International Marriage Broker Regulation Act of 2005: Agencies Have Implemented Some, but Not All of the Act's Requirements
Published: 2008-08-08T00:00:00

Fast Facts:

Highlights:
section_title: Why GAO Did This Study
paragraphs: The International Marriage Broker Regulation Act of 2005 (IMBRA) was enacted to address issues of domestic violence and abuse against noncitizens (beneficiaries) married or engaged to U.S. citizens (petitioners) who have petitioned for them to immigrate to the U.S., including those who met through an international marriage broker (IMB). IMBRA mandated that GAO study the act's impact on the visa process for noncitizen spouses and fiance(e)s. This report addresses the extent to which the U.S. Citizenship and Immigration Services (USCIS), a component of the Department of Homeland Security (DHS); the Department of State (DOS); and the Department of Justice (DOJ) have implemented IMBRA, and the extent to which USCIS and DOS have collected and maintained data for this GAO report as required by IMBRA. To address these objectives, GAO reviewed the act and related legislation, analyzed IMBRA implementation guidance and available data on applications filed, and interviewed officials at USCIS, DOS, and DOJ.
section_title: What GAO Found
paragraphs: USCIS, DOS, and DOJ have implemented two of seven key IMBRA requirements identified by GAO, but five key provisions intended to provide beneficiaries with information about the petitioners seeking to bring them to the United States have yet to be completed. First, although IMBRA requires DOS to mail a copy of the approved petition to each beneficiary, the agency is not currently fulfilling this requirement. Second, IMBRA limits the number of petitions a person may file for a noncitizen fiance(e) unless USCIS grants a waiver of the filing limits. However, USCIS officials told GAO that they do not check all petitioners against records to determine if a petitioner has previously filed a fiance(e) petition. USCIS adjudicators are required to check the record if the petitioner self-attests that he or she has previously filed a petition. By limiting its checks to those petitioners who acknowledge prior filings, USCIS increases the risk that it will approve more fiance(e) petitions than allowed under IMBRA. Third, IMBRA mandates that after two approved petitions, upon filing of a third petition within 10 years of the first, USCIS is to notify both the petitioner and beneficiary of previously approved petitions filed by the petitioner. USCIS officials told GAO that they no longer try to notify beneficiaries because of the difficulty in obtaining accurate overseas mailing addresses. Thus, beneficiaries are left without all required information for making a decision about the person petitioning on his or her behalf. USCIS officials told GAO that they plan to ask DOS to notify beneficiaries during their visa interview with a DOS consular officer. Fourth, the requirement to provide beneficiaries with a pamphlet that discusses the visa application process and available resources if the beneficiary encounters domestic violence or abuse is not being met. USCIS has drafted the pamphlet, but has not established time frames for finalizing the pamphlet. Until the pamphlet is finalized, translated, and distributed, USCIS increases the risk that beneficiaries are not being made aware of their rights or the resources that are available should they encounter domestic violence. Lastly, IMBRA establishes federal criminal and civil penalties for IMBs who violate its provisions. Although DOJ has drafted IMBRA-related regulations regarding how civil penalties would be administered, these regulations cannot be finalized until DOJ, USCIS, and DOS decide which agencies will be responsible for investigating, referring, and prosecuting potential IMBRA violations. Until the agencies resolve these issues and establish an enforcement framework, it will be difficult for IMBRA violators to be penalized. USCIS is collecting and maintaining some of the data for this report as required by IMBRA; however, most of the data are not in a summary or reportable form and other required data have not been collected. For example, GAO could not determine the extent to which petitioners with a criminal history or history of violence have filed petitions because USCIS does not capture this data electronically. USCIS officials told GAO that they are considering modifying their data management system to collect data that is currently not being collected. However, no decisions have been made.

section_title: Letter
paragraphs: The Immigration and Nationality Act (INA) allows U.S. citizens  (petitioners) to petition for noncitizen fiancé(e)s, spouses, and minor  children (beneficiaries) to immigrate to the United States. Some  petitioners have criminal histories that could put these beneficiaries at risk  of abuse, such as sexual assault. The International Marriage Broker  Regulation Act of 2005 (IMBRA) was enacted to address issues of  domestic violence and abuse against beneficiaries by petitioners, including  those who met their foreign-born spouses through an international  marriage broker (IMB). Among other things, IMBRA contains  requirements that are intended to ensure that a beneficiary is informed in  the event that his or her petitioner has a criminal history or a history of  filing multiple petitions for fiancé(e)s to immigrate into the United States.  U.S. Citizenship and Immigration Services (USCIS) within the Department  of Homeland Security (DHS) and the Bureau of Consular Affairs within  the Department of State (DOS) play key roles in the disclosure of a U.S.  citizen’s criminal background information, including sex crimes, to  beneficiaries protected by IMBRA. For the purposes of making this  disclosure, USCIS must obtain and furnish the petitioner’s criminal  background information, along with the approved petition, to DOS, which  is to forward these materials to the beneficiary by mail. DOS, which is  responsible for reviewing beneficiary visa applications for approved  petitions for the purpose of issuing a visa, must also disclose the  petitioner’s criminal background information to the beneficiary during the  consular interview. While DOS is responsible for disclosing criminal  background information to the beneficiary, IMBRA requires USCIS to  inform beneficiaries if a U.S. citizen who has been approved twice before  files another fiancé(e) or spouse petition within 10 years of the first filing.
IMBRA also establishes disclosure and other requirements for IMBs to  help inform and provide greater assurance for the safety of noncitizen  fiancé(e)s who meet their U.S. citizen fiancé(e)s through an IMB. IMBs  who violate IMBRA’s provisions are subject to federal criminal and civil  penalties. IMBRA makes the Department of Justice (DOJ) responsible for  the imposition of civil penalties after notice and an opportunity for a  hearing.
Section 833(f) of IMBRA mandated that GAO study the impact of IMBRA  on the visa process for noncitizen fiancé(e)s, including reporting specific  data USCIS and DOS were to collect and maintain for GAO to do its study.  Other information IMBRA required GAO to report, such as the number of  international marriage brokers doing business in the United States and the  extent of brokers’ compliance with IMBRA, was not available, and  therefore we are not able to report such information. In accordance with  the congressional mandate and as discussed with the offices of the  Chairmen and Ranking Members of the Senate and House Judiciary  Committees, this report addresses the following questions:    To what extent have USCIS, DOS, and DOJ implemented the  requirements of IMBRA?
To what extent have USCIS and DOS collected and maintained data for  GAO reporting as required by IMBRA?
subsections: section_title: Scope and Methodology
paragraphs: To determine the extent to which USCIS, DOS, and DOJ implemented the  requirements of IMBRA, we reviewed the Act, its legislative history,  relevant provisions of the INA, and related legislation, the Adam Walsh  Child Protection and Safety Act of 2006 which contains provisions that  may affect a petitioner’s ability to have beneficiaries immigrate. For  purposes of this review, we summarized and grouped IMBRA’s  requirements into seven key areas and identified the actions taken and the  actions remaining in each of the key areas. To determine what actions had  and had not been taken, we obtained and analyzed pertinent  documentation, such as USCIS’s and DOS’s IMBRA implementation  guidance for its adjudicators and consular officers, respectively. We also  interviewed cognizant officials at USCIS headquarters and at its California  and Vermont Service Centers—the two service centers responsible for  processing petitions for alien fiancé(e)s; at DOS, and at DOJ. We  interviewed three DOS Consular Affairs Unit Chiefs by telephone and  received written responses to our questions from four other Unit Chiefs all  of whom were responsible for processing immigrant visa applications,  including fiancé(e) visas. These Unit Chiefs were at seven consular posts  located in Bangkok, Thailand; Bogotá, Colombia; Ciudad Juarez, Mexico;  Guangzhou, China; Ho Chi Minh City, Vietnam; Manila, Philippines; and  Moscow, Russia. We chose these posts because they issued about two- thirds of alien fiancé(e) visas in fiscal year 2007. While information we  obtained at these locations may not be generalized across all consular  posts, because we selected the posts based on the volume of activity, we  believe the posts provided us with a general overview and perspective on  the implementation of IMBRA at the selected posts.
To determine whether USCIS and DOS have collected and maintained data  for our report as required by IMBRA, we obtained and analyzed available  data for fiscal years 2006 and 2007 on fiancé(e) petitions filed from  USCIS’s application management system, and on visas issued to fiancé(e)s  from DOS’s visa database. To determine the reliability of data in USCIS’s  and DOS’s database, we observed how petitioner data are entered into  USCIS’s data system, reviewed pertinent USCIS and DOS documents, and  interviewed relevant USCIS and DOS officials. We determined that the  data we used from USCIS and DOS databases were sufficiently reliable for  purposes of this report. In addition, we interviewed cognizant officials at  DHS/USCIS in headquarters, Washington, D.C.; at the California and  Vermont Service Centers, and at DOS. We conducted this performance  audit from October 2007 to August 2008, in accordance with generally  accepted government auditing standards. Those standards require that we  plan and perform the audit to obtain sufficient, appropriate evidence to  provide a reasonable basis for our findings and conclusions based on our  audit objectives. We believe that the evidence obtained provides a  reasonable basis for our findings and conclusions based on our audit  objectives.
section_title: Background
paragraphs: USCIS is the agency responsible for reviewing and making decisions on  whether to approve or deny immigration benefit applications, including  petitions filed by U.S. citizens requesting to bring a noncitizen fiancé(e),  spouse, minor child, or other noncitizen relative to live permanently in the  United States in accordance with the INA. Only U.S. citizens can request or  petition for noncitizen fiancé(e)s to immigrate to the United States. To do  so, citizens must file a form I-129F, Petition for Alien Fiancé(e), with  USCIS to enable their fiancé(e) to come to the United States as a K-1  nonimmigrant and then apply for permanent residence. U.S. citizens who  have already married noncitizens living abroad may also file Form I-129F  to enable their spouse to come to the United States on a K-3 nonimmigrant  visa and then apply for permanent residency. The purpose of the form I- 129F is to establish the relationship of the petitioner to the beneficiary  who wishes to immigrate to the United States. For K-1 fiancé(e) petitions,  the petitioner must establish that the petitioner and fiancé(e) are free to  marry and that they have previously met in person within 2 years of filing  the petition. For K-3 spouse petitions, the petitioner must establish the  bona fide marital relationship to the beneficiary.
Two USCIS Service Centers, one in California and another in Vermont,  process all I-129F petitions. As part of its I-129F petition review, USCIS  obtains criminal history information for specified crimes from the  petitioner and conducts background checks on both the beneficiary and  petitioner. If the petitioner has ever been convicted of any of the  specified crimes, the petitioner is to provide to USCIS certified copies of  court and police records showing the charges and dispositions for every  such conviction. USCIS conducts name-based background security  checks—checks of a petitioner’s name and date of birth—-against the  Interagency Border Inspection System (IBIS). According to USCIS, IBIS  queries include a check of five National Crime Information Center  (NCIC) data files, which include the Convicted Sexual Offender Registry;  the Foreign Fugitive; Immigration Violator; Violent Gang and Terrorist  Organization; and Wanted Persons files. During a background security  check, if an IBIS query returns a “hit” where the name and date of birth  information entered returns a response from one or more of the databases  and it appears the petitioner may have a criminal background, USCIS  adjudicators forward this information to the Background Check Unit  located within the Service Center. This unit conducts further system  searches for verification of the criminal histories. After researching and  summarizing the criminal information on the petitioner, if there is no  national security or criminality issue requiring further investigation, unit  staff notate their findings in a memorandum, which they send back to the  adjudicator responsible for the file.
While IMBRA requires USCIS to collect petitioner criminal history  information, we reported in 2006 that USCIS does not have general  authority to deny a family-based petition solely on grounds that the  petitioner has a criminal sexual history. Since we issued our report,  Congress enacted legislation limiting a petitioner’s ability to immigrate  relatives, including fiancé(e)s. The Adam Walsh Child Protection and  Safety Act of 2006 prohibits DHS from approving any family-based  petition, including a fiancé(e) petition, for any petitioner convicted of a  specified offense against a minor unless the DHS Secretary, in his sole and  unreviewable discretion, determines that the petitioner poses no risk to  the beneficiary.
DOS is responsible for processing all approved visa petitions received  from USCIS and for determining whether to issue a visa to beneficiaries  who are overseas, such as fiancé(e)s and K-3 spouses. Consular officers  are responsible for reviewing (but not re-adjudicating) approved petitions  and supporting documentation, and determining whether the noncitizen  beneficiary meets admissibility requirements and can be issued a  nonimmigrant visa to enter the United States. As part of this review,  consular officers interview beneficiaries and ask questions about how the  beneficiary and petitioner met. Figure 1 shows the key steps in the I-129F  petition filing and visa application process, including filing a petition with  USCIS, conducting criminal background checks, USCIS adjudication, and  visa applicant interview by DOS.
IMBRA also requires IMBs to search the name of the U.S. client (potential  petitioner) against the National Sex Offender Public Registry or relevant  state sex offender public registries, and to collect background information  from the U.S. client, including the client’s marital history and arrest and  conviction information for specified crimes, and to provide this  information to the foreign client (potential beneficiary). IMBs may not  release the foreign client’s personal contact information to the U.S. client  until the required disclosures have been made and the foreign client  provides signed, written consent authorizing the IMB to release personal  contact information to the U.S. client. IMBs are also prohibited from  engaging in certain activities such as (1) providing personal contact  information of a foreign client to anyone other than the U.S. client and (2)  providing anyone with personal contact information or other information  about individuals under the age of 18. IMBRA establishes federal criminal  and civil penalties for IMBs that violate these provisions.  IMBRA-related  criminal cases are to be prosecuted by the U.S. Attorney’s offices, possibly  in coordination with the Civil Rights Division or the Child Exploitation and  Obscenity section of the Criminal Division depending on the  circumstances of the case. With respect to IMBRA-related civil cases, the  Attorney General has statutory responsibility for imposing civil penalties  after notice and the opportunity for an agency hearing.
Within DOJ, its Executive Office for Immigration Review (EOIR) is  responsible for interpreting and administering federal immigration laws  and rendering adjudicatory decisions on specific immigration cases.  Within EOIR, the Office of the Chief Administrative Hearing Officer is  responsible for hearing civil cases related to administrative fines that may  be imposed under the INA. For a summary of selected IMBRA  requirements for USCIS, DOS, DOJ, and IMBs see, Appendix I.
section_title: Agencies Have Implemented Some, Not All, IMBRA Requirements
paragraphs: USCIS, DOS, and DOJ have implemented some, but not all of the IMBRA  requirements that are designed to inform visa applicants about the persons  petitioning for them to immigrate to the United States. For example,  USCIS is collecting criminal background information from petitioners and  forwarding this information to DOS. DOS is in turn disclosing this  information to beneficiaries when it interviews beneficiaries during the  visa process. However, USCIS has yet to finalize the information pamphlet  required by IMBRA that is to contain information about the visa process  and about resources that are available should any beneficiary become a  victim of domestic violence. Until the pamphlet is finalized, DOS cannot  translate or distribute the pamphlet to beneficiaries as required by IMBRA.
Further, IMBRA assigns responsibility to DOJ for hearing cases and  imposing civil penalties against IMBs in violation of its provisions.  However, DOJ, DOS, and USCIS have outstanding enforcement issues to  resolve, such as which agencies will investigate, refer, and prosecute  cases. Although DOJ has drafted IMBRA-related hearing regulations, DOJ  states that these regulations cannot be finalized until a framework for the  investigation, referral, and prosecution of cases is agreed upon by USCIS,  DOS, and DOJ. Table 1 below summarizes selected IMBRA statutory  requirements and actions taken by USCIS, DOS and DOJ to implement  those requirements as of July 2008.
subsections: section_title: USCIS Obtains and Forwards to DOS Petitioner Criminal Background Information for Disclosure to Beneficiaries
paragraphs: To comply with IMBRA’s petitioner criminal background requirements,  USCIS revised the I-129F, Petition for Alien Fiancé(e) instructions, to  request that the petitioner provide certified criminal conviction  information to USCIS. The petition instructions ask whether the petitioner  has ever been convicted of any crimes as specified on the form and, if so,  directs the petitioner to provide certified conviction information. USCIS  does not rely solely on the petitioner to acknowledge if he or she has a  criminal history. As part of the adjudication process, USCIS conducts  security checks on all petitioners. If relevant criminal history—such as  information on domestic violence, sexual assault, child abuse, or homicide  that was not otherwise disclosed by the petitioner—is uncovered during  the security check, USCIS is to request the petitioner to submit certified  criminal conviction information before continuing with the adjudication of  the case. If the petitioner does not respond to the request to provide  additional information, the case is to be denied for failure to respond.
IMBRA requires that USCIS forward the petitioner’s criminal background  information to DOS. DOS in turn, is required to mail the petition, including  any criminal background information, to the beneficiary at the same time  as it mails the visa instruction packet. USCIS issued IMBRA  implementation guidance in July 2006 to its adjudicators directing them to  include the criminal background information in the file sent to DOS.  USCIS officials from both the California and Vermont Service Centers told  us that criminal background information is being forwarded to DOS for  disclosure to the beneficiary and as discussed later in this report DOS  consular officers are receiving this information. DOS also issued IMBRA  implementation guidance to its consular officers. DOS’s guidance states  that consular officers are to disclose criminal history information to  beneficiaries on two separate occasions: (1) when the visa application  instructions are mailed to the beneficiary and (2) during the consular  interview (which we will discuss later in this report). Although DOS’s  guidance does provide for the mailing of criminal history information to  beneficiaries, the guidance does not specifically require DOS to mail  beneficiaries a copy of the approved I-129F petitions, as required by  IMBRA. The I-129F petitions require petitioners to disclose additional  information beyond criminal background information, such as their  marital status and the number of prior I-129F petitions filed, approved or  denied. Thus, not mailing the petitions themselves could prevent  beneficiaries from obtaining relevant non-criminal information about their  petitioners that could affect their immigration decision. During the course  of this review, DOS informed us that it will revise its guidance to require  the I-129F petition itself to be mailed to beneficiaries when it mails the  visa instruction packet.
section_title: USCIS Has Modified Its Current Application Management System to Track Multiple Filers
paragraphs: To track petitioners who have filed and had two or more fiancé(e) or  spousal petitions approved, IMBRA requires that USCIS create a multiple  visa petition tracking database. USCIS officials told us that they have not  created a separate database to track multiple visa petition filers.  According to USCIS officials, they have addressed the requirement to  develop a multiple visa petition tracking database by modifying its  application management system, called CLAIMS, to enable adjudicators to  notate and track the specific number of fiancé(e) and spousal petitions  filed and approved for a particular petitioner. USCIS adjudicators use this  information to determine if IMBRA-established filing limits have been  exceeded. If exceeded, adjudicators are to check to see if the petitioner  requested a waiver of the filing limits. The form I-129F instructions inform  the petitioner of the filing limits and the need to request a waiver if the  filing limits have been exceeded.
section_title: USCIS Does Not Uniformly Determine Whether Petitioners Have Exceeded IMBRA’s Filing Limitations
paragraphs: IMBRA limits the number of fiancé(e) petitions a person may file unless  the petitioner requests and is granted a waiver of the filing limits by  USCIS. USCIS officials told us that they do not check every petitioner  against USCIS’s application management information system, called  CLAIMS, to determine if the petitioner has previously filed a fiancé(e)  petition. The I-129F, Petition for Alien Fiancé(e) form asks whether the  petitioner has ever previously filed for this or any other noncitizen  fiancé(e) or husband/wife. According to USCIS officials, if the petitioner  answers “yes,” adjudicators are to initiate a check against CLAIMS to  determine whether the petitioner had prior filings. If the petitioner  answers “no,” adjudicators are not required to initiate a check for multiple  petition filings. According to an adjudication officer, although USCIS  procedures do not require adjudicators to check every petitioner against  CLAIMS, adjudicators may initiate a check if other case information alerts  the adjudicator that the petitioner may have previously filed.
USCIS officials told us that checking petitioners’ names against CLAIMS  may result in multiple “hits” on people with names similar to or the same  as the petitioner’s. According to USCIS, checking every name against  CLAIMS would require a significant amount of review and research to try  and determine if the petitioner is a match to any of those already in  CLAIMS. However, USCIS officials did acknowledge that a more refined  search using the petitioner’s name and another piece of identifying  information, such as the petitioner’s date of birth, could reduce the  multiple hits and therefore reduce the number of petitioners who would  require additional research.
As shown in Table 1, USCIS adjudicators are to routinely check CLAIMS if  the petitioner self-attests that he or she has previously filed a petition.  Nevertheless, relying on petitioners’ self-attestation to identify previous  filers may not always provide accurate results, regardless of whether  petitioners must certify the truthfulness of their form I-129F attestations  under penalty of perjury. For example, in March 2006, we reported that  evidence suggested that immigration benefit fraud was an ongoing and  serious problem, although the full extent was not known. As a result, by  limiting USCIS checks to those petitioners that acknowledge prior filings,  USCIS increases its risk that it will approve more fiancé(e) petitions than  allowed under IMBRA, including petitions filed by persons with a record  of violent criminal offenses, who are not entitled to a waiver of IMBRA’s  filing limits except in extraordinary circumstances. USCIS’s reliance on  self-attestation also increases the risk that USCIS will not have accurate  multiple filer information to disclose to prospective beneficiaries. USCIS  has reported working to develop system enhancements that will facilitate  accurate systems checks, but has not specifically stated whether these  enhancements will enable it to check filing limits for all petitioners,  consistent with IMBRA.
section_title: Petitioners, but Not Beneficiaries, Are Notified of Prior Petition Approvals
paragraphs: IMBRA also mandates that USCIS notify petitioners, upon approval of a  second visa petition, that their filing information is being tracked. In  addition, after a second approval, upon filing of a third petition within 10  years of the first filing, USCIS is to notify both the petitioner and  beneficiary of the number of previously approved petitions filed by the  petitioner. The instructions to the form I-129F inform the petitioner of the  circumstances under which repeat filings will be tracked. USCIS officials  told us that the filing instructions to form I-129F are the mechanism by  which petitioners are informed that multiple filings will be tracked. If  USCIS determines a petitioner to be a multiple filer, but approves the  petition under its waiver authority, the approval notice will indicate  whether the approval is the 2nd, 3rd, 4th, etc.
Under IMBRA, USCIS is responsible for notifying beneficiaries of prior  petition approvals, in contrast with the disclosure of criminal conviction  information, which is to be made by DOS. USCIS officials told us that  initially they attempted to notify beneficiaries, as required. However,  USCIS no longer tries to notify beneficiaries because of the reported  difficulty in obtaining accurate overseas mailing addresses. Because of  inaccurate addresses, USCIS officials stated that a large number of  notifications were returned as undeliverable. Because of the difficulties  reported with overseas mail and the amount of undeliverable mail the  USCIS received, USCIS officials told us they plan to discuss a process with  DOS to have its consular officers assume this notification responsibility  and notify beneficiaries of prior petition approvals during the consular  interview, as consular officers do with criminal conviction information. At  the time of our review, DOS officials said they had not held a discussion  with USCIS about providing such notification. According to USCIS  officials, USCIS has drafted a memo to its adjudicators addressing the  planned notification process. However, in the absence of an agreement  with DOS to undertake this notification responsibility, beneficiaries are  not currently being notified about the number of previously approved  fiancé(e) or spousal petitions, as required by IMBRA.
section_title: Most DOS Consular Officers We Contacted Said They Are Disclosing Criminal Background Information to Beneficiaries, but Inquiries about Use of IMBs Are Not Always Made
paragraphs: Once USCIS forwards the petitioner’s criminal conviction information to  DOS, IMBRA requires that DOS disclose this criminal background  information and information regarding any protection orders related to  the petitioner to the beneficiary. In addition to disclosing this information  by mail as discussed above, DOS is to provide this information to the  beneficiary, in the beneficiary’s primary language, during the visa  application interview. Officials from six of the seven consular posts we  contacted told us that they were disclosing this information to the  beneficiaries in either the beneficiary’s primary language or a language  common to the consular officer and the beneficiary if translation services  into the beneficiary’s primary language were unavailable. An official from  the remaining post told us that consular officers at her post had not been  disclosing a petitioner’s criminal history to beneficiaries, but based upon  our inquiry, she now planned to have consular officers begin disclosing  criminal history information to beneficiaries. At the time of our interviews  with consular officials during February 2008, DOS had not yet issued  formal guidance to its consular posts regarding implementation of IMBRA.  In March 2008, DOS issued guidance to its posts on implementation of  IMBRA including the need to disclose petitioner criminal conviction  information for certain offenses and information related to any protection  orders related to the petitioner. The guidance also states that after  providing any related criminal history information, consular officers  should give the applicant time to decide if he or she still wishes to proceed  with the visa application process.
In addition to disclosing petitioner criminal background information to the  visa applicant during the consular interview, IMBRA mandates that DOS  ask beneficiaries if an IMB facilitated the relationship between the  petitioner and beneficiary. If so, DOS is to obtain the IMB’s name from the  beneficiary and confirm whether the IMB gave the beneficiary all the  information required by IMBRA, such as the petitioner’s marital, criminal,  and protection order history. Officials from four of the seven consular  posts we contacted told us that their officers had not been inquiring about  whether services of an IMB were used. Officials from two posts told us  their consular staff asked questions about how the petitioner and  beneficiary met, but not specifically whether the services of an IMB were  used. An official from one post stated that the post’s consular staff asked  questions about how the petitioner and beneficiary met as well as whether  or not the services of an IMB were used. Issued after our interviews, DOS’s  March 2008 guidance to consular posts states that consular officers should  ask the beneficiary the questions mandated by IMBRA, including whether  an IMB facilitated the relationship, what the IMB’s name was, and whether  the IMB provided the information required by IMBRA. To assist in this  effort, USCIS officials told us that they plan to amend the I-129F form to  ask those petitioners who acknowledged using an IMB to submit the IMB’s  certification that it made the required IMBRA disclosures to the  beneficiary.
Consular officers from six of seven offices told us that they have  encountered relatively few cases where the petitioner had a criminal  history. For example, officials from one consular post that processed over  11,000 K-1 and K-3 visa applications in 2007, told us that the post  encounters about 20 applications per year (about 0.2 percent) where the  petitioner had a criminal history involving violent IMBRA-specified  offenses. Officials from two of the seven offices told us that they could not  recall any fiancé(e) visa applicants that acknowledged using an IMB.  However, officials from another consular post stated that they conducted  a survey which indicated that about 12 percent of their fiancé(e) visa  applicants used the services of an IMB.
section_title: USCIS Has Not Finalized the Information Pamphlet Designed to Inform Beneficiaries about Their Legal Rights and Resources
paragraphs: IMBRA requires that USCIS, in consultation with DOS and DOJ, develop  an information pamphlet for beneficiaries to include information on the  visa application process; the illegality of domestic violence, sexual assault,  and child abuse in the U.S.; the legal rights of immigrant victims and the  resource services available to them; child support; marriage fraud; a  warning that some U.S. citizens with a history of violence may not have a  criminal record; and information on requirements for IMBs under IMBRA.  Once finalized, DOS is to translate the pamphlet into at least 14 foreign  languages, and every 2 years, USCIS, in consultation with DOJ and DOS,  shall determine at least 14 language translations for the pamphlet based on  the languages spoken by the greatest concentrations of K nonimmigrant  visa applicants. Beneficiaries must receive the pamphlet from consular  officers during visa interviews and from USCIS adjudicators during  adjustment interviews  and IMBs must provide the pamphlet to their  foreign clients. In addition, the pamphlet is to be posted on DHS, DOS, and  consular post Web sites. Further, USCIS is to develop summaries of the  pamphlet to be discussed with beneficiaries in their primary languages  during consular or adjustment interviews. The pamphlet was to have been  available for distribution by May 2006.
As of July 2008, USCIS has yet to finalize the information pamphlet.  According to USCIS officials, the time needed to coordinate with various  USCIS and DHS components is one reason for delay in finalizing the  pamphlet. In April 2008, USCIS officials told us that the draft pamphlet had  been forwarded to DHS’ Office of General Counsel and the Office of  Management and Budget (OMB) for review. The pamphlet was under  review through June of 2008. IMBRA also requires that USCIS consult with  nongovernmental entities with expertise in areas such as the legal rights of  immigrant victims of battery and extreme cruelty in developing the  pamphlet. On July 14, USCIS signed the Federal Register notice seeking  public comments on the pamphlet. On July 22, the Federal Register notice  and pamphlet were published and USCIS intends to utilize the 60-day  public comment period to provide the public, including any interested  nongovernmental organizations, an opportunity to comment on the draft  pamphlet before USCIS finalizes the pamphlet for distribution and  publication. USCIS officials told us they did not know when the pamphlet  would be finalized, nor did they have a specific time frame for finalizing  the pamphlet. Figure 2 below shows a timeline which illustrates key steps  in the development of the information pamphlet.
Since USCIS has not finalized the information pamphlet, DOS has been  unable to translate it. DOS officials told us that once they receive the  finalized pamphlet, the translations would be done expeditiously. Until the  pamphlet is finalized, translated, and distributed USCIS increases the risk  that beneficiaries are not being made aware of their rights or the resources  that are available should they encounter domestic violence.
section_title: Framework for the Investigation, Referral, and Prosecution of IMBRA Violators Still under Development
paragraphs: As discussed earlier in this report, IMBRA establishes federal civil and  criminal penalties for IMBs who violate its provisions. However, USCIS,  DOS and DOJ officials told us that there was no framework in place for  enforcing the provisions related to potential IMBRA violations by IMBs.  DOJ and DOS officials told us that the agencies are discussing these  issues, but they could not tell us when a framework would be in place.
DOJ officials told us that the Office of the Chief Administrative Hearing  Officer, within DOJ’s Executive Office for Immigration Review (EOIR),  would likely hear civil cases under IMBRA, just as it hears civil cases  under the INA. The Chief Administrative Hearing Officer within EOIR had  drafted IMBRA-related regulations regarding how civil penalties would be  administered, but these regulations cannot be finalized until the agencies  decide who will be responsible for investigating, referring, and ultimately  prosecuting potential violations at a hearing before DOJ’s Chief  Administrative Hearing Officer. DOJ officials stated that since IMBRA has  been enacted, there have been no civil or criminal cases brought against  IMBs. Without a framework for enforcement of the IMBRA provisions, it  will be difficult for IMBRA violators to be prosecuted and assessed  applicable penalties.
section_title: Most of the USCIS Data Required for GAO Study Are Not in a Summary or Reportable Form; Other Required Data Are Not Collected
paragraphs: As part of our study on the impact of IMBRA on the K nonimmigrant visa  process, IMBRA mandated that USCIS and DOS collect and maintain  specific data for us to report. This required data included changes in the  number of fiancé(e) petitions filed and the extent to which petitioners had  one or more criminal convictions or a history of violence, including how  many of those petitioners had used services of an IMB or had been granted  a waiver of IMBRA’s filing limits. Although IMBRA mandated that USCIS  and DOS collect and maintain the data necessary for us to conduct such a  study, the data we are requested to report on are essentially petition- driven data for which USCIS would have responsibility to collect and  maintain. While USCIS has collected some data necessary for this study,  most of the data IMBRA calls for us to report are not available in a  summary or reportable format. For example, USCIS provided us with data  on the number of fiancé(e) petitions filed in the past three fiscal years.  However, data on which petitioners had criminal convictions or a history  of violence were not available in a summary or reportable format. That is,  although the I-129F petition asks the petitioner to list specified criminal  convictions, USCIS does not capture this data electronically.
Table 2 lists the petition-related data elements that IMBRA requires GAO  to report on and whether the data were available in a summary or  reportable format.
Available USCIS data shows that the number of I-129F petitions filed since  IMBRA was passed declined slightly from about 66,200 in fiscal year 2006  to about 62,500 in fiscal year 2007. The approval rate for fiancé(e) petitions  decreased slightly from about 86 percent to about 81 percent over the  same time period. In fiscal year 2007, of the approximately 62,500 petitions  filed, 309 (less than 1 percent) petitioners applied for a waiver of the filing  limitations through the service centers. USCIS service centers approved  308 waiver applications and denied one; however, the reasons for the  approval and denial decisions are unknown since USCIS does not  currently maintain such data. In fiscal year 2007, the California Service  Center reported 1,529 petitions filed by people who had previously filed.  During that same period, USCIS service centers reported 176 petitions  filed by concurrent filers.
USCIS officials told us that for the data elements currently not available in  summary or reportable format they are actively seeking to modify the  CLAIMS application management system to capture this data. These  modifications would include, for example, creating new data fields in  CLAIMS to (1) capture the reason a petition is denied or granted a waiver,  such as whether USCIS denied a petition based on filing limitations, and  (2) identify those petitioners that had a criminal conviction or a history of  violence. USCIS officials told us that they were in the process of  developing a business case to modify CLAIMS for USCIS senior  management review. If USCIS senior management approves the business  case, then the changes to CLAIMS would be made. USCIS officials were  unable to provide a time frame for when the review of the business case  would be completed and, if approved, when the changes to CLAIMS would  be made.
section_title: Conclusions
paragraphs: The purpose of IMBRA is to address issues of domestic violence and abuse  against beneficiaries by petitioners, including those who met their foreign- born spouses through an international marriage broker. While DHS/USCIS,  DOS, and DOJ have taken some steps to implement IMBRA, certain  IMBRA requirements have yet to be fully implemented, increasing the risk  that beneficiaries are not fully aware of their petitioner’s background or  their rights. DOS’s current procedures do not provide for mailing the  approved I-129F petitions to beneficiaries. During the course of this  review, DOS informed us that it will revise its guidance to require the I- 129F petition to be mailed to beneficiaries when it mails the visa  instruction packet. USCIS’s current procedures do not ensure that all  petitioners are within IMBRA’s multiple filing limitations because USCIS  does not check all petitioners for prior filings. Beneficiaries are not being  notified of the number of previously approved petitions filed by their  petitioner as required by IMBRA. Without developing a mechanism to  check all petitioners for prior filings nor a mechanism for sharing  information with beneficiaries about the number of previously approved  petitions filed by their petitioner, beneficiaries may not have all the  information they need to make an informed decision about whether to  immigrate to the United States. Until the information pamphlet is finalized,  translated and distributed, USCIS increases the risk that beneficiaries are  not being made aware of their rights or the resources that are available  should they encounter domestic violence. Without a legal framework for  enforcing IMBRA’s provisions, it will be difficult for IMBRA violators to be  prosecuted and assessed applicable penalties.
We could not determine the reason a petitioner was denied or granted a  waiver or the extent to which petitioners with a criminal history or history  of violence have filed K nonimmigrant petitions, including how many of  those petitioners used the services or an IMB or received waivers of  IMBRA’s filing limits, because USCIS did not collect and maintain this data  in a summary or reportable format for this study. Should USCIS modify its  CLAIMS system to capture this data, USCIS may be able to report this  information in the future.
section_title: Recommendations
paragraphs: To improve implementation of IMBRA and to help ensure that  beneficiaries receive all IMBRA-required information, we recommend that  the Director, USCIS:    Develop a mechanism to check all petitioners for prior filings to  determine if a petitioner exceeds the filing limits established by  IMBRA.
Develop a mechanism, in consultation with the Secretary of State, to  implement the IMBRA requirement that beneficiaries be notified  regarding the number of previously approved petitions filed by the  petitioner.
Develop a timeframe for finalizing the information pamphlet so that it  can be translated and distributed as required by IMBRA.
In order to help ensure that penalties can be imposed on IMBRA violators  as provided for in the law, we recommend that the Secretary of Homeland  Security  In consultation with the Secretary of State and the Attorney General,  develop a framework for the investigation, referral, and prosecution of  potential IMB violations of IMBRA.
section_title: Agency Comments and Our Evaluation
paragraphs: We provided a draft of this report to the Secretaries of Homeland Security  and State and the Attorney General for review and comment. We received  comments from DHS that are reprinted in appendix II. DHS concurred  with our recommendations and outlined actions that USCIS and DHS are  undertaking to address them. DOS provided technical comments, which  we have incorporated into the report as appropriate. DOJ did not provide  comments.
In its comments, DHS stated that USCIS is actively seeking to modify the  CLAIMS database in order to provide an automated solution for identifying  multiple filers. Additionally, USCIS is in the process of refining the search  criteria to reduce multiple matches on people with common last names.  DHS also stated that USCIS was actively working with DOS to ensure that  DOS is aware of USCIS annotations on the I-129F petitions indicating  multiple filings so that DOS can inform its consular officers to notify  beneficiaries of the number of previously approved petitions filed by the  petitioner. Further, DHS stated that USCIS has taken a major step toward  meeting the report’s recommendation to finalize the IMBRA-required  information pamphlet by seeking public comment on the draft pamphlet  through the publishing of the Federal Register notice and pamphlet on  July 22, 2008. Lastly, DHS stated that it plans to consult with the  departments of State and Justice to implement the necessary framework  for the investigation, referral, and prosecution of potential IMBRA  violations and that work towards implementing this recommendation is  under way. We agree that these actions should help improve the  implementation of IMBRA and help ensure that beneficiaries receive all  IMBRA-required information as well as provide for the imposition of  penalties on IMBRA violators as provided for in the law.
We are sending copies of this report to the Secretaries of Homeland  Security and State and the Attorney General. We will send copies to other  interested parties and make copies available to others who request them.  In addition, the report will be available at no charge on GAO’s Web site at  http://www.gao.gov.
If you or your staffs have any questions about this report, please contact  me at (202) 512-8777 or at stanar@gao.gov. Contact points for our Office 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 III.
section_title: Appendix I: Summary of Selected IMBRA Requirements for USCIS, DOS, DOJ, and IMBs
paragraphs: Create a database to track multiple visa petitions filed for fiancé(e)s and  spouses.
Upon approval of 2nd visa petition for a fiancé(e) or spouse, notify  petitioner that multiple filings are being tracked; after 2nd petition approval,  if another is filed within 10 years of first, notify petitioner and beneficiary of  number of previous approvals.
Obtain petitioner’s criminal history information.
USCIS is to provide a copy of the petition and any petitioner criminal  background information to DOS, which must mail such documentation to  the beneficiary, along with other materials such as the domestic violence  information pamphlet.
During the visa interview, DOS is to:  Share petitioner’s criminal background information with the visa applicant  (beneficiary) in his/her primary language. DOS may not disclose a victim’s  name or contact information, but shall disclose the relationship of the  victim to the petitioner. DOS shall inform the visa applicant that criminal  background information is based on the available records and may not be  complete.
Provide visa applicant a copy of the domestic violence information  pamphlet and an oral summary in the applicant’s primary language.
Ask visa applicant, in the applicant’s primary language, whether an  international marriage broker facilitated the relationship between the  applicant and the U.S. petitioner, and if so, obtain the identity of the IMB  from the applicant and confirm that the IMB provided the applicant required  information and materials.
Develop information pamphlet and pamphlet summaries for K  nonimmigrants on domestic violence rights and resources, in consultation  with DOS and DOJ.
Translate information pamphlet into at least 14 foreign languages specified  by IMBRA. Every 2 years, translate pamphlet into at least 14 more  languages, as specified by USCIS in consultation with DOS and DOJ.
IMBRA specifies four methods of disseminating the information pamphlet:  By mail: DOS to mail pamphlet to visa applicant when it mails the visa  instruction packet and a copy of the petition (including any criminal history  information). Pamphlet shall be in the primary language of the applicant or  in English if no translation is available.
During interview: USCIS and DOS to distribute information pamphlet to  beneficiary at any USCIS adjustment interview or DOS visa interview. At  the respective interview, USCIS and DOS officers must also review  pamphlet summary with the applicant in his/her primary language.
On the web: DHS, DOS and its consular offices must post pamphlet on  their websites.
By the IMB: IMBs are to provide the pamphlet to their foreign clients in the  clients’ primary language.
Impose federal civil penalties associated with IMB violations of IMBRA.
IMBs cannot provide any individual or entity with the personal contact  information, photograph, or general information about the background or  interests of any individual under the age of 18  Search the National Sex Offender Registry or State sex offender public  registry; collect background information about the U.S. client such as U.S.  client’s marital and criminal history, including protection orders or  restraining orders.
Before providing U.S. client or his/her representative with the personal  contact information of any foreign client, IMB must collect the U.S. client’s  sex offender registry and background information, share such information  with the foreign client, and obtain the foreign client’s signed, written  consent to share his/her personal contact information with the U.S. client.
IMBs shall not provide the foreign national client’s personal contact  information to any person or entity other than a United States client.
IMBs shall not disclose to the beneficiary the name or location of any  victim of the U.S. client, but shall disclose the relationship between the  U.S. client and the victim.
section_title: Appendix II: Comments from U.S. Department of Homeland Security
section_title: Appendix III: GAO Contact and Staff Acknowledgments
subsections: section_title: GAO Contact
section_title: Staff Acknowledgments
paragraphs: In addition to the contact named above, Michael Dino, Assistant Director,  and Carla Brown, Analyst-in-Charge, managed this assignment. Lemuel  Jackson and James Russell made significant contributions to the work.  Stanley Kostyla and James Ungvarsky assisted with design, methodology  and data analysis. Adam Vogt provided assistance in report preparation;  Christine Davis and Willie Commons III provided legal support; Karen  Burke and Tina Cheng developed the report’s graphics.