Serial fiancée visa petitioners now face legal hurdles

by Atty. Emmanuel Samonte Tipon

There is a story about an Ilocano who would go back to the Philippines, meet a young woman, come back to Hawaii, petition for her as a fiancée, and when she arrived he would marry her, go on a honeymoon, and later divorce her. He did it at least three times. Whether he was having fun or was a victim of failed marriages, we have not been able to ascertain.

This is the kind of behavior or misbehavior that the International Marriage Broker Regulation Act (IMBRA) wants to stop. This Act (codified at 8 USC 1375a) amends INA 214(d) and 214(r) and was signed by the President on January 5, 2006. It imposes limitations on the number of fiancé/fiancée petitions (K-1) that a U.S. citizen can file or can obtain approval for. If a petitioner has filed two or more fiancé/fiancée visa petitions at any time in the past, or has previously obtained approval of K-1 visa petition within two years prior to the filing of the new petition, the petitioner must apply for a waiver. These regulations are not applicable to petitioners for a nonimmigrant fiancé/fiancée visa for a spouse (K-3). USCIS is required by IMBRA to establish and maintain a multiple K-1 visa petition tracking database. USCIS will notify the petitioner and beneficiary of the number of previously approved K-1 visa petitions.

Ordinarily, the petitioner is expected to know the limitations and if he/she has exceeded them. Consequently, he must file the request for waiver with the K-1 visa petition. Oftentimes, the petitioner does not know about these limitations. So when the petitioner files a fiancée visa petition that exceeds the limitations, USCIS will send the petitioner a Notice of Intent to Deny (NOID), unless the petitioner requests a waiver and can establish eligibility for a waiver.

WAIVER REQUEST

The waiver request consists of a letter, signed and dated by the petitioner, explaining in detail what happened to the previous petitions and the beneficiaries and why a waiver would be appropriate in the petitioner’s particular circumstances.  The letter must be accompanied by evidence to support the waiver request. The kind of supporting evidence will vary with the circumstances.  

For example, if the previous fiancée died, the death certificate should be submitted. If there was a divorce, the divorce decree should be submitted. If the previous fiancée became incapacitated, medical records should be submitted. If the beneficiary did not apply for a visa and come to the United States, documentary evidence of such fact should be submitted. Police records or clearances to show that the petitioner has not committed any offense, especially domestic violence, should be submitted. Having a conviction for domestic violence may not necessarily be fatal to the waiver request. The offender should explain the circumstances that led to the domestic violence and whether he has been rehabilitated and gone to anger management classes. Letters of support from friends, relatives, employers, and co-workers attesting to the good character of the petitioner are helpful – the more the better.

UNLUCKY IN LOVE

In one case where a petitioner had exceeded the IMBRA limitations, we used the “unlucky in love” strategy to help the petitioner.  The petitioner claimed that he was acting in good faith all the time in his previous fiancée visa petitions but was simply “unlucky in love” and that he was a victim of unscrupulous women who used him to come to the United States.  He said that one former fiancée whom he married refused to consummate their marriage. To bolster the claim, we suggested that he write to the Department of Homeland Security to deport the former fiancée.  He stated in his waiver request that he believed this new fiancée whom he was petitioning is the right one, and explained why. He wrote a declaration that he had not been arrested for any of the specific offenses that IMBRA condemns. He also got a letter duly notarized from the new fiancée that she would marry the petitioner within the 90-day period and fulfill her marital obligations. Of course, they had pictures galore showing their various trips, dates, and meetings with friends and relatives of the alien fiancée.  The waiver request was approved.

USCIS adjudicators have sole discretion to approve the waiver request. So, petitioners should write convincing and sincere waiver requests with a plethora of supporting evidence if they want successful results.

(Atty. Tipon has a Master of Laws degree from Yale Law School and a Bachelor of Laws degree from the University of the Philippines. He specializes in immigration law and criminal defense. Office: 800 Bethel St., Suite 402, Honolulu, HI 96813. Tel. (808) 225-2645. E-Mail: filamlaw@yahoo.com. Websites: www.MilitaryandCriminalLaw.com, and www.ImmigrationServicesUSA.com. He is from Laoag City and Magsingal, Ilocos Sur. He served as an Immigration Officer. He is co-author of “Immigration Law Service, 1st ed.,” an 8-volume practice guide for immigration officers and lawyers. Listen to the most witty, interesting, and informative radio program in Hawaii on KNDI at 1270, AM dial every Thursday at 7:30 a.m., rebroadcast at  www.iluko.com. This article is a general overview of the subject matter discussed and is not intended as legal advice. No warranty is made by the writer or publisher as to its completeness or correctness at the time of publication.)