The International Marriage Broker Act and U Visas

Last week, as many of you know, VAWA was reauthorized (with no time to spare). What many of you may not know, however, is that the International Marriage Broker Act [pdf file] has been attached to VAWA. Some of you may remember that I first wrote about this Act back in 2003, when it was first introduced by Senator Maria Cantwell (D-WA) and Representative Rick Larsen (D-WA).

The IMBA will now help foreign brides (aka mail-order brides) gain a bit of control over their future. This law does not ban the existence of these mail-order bride agencies. What it does is help to ensure that such transactions will be somewhat safer for the women involved. In essence, the new law requires (from The National Immigration Project [pdf file]:

• Requires U.S. citizen filing K petitions to disclose criminal background information. Mandates that U.S. citizens filing K visa petitions disclose criminal background information to international marriage brokers and to DHS/CIS. Relevant crimes include domestic abuse crimes, other violent crimes, and multiple convictions for substance and/or alcohol abuse. DHS will be required to transmit this criminal history information, along with results of any database search, to the foreign fiance or spouse [Section 832(a)].
  
  
• Prevents abusive U.S. citizens from sponsoring multiple foreign fiances and/or spouses. DOS cannot issue a K visa (unless DHS grants a waiver or the domestic violence victim exception applies) if the U.S. citizen has previously filed two K visa petitions, and less than two years have passed since the date of filing of the most recent K visa petition. DHS can waive this bar, but not when the U.S. citizen has a history of committing domestic abuse or other violent crimes [Section 832].
  
  
• Government tracking of serial K visas. Creates government database to track serial K petitions filed by same U.S. citizen petitioner and to notify foreign fiance or spouse of prior K petitions. Notification requirement triggered after petitioner has filed three K petitions within the past 10 years [Section 832].
  
  
• Domestic abuse pamphlet to be distributed to all foreign fiances and spouses. DOS, DHS, and DOJ shall create pamphlet on domestic abuse laws and resources for immigrant victims in the U.S. The pamphlet must be sent to all foreign fiances and spouses. DHS shall also send results from any criminal background checks conducted in the course of adjudicating the K visa petition, along with the petitioner'’s disclosure of any criminal history. U.S. consular officers shall orally inform foreign fiances/spouses of the petitioner's criminal history. DOS and DHS cannot disclose locational or personal information about prior victims of the U.S. citizen petitioner.
  
  
• International Marriage Broker (IMB) Duties. IMBs are prohibited from sharing any information on minors with any person or entity. IMBs cannot give U.S. clients information on a foreign national until the IMBs have searched sex offender registries, collected criminal and family background information, provided background information to the foreign national, given the domestic abuse pamphlet, and received written consent from the foreign national to share her contact information. Violation of these requirements can result in civil penalty up to $25,000.

This law is most definitely a step in the right direction, and will certainly help prevent some of the more serious atrocities some of these foreign brides might otherwise experience. However, as I wrote in my previous post on this subject, it will not prevent or stop all abuse against foreign brides. Many men (and international marriage brokers) will, no doubt, find ways around the law. And, not all abusive men will necessarily have a criminal record. And, or course, some women may still believe his claims that he has changed, or that the charges were due to lies (after all, why should we believe that women from the former Soviet Union or SE Asia are all that different in their desire to believe men who say they love them than American women are?).

Fortunately, there are some other legal recourses that these women can access should the need arise. Immigrant women who are married to an American citizen and experience domestic violence in that marriage can self-petition for legal status through VAWA.

The enactment of VAWA in 1994 has helped thousands of immigrant women (not only mail-order brides) who were experiencing domestic violence. Unfortunately, there were still thousands more women who were not eligible to access these benefits. Women who were not married to their abusers and/or women whose abusers were not US citizens or Lawful Permanent Residents (LPRs) did not qualify for VAWA.

In 2000, it seemed as though there was hope for these women, though. That was the year the Victims of Trafficking and Violence Protection Act of 2000 created two new nonimmigrant visas for noncitizen victims of crimes.

T visas are available to individuals who are victims of "a severe form of trafficking in persons." This includes sex trafficking of persons under 18 years of age, or recruiting or obtaining persons for labor or services through the use of force, fraud, or coercion "for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery." Those who qualify for T visas may have nearly all grounds of inadmissibility may be waived, and can adjust to LPR status (Legal Permanent Resident)after three years. The original law stated that an applicant for a T visa willing to assist in every reasonable way in the investigation and prosecution of trafficking perpetrators (although neither actual cooperation nor even the existence of an investigation is required; the victim must merely show willingness to cooperate). However, the latest version of VAWA allows "trafficking victims whose physical or psychological trauma impedes their ability to cooperate with law enforcement to seek a waiver of this requirement." [Section 801(a)(3)].

U visas are available to immigrants who are either victims of or who possess information concerning one of the following forms of criminal activity: rape, torture, trafficking, incest, domestic violence, sexual assault, abusive sexual contact, prostitution, sexual exploitation, female genital mutilation, hostage holding, peonage, involuntary servitude, slave trade, kidnapping, abduction, unlawful criminal restraint, false imprisonment, blackmail, extortion, manslaughter, murder, felonious assault, witness tampering, obstruction of justice, perjury, or attempt, conspiracy, or solicitation to commit one of these offenses. The applicant does not have to be married or related to the person committing or soliciting the crime.

However, in the 5 years since The Victims of Trafficking and Violence Act was passed (and U visas were created), the US Citizenship and Immigration Service (CIS, formerly known as INS) has yet to publish regulations governing these visas. Which means that no one can actually apply (let alone receive) a U visa yet. CIS has implemented U visa interim relief, which allows an immigrant crime victim to be granted temporary legal status for one year (applicants can reapply on a yearly basis until the regulations have been published, although, there is no guarantee that their applications will be accepted every year).

In October 2005, lawyers for the Center for Human Rights and Constitutional Law in Los Angeles filed a federal lawsuit in October on behalf of nine illegal immigrants who were victims of violent crimes, demanding that regulations for the U visas be put in place.

"It was filed because the U.S. Citizenship and Immigration Services is failing to provide victims of crime and people who are cooperating with law enforcement investigations with the immigration benefits Congress five years ago said they should have," Carlos Holguin, general counsel for the center, said of the lawsuit.

"What they give is deferred action, a work permit which is not the same as a U visa, which leads to permanent status," he said. "We've yet to get an explanation as to why they've failed to implement a law that's 5 years old.

Things are getting better for immigrant women who are victims of domestic violence. But there's still a long way to go.