Recent Changes to K Visa Law

On January 4, 2006, the U.S. Congress passed the Violence Against Women and Department of Justice Reauthorization Act of 2005 ("Act"). President Bush signed the Act the next day. The Act goes into effect 60 days after the date of the enactment of the Act.

The Act includes provisions that place onerous new obligations on "International Marriage Brokers" ("IMBs") to collect substantial amounts of background information on U.S. citizen and resident alien clients and disseminate this information to its foreign clients before any of the personal contact information of these foreign clients may be released to the U.S. client.

Additional information must be provided by the IMB to ensure that the foreign national is aware of his/her (for simplicity's sake, we will adopt the female gender henceforth or the beneficiary, and the female for the petitioner) immigrant rights in the U.S. and her ability to defend herself against domestic abuse.

At the consular level, all K-1 visa beneficiaries will be asked during the visa interview whether they became acquainted with their U.S. citizen fiancé(e) through an IMB, and if so, whether the IMB complied with the various disclosure obligations of the Act. In addition, there are new provisions in the Act which limit the ability of U.S. petitioners to file multiple K-1 visa applications.

Currently, one of the major IMBs has been successful in obtaining an injunction against the implementation of the new regulations. Trial was held in April 2006. Pending the ruling of the judge, an injunction is in place. However, a ruling is expected by August that will determine how much of the new regulations will be in place.

K Visa Interview Changes

The U.S. consul must ask the fiancé(e) during the Embassy/Consulate interview whether the IMB facilitated the couple's relationship, and if so, the consul must determine the name of the IMB, and confirm that the IMB acted in accordance with the new requirements regarding information gathering from the petitioner, disclosure to the alien fiance(e), as well as dissemination of the new USCIS pamphlet concerning immigrant rights.

The fiancé(e) will be asked in every instance whether she met her fiancée through a matchmaking site. If she replies untruthfully and is found out (a very real possibility), she will be denied the visa and barred from ever receiving a U.S. visa of any kind. Lying is not a good thing.

If she admits to the means of acquaintance, but can not convince the consular officer that the marriage agency provided her with the required disclosures, the visa will be refused, and at best the case will go into administrative review. The principal short-term question is how the consulates will treat K-1 visa beneficiaries who became acquainted before the law took effect. The answer to this question is unknown as yet, but may be answered by implementing regulations.

International Marriage Broker Defined

The definition of International Marriage Brokers in the Act covers virtually all for-profit matchmaking entities, whether U.S. based on not, whose main business is the facilitation of dating or like services between U.S. citizens and foreigners. The definition excludes matchmaking sites whose principal business in not providing dating services between U.S. residents and foreign clients and which charges the same fees for its services to all clients regardless of national origin of the client or the gender of the client.

International Marriage Broker Obligations

Before an IMB can release the personal contact information of a foreign client to a U.S. client, the IMB must:

A) Search the National Sex Offender Registry to determine the record of the U.S. citizen, and disclose any information found concerning the U.S. citizen to the foreign client .

B) Obtain a signed statement from the U.S. citizen revealing any current or past protection or restraining orders, most criminal arrests and convictions whether relevant or not, virtually all arrests or convictions for domestic violence, alcohol, drug, or sexual offenses, the U.S. client's complete marital history (including the reason for termination of any prior marriages), the ages of any of the U.S. citizen's children that are still under the age of 18, and a list of all States and counties that the U.S. citizen has lived in since the client was 18 years of age.

C) Distribute to the foreign national a pamphlet currently being developed by the U.S. government to educate foreign fiancé(e)s about U.S. domestic abuse laws and resources for immigrant victims in the U.S.

D) Obtain the foreign national's written consent to disclosing her personal contact information.

Restrictions on Multiple K Visas

The Act places two new major restrictions on multiple K-1 visas. For any US citizen that is filing for a third or more fiancee visa:

1) A petitioner must wait two years from the filing of a prior K-1 visa until a another K-1 visa may be issued. This would mean that the period of time of two years must elapse from the FILING of a petition to an INTERVIEW on a subsequent petition.

A petitioner is also barred from obtaining fiancé(e) visas for more than two foreign nationals unless a waiver based on a showing of "extreme hardship" is granted.

2) Persons with domestic violence convictions are not eligible.

In either case, marriage abroad is still open and NONE of this regulation applies to marriage cases although it would be applicable to a K3 visa. A database will be maintained by the Department of Homeland Security to track multiple fiancé(e) and spousal visa petitions.

Discussion

The new rules will have a substantial impact on K-1 petitioners who met through international marriage brokers. The main effect is on the IMBs, some of whom have a rather dubious reputation.

It should not affect petitioners who met though services like Yahoo! Personals which provide contact services with foreign nationals as an incidental part of their services. The regulations will have very little effect on persons without prior marriages, arrests or convictions. The new regulations will have no effect at all on those individuals who meet outside of international marriage agencies.