore, our data 

underestimate the actual number of beneficiaries. For example, in addition 

to the 33 unmarried children under 21 years of age that were the primary 

beneficiaries of sex offenders, the State Department provided us data from

its visa processing system indicating that there were at least an additional 

27 children who were derivative beneficiaries associated with fiancé(e) 

petitions. Both USCIS and State Department data together total at least 

60 unmarried children under 21 years of age. 

 9

18 U.S.C. § 2256(1). 

Page 7 GAO-06-735 Immigration Benefits
Figure 1: Primary Beneficiaries Petitioned For by Convicted Sex Offenders in Fiscal 

Year 2005 

16 

33 

91 

280 

Source: GAO analysis of USCIS and FBI data. 

4% Other Relatives

8% Unmarried child 

22% Fiancé(e) 

66% Spouse 

Total = 420

Note: Total does not equal 100 percent because of rounding.

As of December 2005, the majority, or about 62 percent, of the petitions 

filed in fiscal year 2005 for noncitizen relatives—spouses, children, and 

other relatives—by petitioners with criminal sex offender backgrounds 

were still pending a decision; about 37 percent had been approved, and 

1 percent had been denied. Most, or approximately 75 percent of, petitions

filed by criminal sex offenders for fiancé(e)s had been approved (see 

fig. 2). 

Page 8 GAO-06-735 Immigration Benefits
Figure 2: Status of Petitions Filed by Convicted Sex Offenders 

Source: GAO analysis of USCIS and FBI data. 

1% (4) 

37% 

62% 

Denied 

Approved 

Pending 

10% 

15% 

75% 

(121) 

(9) 

(14) 

(68) (204) 

Status of petitions for Noncitizen

relatives as of 12/05

Status of petitions for Noncitizen

fiancé(e)s as of 12/05

Total = 420

As shown in table 1, some of the sex offenders have been convicted of 

multiple sex crimes. The 398 sex offenders were convicted of at least 

411 sex offenses, including sexual assault, rape, and child molestation, 

according to conviction data contained in the NSOR. At least 45 of the

convictions were for sex offenses against children.10 It is possible that 

more than 45 convictions involved sex offenses against children, but this 

number could not be determined based on the conviction description in 

the registry. For example, the conviction description for 217 of the 

411 convictions, or 53 percent, is “sex offense.” In addition, 14 petitioners

were classified as sexual predators. Consistent with statute,11 the NSOR 

classifies “sexual predator” as an offender who has been convicted of a

sexually violent offense and suffers from a mental abnormality or 

 10The 45 convictions include sex offender---child fondling (35), statutory rape (7), sex 

assault---sodomy boy (1), incest with minor (1), and exploitation minor-photograph (1).

11 42 U.S.C. § 14071(a)(3)(C). 

Page 9 GAO-06-735 Immigration Benefits
personality disorder that makes the person likely to engage in predatory 

sexually violent offenses again. These 14 sexual predators filed a total of 

17 petitions. As of December 2005, 9 of the 17 petitions filed were 

approved and 8 were pending. Three of the 14 petitioners who were 

classified as sexual predators filed for unmarried children under 21 years 

old. 

Table 1: Conviction Descriptions of 411 Sex Offenses Committed by the 398 Sex 

Offenders 

Conviction description Total

Sex offense 217

Sex assault 119

Sex offense–child fondling 35

Rape–strong arm 9

Sexual Assault–carnal abuse 9

Statutory rape–no force 7

Crimes against persons 4

Indecent exposure 3

Kidnapping 2

Obscene material possession 2

Sovereignty (restrict movement) 1

Sex assault–sodomy boy 1

Incest with minor 1

Exploitation minor–photograph 1

Total 411

Source: GAO analysis of USCIS and FBI data.

Note: Thirteen sex offenders had more than one conviction in the NSOR. 

Convicted sex offenders are not prohibited by the INA from petitioning to

bring their spouses, fiancé(e)s, or children into the United States. 

According to USCIS and the Department of State, neither agency has 

general authority to deny a petition or visa based solely on the fact that a 

petitioner may be a convicted sex offender. In a December 2005 letter to 

GAO, USCIS’s Acting Chief Counsel stated that USCIS may not reject or 

deny family-based petitions on the grounds that the petitioner has a 

criminal background, lacks good moral character, or other possible 

Page 10 GAO-06-735 Immigration Benefits
negative factors.12 The review and ultimately the approval of such petitions 

centers on whether the facts stated in the petition are true and whether 

there exists the requisite relationship between the petitioner and the 

beneficiary. It is possible that a petitioner’s criminal history may be 

relevant to the question of whether the petitioner has established the 

requisite relationship. For example, a petitioner’s conviction for fraud, 

bigamy, or alien smuggling would be relevant in determining whether a 

bona fide relationship exists between the petitioner and a noncitizen 

spouse beneficiary. 

According to officials in the Department of State’s Bureau of Consular 

Affairs, the Department of State cannot deny a visa to a noncitizen based 

solely on the fact that the petitioner is a convicted sex offender or has 

other criminal convictions. The review and ultimately the approval of a 

visa centers on whether the noncitizen is admissible under immigration 

law to enter the United States and on whether there exists the prerequisite 

relationship between the petitioner and the beneficiary. Therefore, 

consular officers have no legal basis to deny a visa to a noncitizen based 

solely on the fact that the petitioner has a criminal sexual background. In 

cases where there is no basis for denying a petition or visa, both the State 

Department and USCIS may be faced with the issue of whether, and under 

what circumstances, they can disclose the petitioner’s criminal sexual 

history to a beneficiary consistent with any applicable privacy restrictions. 

 12While USCIS may not deny a petition based solely on the petitioner’s criminal history,

USCIS officials stated that they may commence removal proceedings if the petitioner is a

lawful permanent resident who has been convicted of a sex offense that renders him or her 

removable from the United States. Section 237(a)(2) of the Immigration and Nationality Act 

contains a list of criminal offenses (such as moral turpitude) that could cause a person to

lose his or her lawful permanent resident status. 8 U.S.C. § 1227(a)(2). However, 

deportation is not an option for U.S. citizens with criminal backgrounds. 

Page 11 GAO-06-735 Immigration Benefits
According to both USCIS and Department of State officials, the compelling 

circumstances exception to the Privacy Act of 1974 provides authority to 

disclose a petitioner’s criminal sexual history to a noncitizen beneficiary 

on a case-by-case basis. For certain noncitizen beneficiaries, disclosure of 

the petitioner’s criminal background information is mandatory based on 

new authority granted to USCIS and the Department of State. The recently

enacted International Marriage Broker Regulation Act (IMBRA) of 200513

requires disclosure of a U.S. citizen’s criminal background information, 

including sex crimes, to certain prospective immigrants, essentially 

noncitizen fiancé(e)s, but some spouses and children as well. USCIS must 

furnish this criminal background information to the Department of State 

for purposes of making IMBRA disclosures. On May 3, 2006, USCIS 

officials issued interim guidance to its adjudicators on making disclosures 

under the compelling circumstances exception to the Privacy Act and 

stated that USCIS would soon issue additional guidance with respect to 

IMBRA disclosures. The Department of State informed us that it is 

preparing to issue disclosure guidance to consular officers that will cover 

discretionary Privacy Act disclosures and that it is finalizing separate 

disclosure guidance with respect to the mandatory disclosures required 

under IMBRA, but this guidance cannot be issued until USCIS finalizes its 

IMBRA related procedures. 

Agencies Have a 

Framework for 

Disclosing Petitioners’ 

Criminal Sexual 

History to Noncitizen 

Beneficiaries 

USCIS and the Department 

of State May Disclose a 

Petitioner’s Criminal 

Sexual History to a 

Noncitizen Beneficiary 

Based on Their 

Interpretation of a Privacy 

Act Exception 

The Privacy Act of 1974 states that, “no agency shall disclose any record 

which is contained in a system of records by any means of communication 

to any person, or to another agency, except pursuant to a written request 

by, or with the prior written consent of, the individual to whom the record 

pertains.”14 While information from the covered systems is generally not to 

be disclosed, there are 12 exceptions. One of these exceptions authorizes 

an agency to make a disclosure “to a person pursuant to a showing of 

compelling circumstances affecting the health or safety of an individual if 

upon such disclosure notification is transmitted to the last known address 

of such individual.” Both USCIS and the Department of State have 

interpreted the compelling circumstances exception in the Privacy Act as

 13IMBRA was enacted on January 5, 2006, as part of the Violence Against Women and 

Department of Justice Reauthorization Act of 2005, Pub. L. No. 109-162, 119 Stat. 2960

(2006). The statute’s IMBRA provisions are set forth in sections 831 through 834, and 

IMBRA citations in this report will identify the appropriate section. 

145 U.S.C. § 552a(b). 

Page 12 GAO-06-735 Immigration Benefits
authority to permit the disclosure of a petitioner’s criminal sexual history 

information. 

In a December 2005 letter to GAO, USCIS’s Acting Chief Counsel stated 

that if USCIS learns that a petitioner has a substantiated history of sexual 

assault or child molestation, then USCIS has the discretion in compelling 

circumstances to disclose that information to the beneficiary. On May 3,

2006, USCIS issued Privacy Act interim guidance advising adjudicators of 

when it may be appropriate to disclose a petitioner’s criminal history 

involving violence or sex offenses to potential visa beneficiaries under the 

compelling circumstances exception. Generally, disclosure is limited to 

those portions of the petitioner’s criminal history involving violence or sex 

offenses that are directly relevant to the “health and safety” of the 

potential beneficiary. As an example, the guidance provides that normally, 

“a conviction as a sexual predator should be considered a compelling 

circumstance affecting the health and safety of a child who would reside 

with the sexual predator.” The guidance further states that any concerns 

about safety that adjudicators have that are outside the scope of the 

guidance should be brought to the attention of their supervisor. 

According to Department of State officials, protecting the health or safety 

of a minor child would constitute compelling circumstances to disclose a 

petitioner’s criminal sex offender background, though the exception might 

also apply in cases that did not involve a minor child. In a letter to GAO, 

the Chief, Advisory Opinions Branch, of the Department of State’s Visa 

Office wrote, “the clear possibility of abuse that an immigrant child would 

face while living in the same household as a convicted sex offender 

provides a strong basis for applying the health and safety exception in 

these cases.” The Department of State asserts that its position is 

“consistent with overall U.S. policy balancing the need to inform the public 

of the potential threat to a community posed by a child sex offender with 

the privacy interests of the offender.” According to the Department, 

consular officials are to consult with the department’s visa policy and legal 

staff prior to disclosure of a criminal record or other negative factors. 

New Statute Requires 

Disclosure of Petitioner’s 

Criminal Background 

Information to Some 

Noncitizen Beneficiaries 

For certain noncitizen beneficiaries, disclosure of the petitioner’s criminal 

background information is now mandatory based on new authority 

granted to USCIS and the Department of State. The recently enacted 

International Marriage Broker Regulation Act of 2005 requires disclosure 

of a U.S. citizen’s criminal background information, including sex crimes, 

to certain prospective immigrants, essentially noncitizen fiancé(e)s, but 

Page 13 GAO-06-735 Immigration Benefits
also some spouses and children (i.e., unmarried children under 21 years 

old who are derivatives of the primary beneficiary). 

IMBRA mandates disclosure of a U.S. citizen’s criminal history, including

sex crimes, to certain prospective immigrants known as K nonimmigrant 

visa applicants,15 who are essentially noncitizen fiancé(e)s, but also some 

spouses and children. Obtaining a K visa allows the fiancé(e), spouse, or 

child to enter the United States as a nonimmigrant and then apply for 

immigrant (i.e., lawful permanent resident) status while in this country. 

Under section 832 of IMBRA, USCIS must revise its I-129F petition to 

require petitioners to disclose criminal background information for 

numerous specified crimes, including domestic violence, sexual assault,

child abuse and neglect, and incest.16 Any criminal background information 

USCIS possesses with respect to the petitioner must accompany any 

approved petition that is forwarded to the Department of State.17 IMBRA 

goes on to provide: “The Secretary of State, in turn, shall share any such

criminal background information that is in government records or 

databases with the K nonimmigrant visa applicant who is the beneficiary 

of the petition. The visa applicant shall be informed that such criminal 

background information is based on available records and may not be 

complete.”18 To effectuate IMBRA’s mandatory disclosure requirement, the 

Department of State must mail the visa applicant a copy of the petition, 

 15K nonimmigrant visa applicants are so called because they are defined by subparagraph 

(K) of section 101(a)(15) of the Immigration and Nationality Act (INA). In particular, a K 

nonimmigrant is one of the following: (1) a fiancé(e) of a U.S. citizen seeking to marry 

within 90 days of entering the United States; (2) the spouse of a U.S. citizen seeking to 

enter the United States as a nonimmigrant while awaiting the approval of an immigrant 

(i.e., lawful permanent resident) visa; or (3) the minor child (i.e., unmarried child under 

21 years old) of the aforementioned fiancé(e) or spouse, who will be accompanying them 

to the United States. 8 U.S.C. § 1101(a)(15)(K), (b)(1). 

16USCIS’s revised I-129F petition is currently in draft form. As required by statute, the 

specified crimes that petitioners must report on their I-129F forms are domestic violence, 

sexual assault, child abuse and neglect, dating violence, elder abuse, stalking, homicide, 

murder, manslaughter, rape, abusive sexual contact, sexual exploitation, incest, torture,

trafficking, peonage, holding hostage, involuntary servitude, slave trade, kidnapping, 

abduction, unlawful criminal restraint, false imprisonment, or at least three convictions for 

crimes relating to a controlled substance or alcohol not arising from a single act. 

17IMBRA does not permit USCIS to conduct any new or additional criminal background

check that is not otherwise conducted in the course of adjudicating petitions. IMBRA, 

section 833(a)(5)(A)(iii). On the basis of this restriction, USCIS officials said that petition 

background checks will be limited to IBIS.

18IMBRA, section 833(a)(5)(A)(iii). 

Page 14 GAO-06-735 Immigration Benefits
including any criminal background information, as well as a governmentdeveloped domestic violence information pamphlet.19 Supplementing the 

disclosure by mail, IMBRA also requires Department of State consular 

officers to “provide for the disclosure of such criminal background 

information to the visa applicant at the consular interview in the primary 

language of the visa applicant.”20

IMBRA’s mandatory disclosure requirement only extends to fiancé(e)s, 

spouses, and their minor children (i.e., unmarried children under 21 years 

old), who are sponsored by U.S. citizens and enter the United States on a K 

nonimmigrant visa issued by the Department of State. IMBRA’s mandatory 

disclosure requirement does not cover (1) the spouses and minor children 

of lawful permanent residents, who do not have the option of entering the 

United States using a K visa; (2) the spouses and minor children of U.S. 

citizens who enter the United States on an immigrant visa; or (3) any 

noncitizen already in the United States applying directly to USCIS for 

immigrant status.21 According to the data we reviewed, most noncitizens 

entering under family-based petitions will not be covered by IMBRA’s 

mandatory disclosure requirement. In fiscal year 2005, about 80 percent of

all family-based petitions filed were for other than K visas. 

USCIS and Department of 

State Efforts to Issue 

Disclosure Guidance 

USCIS issued interim guidance related to Privacy Act disclosures on May 

3, 2006. The guidance advises adjudicators of when “compelling 

circumstances” may exist to disclose a petitioner’s criminal history 

involving violence or sex offenses: for example, protecting the health and 

safety of a child beneficiary who would reside with a sexual predator 

would normally constitute a compelling circumstance to make a 

 19 IMBRA, section 833(a)(5)(A). IMBRA charges the Secretary of Homeland Security with 

developing the domestic violence information pamphlet, in consultation with the Attorney

General, the Secretary of State, and nongovernmental organizations with expertise on the

legal rights of immigrant victims of battery, extreme cruelty, sexual assault, and other 

crimes. The pamphlet must describe the legal rights and resources for immigrant victims of 

domestic violence and must be translated by the State Department into the languages 

having the greatest concentration of K nonimmigrant visa applicants. IMBRA, section 

833(a)(1), (4). IMBRA required the pamphlet to be available for distribution in the required

translations by May 5, 2006 (120 days after IMBRA’s January 5 enactment). IMBRA, section 

833(a)(6). However, at the time of this report, the pamphlet was still in draft form. 

20IMBRA, section 833(a)(5)(A)(iii). 

21The legislative history does not explain why Congress limited IMBRA’s mandatory 

disclosure requirement to K nonimmigrants. See H.R. Rep. No. 109-233, at 117, 121 (2005). 

Page 15 GAO-06-735 Immigration Benefits
disclosure. The guidance states that disclosure should be limited only to 

those portions of the petitioner’s criminal history that are directly relevant 

to the health and safety of the potential beneficiary. The guidance also 

contains Privacy Act procedures that adjudicators must follow when they 

make a disclosure, such as providing written notice of the disclosure to 

the petitioner and annotating the USCIS file to maintain a record of the 

disclosure and the justification for it. When the beneficiary is within 

USCIS’s jurisdiction, the guidance informs adjudicators to make 

disclosures during in-person interviews with the beneficiary. When the 

beneficiary is abroad, the guidance requires the adjudicator to provide to 

the State Department any adverse information that might affect the health

or safety of a beneficiary to enable the State Department to make a 

decision regarding disclosure. 

USCIS’s interim guidance related to Privacy Act disclosure states that 

USCIS will issue separate guidance addressing the special procedures 

adjudicators must follow with respect to I-129F petitions. As previously 

discussed, to meet IMBRA requirements, USCIS must revise its I-129F 

petition to require petitioners to disclose criminal background information 

for numerous specified crimes, including sex offenses. Any criminal 

background information USCIS possesses with respect to the petitioner 

must accompany any approved petition that is forwarded to the State 

Department to enable the State Department to effectuate IMBRA’s 

mandatory disclosure requirement. IMBRA mandated that USCIS revise its 

I-129F petition by March 6, 2006 (60 days after IMBRA’s January 5 

enactment).22 USCIS has not yet revised the petition. USCIS officials told 

us that they have been reviewing and consolidating suggested revisions to 

the I-129F, including IMBRA-related changes, and expect publication of 

the new Form I-129F in the Federal Register in mid-June 2006. 

Department of State officials told us that they had drafted guidance for 

consular officers that addresses the disclosure of a petitioner’s criminal 

sexual offender background under the compelling circumstances 

exception to the Privacy Act. According to the Department of State, the

draft guidance was essentially ready for issuance when IMBRA, which 

mandates disclosure of a petitioner’s criminal history to certain

beneficiaries, was enacted. As a result, it decided to revise its draft 

guidance to take the new statutory requirements into account. The 

officials said that they are preparing to issue disclosure guidance to 

 22IMBRA, section 832(a)(3). 

Page 16 GAO-06-735 Immigration Benefits
consular officers that will cover discretionary Privacy Act disclosures not 

covered under IMBRA and are finalizing separate guidance with regard to 

the mandatory disclosures required under IMBRA. However, according to

State Department officials, the IMBRA-related guidance cannot be issued 

until USCIS finalizes its IMBRA procedures, including revising the I-129F 

petition. 

Convicted sex offenders can sponsor noncitizen relatives, such as spouses, 

fiancé(e)s, and children, for entry into the United States. Not all 

beneficiaries may know that their petitioner has a criminal sex offender 

history that may put the beneficiary at risk. Recently enacted legislation 

has mitigated this risk for certain beneficiaries by requiring the State 

Department, in cooperation with USCIS, to disclose the petitioner’s 

criminal background information, including sex crimes. Both agencies said

that they plan to issue guidance on the new mandatory disclosure 

requirement. For beneficiaries who are not covered by the mandatory 

disclosure requirement, both USCIS and the State Department interpret a 

Privacy Act exception as giving them discretion to disclose a petitioner’s 

criminal sexual history based on “compelling circumstances affecting the 

health or safety” of the beneficiary. Until recently, neither agency had

issued guidance on this authority, but USCIS has now issued interim 

guidance to its adjudicators addressing compelling circumstance 

disclosures, and the State Department is preparing to issue its guidance to 

consular officers regarding discretionary Privacy Act disclosures not 

covered by IMBRA. On the basis of the agencies’ Privacy Act guidance, 

beneficiaries who are not statutorily protected by the mandatory 

disclosure requirement may nevertheless be informed of their petitioners’ 

criminal sexual history and the possible risk to their safety. 

We requested comments on a draft of this report from the Secretaries of 

Homeland Security and State and the Attorney General. None of these 

officials provided formal comments. However, representatives from each 

of these departments provided technical comments which we 

incorporated into this report, as appropriate. 

Concluding 

Observations 

Agency Comments 

We are sending copies of this report to the Secretaries of Homeland 

Security and State, the Attorney General, and interested congressional 

committees. We will also make copies available to others upon request. In

addition, the report will be available at no charge on GAO’s Web site at 

http://www.gao.gov.

Page 17 GAO-06-735 Immigration Benefits
If you or your staff have any questions concerning this report, please 

contact me at (202) 512-8777 or Jonespl@gao.gov. Contact points for our 

Offices of Congressional Relations and Public Affairs may be found on the 

last page of this report. Key contributors to this report are listed in 

appendix II.

Paul L. Jones 

Director, Homeland Security 

 and Justice Issues 

Page 18 GAO-06-735 Immigration Benefits
Appendix I: Scope and Methodology Appendix I: Scope and Methodology 

To identify the number of convicted sex offenders who filed family-based 

petitions, we conducted a computer match of U.S. Citizenship and 

Immigration Services (USCIS) family-based petitioner data with data on 

individuals contained in the Federal Bureau of Investigation’s (FBI) 

National Crime Information Center (NCIC) Convicted Sexual Offender 

Registry File, known as the National Sex Offender Registry. The USCIS 

petitioner data file contained records on 667,023 individuals who filed 

petitions for noncitizen relatives, such as a spouse or child, and 66,658 

individuals who filed petitions for noncitizen fiancé(e)s in fiscal year 2005. 

The FBI’s NCIC National Sex Offender Registry contained data on the 

412,773 convicted sex offenders as of December 2005. 

The USCIS and FBI data files contained seven common data elements: 

(1) name (2) date of birth, (3) Social Security number, (4) street address, 

(5) city, (6) state, and (7) ZIP code that we could attempt to match in order 

to determine which petitioners were registered sex offenders. The name 

and date of birth were always present in both datasets, but in some cases 

the other data elements in either the USCIS or FBI dataset were either 

missing or not entered correctly. In order to increase the possibility of a 

valid match, we first applied acceptable data-cleaning steps. For example, 

we eliminated certain extraneous characters from the names and 

addresses, such as dashes, periods and hyphens and other nonessential 

characters that would otherwise impede our matching. In addition, we 

corrected for certain obvious typographical errors, such as typing a zero 

instead of the letter O. 

We conducted our match in two steps. In the first step, we matched cases 

on name and Social Security number since the Social Security number is 

considered a unique identifier. For our purposes, if the name and Social 

Security number were the same in both cases, we considered it a match. In 

the second step, after eliminating those we matched based on name and 

Social Security number, we matched the remaining records on name and 

date of birth. It is possible for two people to have the same name and date 

of birth. Therefore, to be deemed a match for our purposes, the name, date

of birth, and several data elements needed to match to provide a high level

of assurance that the petitioner and the registered sex offender were the 

same person. For example, if the name, date of birth and street address, 

city, and ZIP code were the same, we considered it a match. We also 

analyzed the USCIS data set to determine the number of petitioners that 

may have filed more than one petition to arrive at the number of unique 

sex offenders. 

Page 19 GAO-06-735 Immigration Benefits
Appendix I: Scope and Methodology 

To determine the reliability of the USCIS data, we observed how petitioner 

data are entered into the USCIS data system, interviewed relevant USCIS 

officials and staff, reviewed pertinent documents, and performed 

electronic testing for obvious errors in accuracy and completeness. To 

determine the reliability of the FBI’s Convicted Sexual Offender Registry 

File, we interviewed FBI officials and system programmers knowledgeable 

about the data, reviewed pertinent information regarding the FBI’s sex 

offender registry, and performed electronic testing for obvious errors in 

accuracy and completeness. We determined that the data were sufficiently 

reliable for the purposes of this report. 

We conducted our work from August 2005 through June 2006 in 

accordance with generally accepted government auditing standards. 

Page 20 GAO-06-735 Immigration Benefits
Appendix II: 

A

GAO Contact and Staff 

cknowledgments 

Page 21 GAO-06-735

Appendix II: GAO Contact and Staff 

Acknowledgments 

GAO Contact Paul L. Jones, (202) 512-8777 

In addition to the above, Michael Dino, Assistant Director, Carla Brown, 

Christine Davis, Katherine Davis, Darryl Dutton, Lemuel Jackson, and 

James Ungvarsky were key contributors to this report. 

Immigration Benefits

Staff 

Acknowledgments 

(440444) 
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