Immigration Benefits: Improvements Needed to Fully Implement the International Marriage Broker Regulation Act
Released: 2014-12-10T00:00:00

Letter

Background

I-129F Petition and K Visa Adjudication Processes

Within DHS, USCIS is responsible for adjudicating immigration benefit applications, including I-129Fs filed by U.S. citizens to bring a foreign national fiancé(e) to the United States through a K-1 visa. If the K-1 visa is issued, the INA provides that the petitioner and fiancé(e) must marry within 90 days of the fiancé(e)’s admission into the country, after which the K-1 visa expires. The I-129F petition can also be used to bring a noncitizen spouse to the United States under a K-3 visa while awaiting the approval of an immigrant petition and availability of an immigrant visa.

Noncitizen fiancé(e)s, upon marriage to the petitioner, and noncitizen spouses who are admitted to the United States must then apply to adjust their status to lawful permanent resident by filing with USCIS a Form I-485, called an Application to Register Permanent Residence or Adjust Status.

In fiscal year 2013, USCIS approved 30,400 I-129F petitions and State issued 30,290 K visas. general, has declined since fiscal year 2008, with the exception of fiscal year 2011, during which there was a slight increase over the previous fiscal year. USCIS approved the majority of I-129F petitions submitted from fiscal year 2008 through fiscal year 2013 (see fig. 1).

The number of I-129F petitions approved in a fiscal year will not equal numbers of K visas issued in the same fiscal year because, for example, State may adjudicate the visa applications in a subsequent fiscal year.

IMBRA Disclosure and Reporting Requirements

Both USCIS and State’s Bureau of Consular Affairs play key roles in providing information about petitioners to beneficiaries. In accordance with IMBRA, once a USCIS officer approves an I-129F petition, USCIS must forward the approved I-129F petition and relevant information to State, which mails to the beneficiary these materials and the IMBRA pamphlet—an informational document that outlines the legal rights and resources for immigrant victims of domestic violence. According to State’s FAM, consular officers must also discuss the pamphlet and petitioners’ criminal history information during the K visa applicant interview to ensure that the beneficiary understands his or her legal rights and access to victim services in the United States and has available information about the petitioner.

IMBRA also establishes disclosure and other requirements for IMBs to help inform and provide greater assurance for the safety of beneficiaries who meet their potential U.S. citizen petitioners through an IMB. For example, IMBRA requires that IMBs collect specified information, such as criminal arrest and conviction information, from petitioners for disclosure, and obtain written approval from beneficiaries before releasing beneficiaries’ contact information to potential petitioners. DOJ is responsible for pursuing civil and criminal penalties under IMBRA and, pursuant to the Violence Against Women Reauthorization Act of 2013, was required to report to Congress on, among other things, the policies and procedures for consulting with DHS and State in investigating and prosecuting IMBRA violations by petitioners and IMBs.

DHS, State, and DOJ Have Processes to Ensure IMBRA Compliance, but DHS and State Could Better Implement Disclosure Requirements

USCIS Has Processes to Collect Petitioner Information, but the I-129F Petition Has Errors

USCIS has implemented processes to collect information from petitioners; however, USCIS is in the process of revising the current version of the I- 129F petition to address errors or limitations that may limit or otherwise affect the accuracy of petitioners’ disclosure to USCIS of all information required by IMBRA. The I-129F petition, along with any supporting documentation submitted by the petitioner, is USCIS’s primary source for information on petitioners’ prior I-129F petition filings and criminal convictions—key information that the U.S. government is required under IMBRA to obtain and disclose to beneficiaries. In particular, USCIS uses the information disclosed through the I-129F petition to (1) inform its criminal background checks of petitioners, and (2) determine if petitioners have filed prior I-129F petitions and are requesting one of the three IMBRA waivers, as appropriate.

Conducting background checks on petitioners. Pursuant to IMBRA, USCIS conducts criminal background checks on each petitioner using the information provided on the I-129F petition. Specifically, according to USCIS’s standard operating procedures, USCIS officers are to conduct background checks using petitioners’ names and dates of birth against the TECS database within 15 days of receiving I-129F petitions. During a background check, if a TECS query returns a “hit,” USCIS officers are to forward this information to the background check unit located within each service center for further review. According to USCIS service center officials, the completeness of the criminal background information contained within TECS is dependent on the extent to which state and local law enforcement agencies enter complete information into the Federal Bureau of Investigation’s (FBI) National Crime Information Center database (NCIC). USCIS is to subsequently provide this information to State, whose consular officers are to share this information with beneficiaries during the K visa interview. When sharing this information with the beneficiaries, consular officers must also inform them that the criminal background information is based on available records and may not be complete, something the IMBRA pamphlet also notes.

Consistent with IMBRA, the waivers for filing limits apply only to K-1 petitioners. See § 1184(d). officers are to request that the petitioner provide the aforementioned waiver request letter and supporting evidence before deciding whether to approve or deny the petition. USCIS may deny a waiver request if the petitioner fails to provide sufficient documentation in support of the waiver within 12 weeks, or if the documentation provided does not justify granting a waiver. USCIS officers may also deny an I-129F petition if they discover that a petitioner does not, for example, fully disclose an IMBRA-specified offense conviction or protective order information.

According to USCIS’s standard operating procedures, USCIS officers are to use the information obtained from the background check, CLAIMS 3 data on prior filings, and the I-129F petition and supporting evidence to determine if petitioners have disclosed all of the information required by IMBRA. However, the I-129F petition contains errors and omissions that we, USCIS, and DOJ have identified and that may limit or affect the accuracy of information disclosed by a petitioner. Specifically, the I-129F petition inaccurately describes IMBRA’s filing limits and does not fully address IMBRA’s disclosure requirements. In particular, the language on the I-129F petition states that the filing limits apply to petitioners who have filed three or more I-129F petitions, or who have filed three or more I-129F petitions and the first I-129F petition was approved within the last 2 years, whereas the instruction accompanying the I-129F petition aligns more closely with IMBRA and provides that a waiver is required if a prior I-129F petition had been approved in the past 2 years. USCIS Service Center Operations officials stated the I-129F petition does not accurately describe the filing limits and therefore there is a risk that petitioners are disclosing inaccurate information regarding their filing history on the I- 129F petition, which may affect how USCIS evaluates whether a petitioner requires a waiver. In October 2014, in response to our audit work, USCIS modified its website to inform petitioners that the petition is inaccurate and provide them with instructions that clarify the requirements. In addition, DOJ officials responsible for enforcing IMBRA stated that they have been working with USCIS on revisions to the I-129F petition to better ensure that IMBRA’s disclosure requirements are met. For example, USCIS Service Center Operations officials noted that, in consultation with DOJ, they plan to include questions on the I-129F petition regarding whether petitioners have civil protective or restraining orders, and prior arrests or convictions related to prostitution.

According to USCIS Service Center Operations officials, as of August 2014, USCIS has been in the process of revising the current version of the I-129F petition. According to A Guide to the Project Management Body of Knowledge, which provides standards for project managers, specific goals and objectives should be conceptualized, defined, and documented in the planning process, along with the appropriate steps, time frames, and milestones needed to achieve those results. USCIS Service Center Operations officials stated that there is no target time frame for completing revisions to the I-129F petition within USCIS before DHS and the Office of Management and Budget (OMB) undertake their respective reviews, in part because of the interagency review process among DHS, State, and DOJ, which was ongoing for approximately 10 months as of August 2014. USCIS officials noted that until revisions to the I-129F petition are complete, petitioners can refer to the Form I-129F Instructions, which USCIS makes available as a separate document, or to the clarifying instructions added to its website in October 2014, and USCIS officers should follow the I-129F SOP, each of which more accurately describe IMBRA’s filing limits and circumstances under which a waiver must be requested. However, USCIS officials acknowledged that petitioners may not use the instructions in completing the I-129F petition since they are contained in a separate document and are not referred to on the I-129F petition. Further, as we discuss later in this report, our review of CLAIMS 3 data indicates that USCIS officers have not consistently followed the I-129F SOP, which USCIS has modified multiple times since the summer of 2013 to address, among other things, inaccuracies in the language associated with the application of IMBRA waivers.

USCIS has previously revised the I-129F petition. For example, in July 2007, USCIS revised the I-129F petition to require that petitioners disclose criminal convictions, prior I-129F filings, and the use of IMBs.June 2013, USCIS further revised the I-129F petition by adding, among other things, a section for USCIS officers to denote for State officials whether the I-129F petition contains prior filing or criminal history information that must be disclosed to the beneficiary. According to USCIS Service Center Operations officials, including the time for public comment and OMB’s review of the proposed revisions, it took nearly 2 years to issue the revised I-129F petition (issued in June 2013). USCIS officials noted that until the revisions to the I-129F petition are completed, the agency is at risk of not collecting complete information from petitioners. Establishing time frames for when USCIS will complete its review of the I- 129F petition would help the agency better monitor progress toward finalizing revisions to the petition, which are intended to ensure that IMBRA’s disclosure requirements are met.

State Has Processes to Disclose IMBRA Information to Beneficiaries, but Could Better Document that These Disclosures Occurred

State has established processes to disclose and provide IMBRA information to beneficiaries, such as petitioners’ criminal history information, prior I-129F filings, and the IMBRA pamphlet, in accordance with IMBRA and agency guidance to consular officers. However, State’s consular officers have not consistently documented that beneficiaries, at the time of their in-person interviews, received all of the required information. Relevant guidance to consular officers, found in State’s FAM, outlines procedures consular officers are to follow, including requirements for documenting that beneficiaries have received the required information. State officials indicated that, in accordance with IMBRA, beneficiaries are provided with IMBRA information and disclosures at two points in the K visa application process—(1) in the mailing of the K visa application package and (2) at the in-person visa interview, where disclosure is to be documented.

Application package. State’s FAM requires that upon receipt of the approved I-129F petition and other information from USCIS, consular officers provide IMBRA-related disclosures and the IMBRA pamphlet to beneficiaries by mail as part of an application package. In August 2008, we recommended that DHS and State develop a mechanism to ensure beneficiaries are notified of the number of previously filed I-129F petitions by the petitioner. In response, in October 2008, State revised its guidance to consular officers to require that the application package include the approved petition.posts we interviewed, their respective posts mailed the IMBRA disclosures, pamphlet, and approved petitions to beneficiaries in advance of the in-person visa interview. Consular officials at one post we interviewed in June 2014 stated that they did not mail IMBRA-related disclosures, such as the I-129F petition containing criminal history information, to beneficiaries in advance of their interviews because of limitations in the post’s support contract for mail services. Rather, this post provided the IMBRA-related disclosure information to beneficiaries only during the K visa interview. As a result of our audit work, State’s Consular Affairs Bureau officials in Washington, D.C., provided guidance to this post to ensure that consular officers mail IMBRA-related disclosure information and the IMBRA pamphlet to all beneficiaries prior to visa interviews, in accordance with IMBRA and FAM requirements. Not all beneficiaries who are sent an application package schedule a K visa interview, according to Consular Affairs officials. Ultimately, consular officers said there are various reasons an applicant might not apply for a visa, and could not say to what degree the information provided in the mailings in advance of the interviews was a factor in this decision.

According to consular officers at four of five consular Applicant interview. Consular officers are to provide the beneficiary with information about the petitioner’s criminal history and prior I-129F petition filings and the IMBRA pamphlet in the beneficiary’s primary language during the K visa interview, in accordance with IMBRA, and allow time for beneficiaries to consider the information. State requires consular officers to document within its IVO database whether they made all of these disclosures to the beneficiary during the visa interview. For example, State’s FAM requires consular officers to denote within IVO that the “IMBRA pamphlet was received, read, and understood” for each K visa beneficiary. According to Consular Affairs officials, other than this FAM requirement for documentation in the consular notes in IVO, State does not have other mechanisms by which it ensures that consular officers are providing required information to K visa applicants during the in-person interviews.

Regarding the remaining 80 of the 227 cases, State consular officials in Washington, D.C., said that possible reasons the interview may not have taken place are that the interview has yet to be conducted with the K visa applicant, or the case may not have been sent from USCIS to State for adjudication. notations in accordance with FAM guidance. Specifically, we found that consular officers fully documented that the IMBRA pamphlet was received, read, and understood in 21 of the 84 cases (or about 25 percent); however, we found that in 15 of the 84 cases (or about 18 percent),consular officers partially documented that the IMBRA pamphlet was provided to the beneficiaries. In the cases for which consular officers provided partial notations, we found that the notes varied from “IMBRA given” to “domestic violence brochure given.”

Moreover, in 63 of the 147 cases where State’s data indicated that consular officers had interviewed beneficiaries (but for which there was no corresponding USCIS record of the beneficiary requesting a change to Lawful Permanent Resident status) we found in 28 (or about 44 percent) of these 63 cases that consular officers did not document that the IMBRA pamphlet was received, read, and understood by beneficiaries. Full documentation regarding the IMBRA pamphlet was noted in 26 (or about 41 percent) of these 63 cases, and was partially noted in 9 (or about 14 percent) cases.

In our guide for assessing strategic training and development efforts, we have reported that training is essential to developing the knowledge and skills needed to administer agency programs properly.Consular Affairs officials, both the FAM and a relevant guidance cable on IMBRA implementation clearly describe the documentation requirements for the disclosure of information to beneficiaries during interviews, and accordingly, these officials attributed the lack of documentation in IVO to consular officer error. State last issued a cable on IMBRA implementation, which covers the FAM’s IMBRA-related documentation requirements, to consular posts in 2012. According to Consular Affairs officials, State generally does not send frequent cables to overseas posts to reiterate FAM requirements unless there are significant changes to sections of the FAM that warrant additional guidance or explanation to consular officers. However, these officials stated that they planned to According to send another cable to all overseas posts in the fall of 2014, given recent revisions to the FAM on IMBRA implementation. In response to our work, they said that they could include a reminder in that cable for consular officers to follow the FAM’s IMBRA-related documentation requirements. We reviewed a draft of that cable in October 2014, and it includes, among other things, a reminder for officers to document in IVO that the IMBRA pamphlet was received, read, and understood for all K visa applicants.

While the cable may be a helpful reminder for incumbent consular officers, State’s consular officer training courses do not specifically address the FAM’s IMBRA-related documentation requirements. Standards for Internal Control in the Federal Government maintains that federal agencies are to provide staff with the training necessary to carry out assigned responsibilities and meet the organizations’ objectives. According to Consular Affairs officials, State offers two key courses to consular officers through its Foreign Service Institute on the adjudication of immigrant visas, including K visas—mandatory basic training for entry- level officers and a voluntary course for midlevel consular officers offered four times a year. However, these officials stated that the training courses are generally broad and comprise many different types of nonimmigrant visas and so do not cover as part of their curricula detailed procedures for all visa types such as the FAM’s IMBRA-related documentation requirements. For instance, State’s Foreign Service Institute officials stated that the basic training course briefly covers State’s IMBRA-related disclosure requirements in the instructor’s notes, but does not address the FAM’s requirement for consular officers to document these disclosures in IVO. Similarly, the voluntary course for midlevel consular officers does not address the FAM’s documentation requirements.

A Consular Affairs official stated that there may be some variation in the content of this course offered to midlevel consular officers, but when he teaches the course, he chooses to cover the FAM’s IMBRA-related documentation requirements in his oral remarks. Moreover, Consular Affairs officials stated that midlevel consular officers are to provide training to entry-level officers on a routine basis on the FAM’s IMBRA- related disclosure and documentation requirements. These officials added that State has an internal website for consular training, which includes a reminder for supervisory consular officers that orientation upon arrival and continuing on-the-job training at post is vital to develop fully proficient consular officers. Incorporating the FAM’s IMBRA-related documentation requirements into State’s training courses for consular officers could help State better ensure that consular officers are aware of the requirements so that they can be better positioned to more consistently document the disclosure of IMBRA information during interviews with K visa applicants.

DHS and State Have Not Referred Any Potential IMBRA Violations to DOJ

Under IMBRA, DOJ is responsible for pursuing federal civil and criminal penalties outlined in the law for IMBs and petitioners who violate IMBRA provisions and for consulting with DHS and State in investigating and prosecuting such violations. However, DHS and State have not identified any potential IMBRA violations for referral to DOJ. As it has not received any referrals of IMBRA violations, DOJ has not brought civil or criminal cases against an IMB or petitioner under IMBRA.

USCIS requests information on the I-129F petition regarding whether petitioners used an IMB and, if so, requests a copy of the signed consent form the IMB obtained from the beneficiary authorizing the release of contact information. However, USCIS officials at each of the four service centers we interviewed stated that, in their experience, few petitioners indicate the use of IMBs to facilitate relationships with their foreign fiancé(e)s, and accordingly, the agency has not referred cases to DOJ for further investigation and prosecution. In addition, DHS has a process for referring and investigating potential violations within the department; however, USCIS has not identified any potential violation for referral and investigation.

In accordance with the FAM and consistent with IMBRA, if an IMB does not provide the required IMBRA disclosures to the beneficiary, consular officers are to note the lack of disclosure in IVO and refer the case to State’s Consular Affairs Bureau at headquarters for further review. Consular Affairs officials in headquarters are responsible for forwarding cases involving potential IMBRA violations to DOJ. Consular officers at all five consular posts we interviewed stated that they have not referred cases involving violations by IMBs for review because beneficiaries generally do not disclose the use of IMBs during the visa applicant interviews.

In July 2013, DOJ reported to Congress on the status of DOJ, DHS, and State’s efforts to develop processes to effectively identify, investigate, and prosecute potential IMBRA violations. DOJ reported that it does not have sufficient information about the nature and potential volume of IMBRA violations necessary to develop a framework for prosecution. DOJ’s report outlined a number of actions each agency could address to more fully develop policies and procedures for identifying, investigating, and prosecuting IMBRA violations, such as developing mechanisms to better facilitate the sharing of IMBRA-related case notes among the agencies. DHS and State officials told us that they are coordinating with DOJ on ways to facilitate data collection and information sharing and that it is too early to determine when these actions may be completed. DOJ officials stated that the agency-specific actions will better position DHS and State to identify cases warranting investigation and prosecution by DOJ. For instance, as previously mentioned, DOJ proposed that USCIS consider revising the I-129F petition to include a question for petitioners about civil protective or restraining orders consistent with IMB disclosure requirements under IMBRA. In addition, DOJ proposed that State establish a mechanism for sharing IMBRA-related case notes from beneficiary interviews with USCIS and DOJ. Moreover, DOJ is working with State on the development of a checklist of questions for consular officers to ask beneficiaries to assist in the identification of potential cases involving IMBRA violations by IMBs. In October 2014, DOJ issued an IMBRA bulletin to assist stakeholders, such as state and local law enforcement entities and women’s and immigrants’ rights organizations, in identifying and reporting IMBRA violations to DOJ for prosecution.

USCIS Does Not Collect and Maintain All Data in a Manner Consistent with IMBRA, and Additional Training Could Help to Ensure IMBRA Data Are Accurate and Reliable

USCIS Does Not Collect and Maintain All Data Consistent with IMBRA

IMBRA mandates that DHS collect and maintain data necessary for us to review IMBRA’s impact on the process for granting K nonimmigrant visas. In 2008, we reported that while USCIS had collected some data necessary for our study, most of the eight data elements identified by IMBRA and on which we reported were not maintained in a summary or reportable (i.e., electronic) format. For this report, we reexamined these eight data elements, which include information on the number of waiver applications submitted and I-129F petitions denied, and the reasons for the decisions. We found that data for two of the eight required elements are available, at least partially, in an electronic format in CLAIMS 3 and reliable for our purposes. The remaining six elements were either not collected and maintained electronically or the electronic data collected are not reliable. For example, consistent with IMBRA, USCIS is to collect and maintain information annually on the number of IMBRA waivers (general, criminal, or mandatory) submitted, the number granted or denied, and reasons for such decisions, but this information is not collected and maintained electronically. Rather, USCIS collects and maintains information on whether a waiver is required (rather than submitted), and the reasons for their decisions are handwritten by the officer on the hard copy of the petition and thus were not readily available for purposes of our review. Table 1 identifies the eight data elements specified by IMBRA and the extent to which USCIS collects and maintains reliable electronic data.

USCIS has taken or is planning to take steps to better collect and maintain data from petitioners in an electronic format. For example, in 2008, we reported that USCIS was considering modifying its system to electronically collect and maintain the required data, and in 2012, USCIS updated CLAIMS 3 to address selected IMBRA requirements. Specifically, USCIS updated CLAIMS 3 to include a field for officers to note the number of I-129F petitions previously filed by the current petitioner, as well as a field to denote whether petitioners require any of the three IMBRA waivers, although these updates do not specifically address the IMBRA requirement that annual data on the number of waiver applications submitted, the number approved and denied, and reasons why the waivers were approved or denied be collected and maintained. These updates have helped USCIS collect and maintain additional data on I-129F petitions in an electronic format. However, USCIS did not update CLAIMS 3 to capture all of the data required by IMBRA, including the number of concurrent I-129F petitions filed by petitioners for other fiancé(e)s or spouses, or the extent to which petitioners have criminal convictions. USCIS officials stated that they did not include all elements in the 2012 system update because of resource constraints and to avoid rework in anticipation of the larger transition planned for all of USCIS’s immigration benefit processes. In 2006, USCIS embarked on its multiyear Transformation Program to transform its paper- based immigration benefits process to a system with electronic application filing, adjudication, and case management. As we reported in November 2011, USCIS envisions that once the Transformation Program is completed, new electronic adjudication capabilities will help improve agency operations and enable greater data sharing and management of information. USCIS expects the new system, the Electronic Immigration System (ELIS), to have features, for example, that will allow applicants to electronically view their benefit requests, or provide additional documentation. Once ELIS is implemented, officers are expected to have electronic access to applications, as well as relevant USCIS policies and procedures to aid in decision making, and to have electronic linkages with other agencies, such as State and DOJ, for data-sharing and security purposes.

According to USCIS Service Center Operations officials, the agency will be able to collect and maintain more complete data, in a manner consistent with IMBRA, through the deployment of the electronic I-129F petition in ELIS. However, USCIS has faced long-standing challenges in implementing ELIS, which raise questions about the extent to which its eventual deployment will position USCIS to collect and maintain more complete data. In particular, in November 2011, we reported on USCIS’s progress in implementing its Transformation Program and found that USCIS had not developed reliable or integrated schedules for the program, and as a result, USCIS could not reliably estimate when all phases of the Transformation Program would be complete. We recommended, among other things, that USCIS ensure its program schedules are developed in accordance with GAO’s best practices guidance. DHS concurred with our recommendations and outlined actions USCIS would take to implement them, including developing an integrated master schedule to depict the multiple tasks, implementation activities, and interrelationships needed to successfully develop and deploy the Transformation Program. Since our November 2011 report, the Transformation Program schedule has encountered further delays. The 2008 Acquisition Program Baseline for the program showed that ELIS would be fully deployed by 2013; however, in July 2014, the Director of USCIS testified that full deployment was expected to be completed by 2018 or 2019.the I-129F petition would be deployed in ELIS.

GAO/AIMD-00-21-3.1. purposes, or DOJ for investigating potential IMBRA violations once the Transformation Program is complete.

Additional Training on IMBRA Requirements Could Help Ensure Consistent Adjudication and Reliable Data

USCIS officers have not consistently adjudicated I-129F petitions or entered complete and accurate data into CLAIMS 3. On the basis of our review of CLAIMS 3 data, and interviews with USCIS Service Center Operations officials and USCIS officers at all four service centers, we identified errors related to the IMBRA data that USCIS has maintained since 2012 (see table 1). Specifically, our analysis indicates that USCIS’s data are not reliable for determining (1) the number of I-129F petitions filed by persons who have previously filed I-129F petitions (or multiple filers), or (2) the number of IMBRA waivers required.

The May 2014 revisions also highlighted that the multiple filer field in CLAIMS 3 should include the total number of K-1 and K-3 I-129Fs filed by the petitioner. The August 2013 SOP did not specify the type of I-129F (K-1 versus K-3) to include in determining the number of prior petitions. officers were counting both K-1 and K-3 I-129F petitions in total for the multiple filer field, or only the number of K-1 I-129F petitions. The May 2014 revision to the SOP emphasized that I-129F petitions for K-3 visas are not to be included in determining whether a waiver is required. However, at one service center we visited, officers we spoke to stated that they had been uncertain about whether both types of I-129F petitions should be considered for the waiver requirements. Accurate and complete data in the multiple filer field are important for identifying potential abuse by petitioners who file multiple I-129F petitions, and for officers to indicate when a beneficiary should be notified of multiple filings, according to USCIS officials.

Data on IMBRA waivers. We found instances of errors and inconsistencies related to USCIS data on whether petitioners were subject to IMBRA’s filing limits and required one of the three waivers. Specifically:

According to IMBRA and the June 2014 SOP, petitioners may be required to request one of three waivers, and the waiver requirements are based, in part, on the number of I-129F petitions filed for K-1 visas only (petitions for K-3 visas are not to be included). We reviewed USCIS data on 227 I-129Fs filed from October 1, 2012, through March 31, 2014, for which the record in CLAIMS 3 indicated that a criminal waiver was required. We found that 18 of those 227 I-129F petitions were for K-3 visas. USCIS Service Center Operations acknowledged that these entries in CLAIMS 3 were incorrect and that these errors raise questions about the reliability of the CLAIMS 3 data and officers’ understanding of standard operating procedures and IMBRA requirements.

According to the June 2014 I-129F SOP, USCIS officers are to indicate in CLAIMS 3 whether a petitioner is required to have one of the three filing limits waivers. Officers are required to note a “Y” in one of three data fields if a waiver is required, or “N” if the waiver is not required. Consistent with IMBRA, only one waiver could apply per petition. However, on the basis of our analysis of CLAIMS 3 data, we found I-129F petitions for which officers incorrectly determined that more than one waiver was required. Specifically, of the 227 I-129F petitions we reviewed, 11 indicated that both a general and a criminal waiver were required, 14 indicated that both a criminal wavier and a mandatory waiver were required, and 15 indicated that petitioners required all three waivers. USCIS Service Center Operations officials attributed the multiple waiver determinations to officers’ errors. USCIS officers we interviewed at one service center stated that they were uncertain about the requirements for the waivers in part because the majority of petitions they adjudicate each year do not require any waivers. The August 2013 SOP did not specifically contain guidance to officers that a petitioner could receive only one waiver, if appropriate. In June 2014, during the course of our audit work, USCIS updated the I-129F SOP to clarify the filing limits and waiver requirements and now explicitly states that only one waiver selection per I-129F petition should be marked in CLAIMS 3, as applicable. While this revision to the SOP is a positive step, additional training could better position USCIS officers to be aware of petitioners’ potential filing limits and IMBRA waiver requirements, and USCIS officials stated that such training could be provided to help ensure officers understand the IMBRA requirements.

Consistent with IMBRA and the June 2014 I-129F SOP, a criminal waiver is required for multiple filers who have been convicted of an IMBRA-specified offense. However, our analysis of USCIS’s data indicates that officers have required criminal waivers for petitioners with no prior I-129F petition filings. Specifically, of the 227 I-129F petitions filed between March 2012 and March 2014 for which officers had indicated that a criminal waiver was required, 207 did not meet the criteria requiring a criminal waiver because the petitioner had not filed any previous petitions. USCIS officials said that officers were likely confused regarding when a criminal waiver was required and speculated that officers may be erring on the side of caution and requiring a criminal waiver and additional documentation from the petitioner in any instance of prior criminal convictions. For example, an officer at one service center we visited stated that he sends the petitioner a request for evidence for a criminal waiver if there is a criminal history, regardless of how many I-129F petitions have been filed. Ensuring that officers have a clear understanding of waiver requirements in the SOP could help better position USCIS officers to make USCIS adjudications more consistent with IMBRA requirements.

Consistent with IMBRA and the June 2014 I-129F SOP, I-129F petitions for K-3 visas are not subject to IMBRA waiver requirements. However, USCIS officers have historically (prior to December 8, 2013) not been required to indicate in CLAIMS 3 whether the I-129F petition is in support of a K visa for a fiancé(e), or spouse. We found that about 72 percent of the I-129F petitions submitted from fiscal years 2008 through March 2014 (238,288 of the 329,307) did not indicate whether the I-129F petition was for a K-1 or K-3 visa. USCIS officials stated that this was a technical issue that was likely overlooked during the system change in 2008. USCIS officials indicated that beginning in December 2013, officers could not approve an I-129F in CLAIMS 3 without noting which of the K visas the I-129F supports. Knowledge of whether the I-129F petition is for a K-1 or K-3 beneficiary is important because it is a key factor in determining whether a waiver is required, according to USCIS officials. While USCIS officers can review the hard copy I-129F petition to determine if it is an I-129F petition for a K- 1 or K-3 beneficiary, this information would not be readily available for internal control purposes of ensuring I-129F petitions are adjudicated according to the SOP and consistent with IMBRA.

According to USCIS Service Center Operations officials, USCIS performs annual quality assurance reviews of I-129F petitions. USCIS’s Quality Management Branch establishes the direction for the development and administration of the quality assurance program, training, communication, and coaching, and each service center has a quality manager and personnel who ensure administration of the quality assurance program within each center. Annual reviews include 3 months of submissions, reviewed for adherence to USCIS procedures for petition approval, denial, and requests for evidence. In 2014, USCIS’s quality assurance reviews of selected I-129F petitions identified inconsistencies in their adjudication. For example, USCIS conducted a review on a random sample of I-129F petitions approved at the Texas Service Center in April 2014 (63 out of 796 total approved I-129F petitions). This quality assurance reviewer found that 9 out of the 63 approved I-129F petitions did not indicate for State’s consular officers, as required by USCIS’s procedures, whether IMBRA disclosures applied. Consular officers we spoke to at one post stated that they were providing information to beneficiaries only if USCIS officers clearly indicated on the approved I- 129F petition that IMBRA requirements applied. The consular officers stated that if USCIS officers did not clearly notate the approved I-129F petitions, they returned the approved I-129F petition to USCIS. USCIS officials attribute the errors in CLAIMS 3 data to officer error and misunderstanding of the SOPs regarding IMBRA implementation. In response to these reviews and our audit work, Service Center Operations officials stated that, among other things, they revised the I-129F SOP in May 2014 and again in June 2014. In particular, the May 2014 revision to the I-129F SOP was intended to clarify, among other things, the IMBRA filing limits, waiver requirements, and notations indicating whether IMBRA disclosures apply. In June 2014, USCIS again revised the procedures to further clarify the waiver requirements. To disseminate SOP revisions, a Service Center Operations official stated that the revised SOP is e-mailed to a point of contact in each service, with the revisions highlighted in the SOP and e-mail. The official said that the point of contact generally distributes the revised SOP to officers via e-mail, and will meet with staff to discuss changes, if necessary.

While these are positive steps, additional training could help provide USCIS with more reasonable assurance that its officers are aware of IMBRA requirements to assist them in reviewing and maintaining data on petitions consistent with USCIS’s procedures. As previously discussed, our analysis of CLAIMS 3 data showed that USCIS officers have not entered information into CLAIMS 3 consistent with USCIS’s SOPs. USCIS Service Center Operations officials attributed the errors we identified in the CLAIMS 3 data to officers’ misunderstandings of the required procedures. Service Center Operations officials said in August 2014 that they had no plans to require the service centers to provide additional training to officers on revisions made to the SOP, as USCIS officials stated that officers receive initial training when they are hired and on an ad hoc basis at the service centers, as necessary. USCIS Service Center Operations does not require service centers to conduct additional training for incumbent officers based on revisions to its SOPs to ensure that changes are understood. Rather, these officials stated that service centers determine when officers need additional training, which they may provide to officers in the form of e-mails, briefings, or formal classroom lessons. Standards for Internal Control in the Federal Government maintains that federal agencies are to provide staff with the training necessary to carry out assigned responsibilities and meet the organizations’ objectives. Moreover, in our guide for assessing strategic training and development efforts, we have reported that training is essential to developing the knowledge and skills needed to administer agency programs properly. Given that the SOP has been revised three times in less than 1 year and officers have not maintained data in CLAIMS 3 consistent with the SOP, additional training for officers could help USCIS better ensure its officers understand changes made to the SOPs and collect and maintain reliable data on I-129F petitions as required by USCIS’s SOP and consistent with IMBRA.

Conclusions

In accordance with IMBRA, USCIS has been charged with mitigating the risk posed to beneficiaries by violent or abusive petitioners by ensuring, to the extent practicable, that petitioners disclose complete information, including their filing history and criminal conviction information, on the I- 129F petition. USCIS has been revising the I-129F petition to address inaccuracies and deficiencies for more than 10 months and has not set a time frame for the planned completion of these changes. A time frame for completion would help the agency better monitor progress toward finalizing revisions to the petition. In addition, State could take additional actions to ensure that its consular officers document that the IMBRA pamphlet is provided and understood by the beneficiary, as internal State guidance requires, by revising its curriculum to include training on the FAM’s IMBRA-related documentation requirements. By incorporating IMBRA-related documentation requirements in its training curricula, State could also better provide reasonable assurance that its officers are aware of the required procedures and are better positioned to inform beneficiaries so they know their legal rights.

Although IMBRA was enacted in January 2006, USCIS does not yet collect and maintain all data in a manner consistent with IMBRA. Ensuring the data are available electronically would allow for more complete reporting on IMBRA implementation, and also help USCIS management to better ensure that I-129F petitions are being adjudicated in accordance with IMBRA. USCIS has begun the process of transforming the I-129F petition to an electronic format; however, it is uncertain what data will be maintained in ELIS, based on the agency’s draft user stories to identify data requirements, and based on prior USCIS efforts that did not fully capture data in an electronic format consistent with IMBRA. Taking steps to ensure that all data to be collected in accordance with IMBRA are included with the release of the electronic I-129F petition, and providing additional training, could help USCIS better ensure that IMBRA requirements are properly implemented and that data on petitions are collected and maintained consistent with USCIS procedures.

Recommendations for Executive Action

We are making four recommendations to improve the implementation of IMBRA.

To better ensure the consistent application of IMBRA waiver requirements and adjudication of I-129F petitions, we recommend that the Director of USCIS set a target time frame for completing the agency’s review of revisions to the I-129F petition.

To ensure that fiancé(e)s and spouses applying for K visas receive and understand the information to be provided to them under IMBRA and that consular officers adhere to documentation guidance in the FAM, we recommend that the Secretary of State incorporate the FAM’s IMBRA- related documentation requirements into the Foreign Service Institute’s training curriculum for entry-level and midlevel consular officers.

To ensure data required by IMBRA are collected, maintained, and reliable, we recommend that the Director of USCIS take the following two actions: ensure that IMBRA-required data elements will be collected in an automated manner with the release of the electronic I-129F petition, and provide additional training to officers who adjudicate I-129F petitions on the IMBRA-related requirements in the adjudication process.

Agency Comments and Our Evaluation

We provided a draft of this report to the Secretaries of Homeland Security and State, and the Attorney General. DHS and State provided written responses, which are reproduced in full in appendixes III and IV, respectively. DHS concurred with our three recommendations to that agency and described actions under way or planned to address them. With regard to our first recommendation to DHS that USCIS set a target time frame for completing the agency’s review and revisions to the I-129F petition, DHS concurred and stated that USCIS has drafted the revised Form 129F and instructions and plans to distribute them for internal review in December 2014. DHS stated that once the internal review is completed, the revised form and instructions will undergo a public comment period and the I-129F standard operating procedures will be updated. DHS estimated a completion date of September 30, 2015. With regard to our second recommendation to DHS that USCIS ensure that IMBRA-required data elements will be collected in an automated manner with the release of the electronic I-129F petition, DHS concurred and stated that USCIS will identify all data that will be collected and estimated a completion date of December 31, 2016. With regard to our third recommendation to DHS that USCIS provide additional training to officers who adjudicate I-129F petitions on the IMBRA-related requirements in the adjudication process, DHS concurred and stated that USCIS has developed a training presentation for officers on IMBRA-related requirements and that all officers adjudicating the I-129F will be required to complete the course by the end of January 2015. These actions should address the intent of our recommendations. In addition, State concurred with our recommendation that State incorporate the FAM’s IMBRA-related documentation requirements in the Foreign Service Institute’s training curriculum for entry-level and midlevel consular officers. State noted that additional IMBRA-related training would be provided to entry-level and midlevel consular officers. Specifically, State indicated that the Foreign Service Institute’s 6-week mandatory training for entry-level consular adjudicators, and two courses for midlevel consular officers would be expanded to explicitly emphasize IMBRA-related requirements. When implemented, these steps should help ensure that K visa beneficiaries receive and understand information available to them under IMBRA. Technical comments provided by DHS, State, and DOJ were incorporated, as appropriate.

We are sending copies of this report to the Secretaries of Homeland Security and State, the Attorney General, and appropriate congressional committees. In addition, the report is available at no charge on the GAO website at http://www.gao.gov.

If you or your staff have any questions concerning this report, please contact me at (202) 512-8777 or gamblerr@gao.gov. Contact points for our Offices of Congressional Relations and Public Affairs may be found on the last page of this report. GAO staff who made significant contributions to this report are listed in appendix IV.

Appendix I: I-129F Petition for Alien Fiancé(e), as of December 10, 2014

Appendix II: International Marriage Broker Regulation Act Information Pamphlet for K-Visa Applicants

Appendix III: Comments from the Department of Homeland Security

Appendix IV: Comments from the Department of State

Appendix V: GAO Contact and Staff Acknowledgments

GAO Contact

Staff Acknowledgments

In addition to the contact named above, Kathryn Bernet (Assistant Director), Frances Cook, Monica Kelly, Connor Kincaid, Stanley Kostlya, Thomas Lombardi, Linda S. Miller, Jessica Orr, Michelle Woods, and Jim Ungavarsky made significant contributions to this work.