Immigrants coming from abroad to get married to U.S. citizens (or lawful permanent residents) or to join with a spouse in the United States. are in a potentially vulnerable position. They might not speak English and are likely unfamiliar with U.S. laws and cultural norms. They therefore might not understand the risks of, or remedies for, violence or cruelty carried out by a U.S. spouse.
That is part of why Congress passed various amendments to U.S. immigration laws, in particular the International Marriage Broker Regulation (IMBRA; I.N.A. § 214(d)(1), 8 U.S.C. § 1184(d)(1)) and the Adam Walsh Child Protection and Safety Act of 2006 (AWA; I.N.A. §§ 204(a)(1)(A)(viii)(I) and (a)(1)(B)(i)(II); 8 U.S.C. §§1154(a)(1)(A)(viii)(I) and (a)(1)(B)(i)(II).).
This article will discuss how these portions of the law affect a U.S. petitioner's ability to petition for an immigrant fiancé or spouse to receive lawful U.S. residence.
How IMBRA Limits Petitioning for a Fiancé
Under the IMBRA, a U.S. citizen who petitions for a foreign national to receive either a fiancé(e) (K-1) nonimmigrant fiancé visa or a K-3 fiancé visa (which is used rarely, but allows married couples to split the application process into two parts, one overseas and one in the United States) must take extra steps to show a record that is clean of domestic violence and related crimes.
In filling out the initial form to petition someone for a K-1 fiancé visa (Form I-129F, issued by U.S. Citizenship and Immigration Services or USCIS), the U.S. citizen must include information concerning any criminal convictions for domestic violence, sexual assault, child abuse and neglect, dating violence, elder abuse, stalking, and various other crimes that involve violence, abusive sexual contact, sexual exploitation, false imprisonment, and so on.
In addition, USCIS runs security checks on all U.S. petitioners and may call the petitioner in for fingerprinting. It will have the results checked against FBI and various other databases to uncover any criminal record.
A U.S. petitioner with a record of having been convicted of any of the crimes specified in IMBRA will need to provide USCIS with certified copies of all court and police records showing the charges that were filed and the eventual case dispositions.
If USCIS goes ahead and approves the initial K-1 or K-3 visa petition, it will forward the case to the U.S. Department of State for further processing and a visa interview with the foreign-born beneficiary. At the visa interview, the U.S. consular officer will disclose information about the petitioner's criminal record to the beneficiary.
This by itself doesn't create any outright bar to immigrating. The foreign-born fiancé could decide to go ahead with the wedding regardless of the information.
There is one situation, however, in which the U.S. petitioner could be entirely barred from petition approval. If the U.S. citizen has already petitioned for two or more foreign fiancés at any time in the past, or received USCIS approval of a K-1 petition within two years before filing the most recent petition, USCIS cannot legally approve the K-1 petition. This bar can be overcome by applying for a waiver (legal forgiveness); but not if the petitioner has a history of violent criminal offenses, with rare exceptions.
IMBRA's provisions affect only fiancé visa applications; this law does not apply to a U.S. citizen who seeks permanent residence for a spouse through the I-130 petition process.
How AWA Limits U.S. Petitioning for Immigrants
Under the Adam Walsh Act, U.S. citizens and lawful permanent residents with certain criminal convictions against a minor (a young person) cannot file a family-based petition on behalf of any beneficiary, including a fiancé or spouse.
The only exception is if the U.S. government finds that the U.S. petitioner presents “no risk” to the proposed beneficiary of the K-1 visa petition.
There is a long list of criminal offenses that would make a U.S. petitioner ineligible to petition for family under this law, most of which have to do with sex offenses, kidnapping, or false imprisonment of a non-family member. Thus they're not entirely relevant if the petitioner's only conviction is for domestic violence; but they are worth bearing in mind, or getting an attorney's opinion on, nonetheless.
Again, USCIS will ask the U.S. petitioner about criminal history and run security checks to turn up information about past run-ins with law enforcement.
Consult an Immigration Attorney for More Information
The overlay of criminal and immigration law makes for unusual complexity. If you have questions on these matters, you'd do best to consult with an experienced immigration attorney.