Immigration Benefits: Circumstances under Which Petitioners' Sex Offenses May Be Disclosed to Beneficiaries
Published: 2006-06-14T00:00:00

Fast Facts:

Highlights:
section_title: Why GAO Did This Study
paragraphs: 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, fiances, 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 family-based 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.
section_title: What GAO Found
paragraphs: At least 398 convicted sex offenders filed a total of 420 petitions in fiscal year 2005 for spouses, fiances, children, and other relatives. Immigration law does not prohibit convicted sex offenders from petitioning to bring their spouses, fiances, 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 sex-related 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 fiances, 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 fiances, 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.

section_title: Letter
paragraphs: 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 family- based petitions were filed with USCIS. 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.
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.
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.” We  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 data-  matching 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.
subsections: section_title: Background
paragraphs: 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 Security 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.
U.S. citizens and lawful permanent residents, that is, petitioners, can  request or petition USCIS to allow certain relatives to immigrate to the  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. 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  with sources such as the FBI’s National Crime Information Center. 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. 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  who are required to register and that reside, work, or attend school within  the state.
section_title: Hundreds of Convicted Sex Offenders Have Petitioned for Spouses, Fiancé(e)s, and other Relatives, including Children
paragraphs: 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.
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. 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.
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. 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, the NSOR  classifies “sexual predator” as an offender who has been convicted of a  sexually violent offense and suffers from a mental abnormality or  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.
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  negative factors. 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.
section_title: Agencies Have a Framework for Disclosing Petitioners’ Criminal Sexual History to Noncitizen Beneficiaries
paragraphs: 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 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 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.
subsections: section_title: 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
paragraphs: 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.” 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  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.
section_title: New Statute Requires Disclosure of Petitioner’s Criminal Background Information to Some Noncitizen Beneficiaries
paragraphs: 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  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, 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. Any criminal background information  USCIS possesses with respect to the petitioner must accompany any  approved petition that is forwarded to the Department of State. 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.” To effectuate IMBRA’s mandatory disclosure requirement, the  Department of State must mail the visa applicant a copy of the petition,  including any criminal background information, as well as a government- developed domestic violence information pamphlet. 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.”
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. 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.
section_title: USCIS and Department of State Efforts to Issue Disclosure Guidance
paragraphs: 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  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). 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  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.
section_title: Concluding Observations
paragraphs: 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.
section_title: Agency Comments
paragraphs: 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.
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.
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.
section_title: Appendix I: Scope and Methodology
paragraphs: 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.
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.
section_title: Appendix II: GAO Contact and Staff Acknowledgments
subsections: section_title: Staff Acknowledgments
paragraphs: 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.