IMBRA Restrictions

[1HappyGuy 45]

I have a friend that just stopped his K-1 visa application. He was afraid that this was going to be counted against him from further applications. He hasn't been too successful regarding finding a mate and the latest was probably the worst. But, the big question for everyone is an interpretation of the IMBRA law as it pertains to applications.

His attorney reads this law as you are allowed two approved applications in your lifetime. I have reviewed the law as written and can't find where he comes to this conclusion. I know that if you have had two successful applications and they have been within two years, then the consular (in the foreign country) can deny you another approval. But the way I read this, if the two years have passed since your first of two approvals, then you get to file another one.

It seems that this restrictive interpretation would at least be unconstitutional if nothing else.

I'm wondering if anyone else has heard of this interpretation or has one that is similar to mine. This can be an important point for someone that has been searching but not found that right person. We all know that all kinds of circumstances can cause a fiancee to decide they don't want to marry and live in America. But, a lifetime exclusion because of two approvals doesn't seem right to me.

What do you think?

[Mew 0]

http://www.uscis.gov/graphics/lawsregs/han...IMBRA072106.pdf - see filing limitations.

[Yodrak 7]

1HappyGuy,

I think,

- prior petitions need not have been "successful", and

- I see the word 'waiver'.

Yodrak

I have a friend that just stopped his K-1 visa application. He was afraid that this was going to be counted against him from further applications. He hasn't been too successful regarding finding a mate and the latest was probably the worst. But, the big question for everyone is an interpretation of the IMBRA law as it pertains to applications.

His attorney reads this law as you are allowed two approved applications in your lifetime. I have reviewed the law as written and can't find where he comes to this conclusion. I know that if you have had two successful applications and they have been within two years, then the consular (in the foreign country) can deny you another approval. But the way I read this, if the two years have passed since your first of two approvals, then you get to file another one.

It seems that this restrictive interpretation would at least be unconstitutional if nothing else.

I'm wondering if anyone else has heard of this interpretation or has one that is similar to mine. This can be an important point for someone that has been searching but not found that right person. We all know that all kinds of circumstances can cause a fiancee to decide they don't want to marry and live in America. But, a lifetime exclusion because of two approvals doesn't seem right to me.

What do you think?

[1HappyGuy 45]

Thank MEW,

It appears that the regulations contradict the wording in the law. This can be significant since the memorandum states under the filing limitations "If the petitioner has filed two or more K-1 visa petitions at any time in the past, or previously had a K-1 visa petition approved within two years prior to the filing of the current petition, the petitioner must request a waiver."

It might not seem like much, "and versus or", but the legal interpretation is quite different. In the writing of the law it appears that both conditions must be met inorder for a person to be deniable. The memorandum makes it clear that a waiver must be applied for and the versions of acceptable waivers are specific towards people with criminal activity in their lives mostly. There is also a requirement for tracking of multiple petitioners with a 10 year period for more than three petitions.

Most of us hope that one or two petitions is all we will ever need but there are times when the process itself causes the petitioners to draw apart. We've all seen the stress caused by the slow processing and just downright frustating waiting. This law was not written by anyone knowledgeable about the process but more by someone trying to build political capital. It will take someone pursuing a legal test of these regulations to clear it up.

I hope everyone will be clear on the implications.

[Mew 0]

It might not seem like much, "and versus or", but the legal interpretation is quite different. In the writing of the law it appears that both conditions must be met inorder for a person to be deniable. The memorandum makes it clear that a waiver must be applied for and the versions of acceptable waivers are specific towards people with criminal activity in their lives mostly. There is also a requirement for tracking of multiple petitioners with a 10 year period for more than three petitions.

Although the document I linked you to brings scenarios of people who have had petitioned before/had a petition approved + criminal "background", I think these are separate issues. They have combined them in those instructions so more complicated scenarios would be there. In any case, that is just a general guidance to USCIS.

[PurrSuede 0]

It might not seem like much, "and versus or", but the legal interpretation is quite different. In the writing of the law it appears that both conditions must be met inorder for a person to be deniable. The memorandum makes it clear that a waiver must be applied for and the versions of acceptable waivers are specific towards people with criminal activity in their lives mostly. There is also a requirement for tracking of multiple petitioners with a 10 year period for more than three petitions.

Although the document I linked you to brings scenarios of people who have had petitioned before/had a petition approved + criminal "background", I think these are separate issues. They have combined them in those instructions so more complicated scenarios would be there. In any case, that is just a general guidance to USCIS.

This topic is of some importance to me because if I do go the K-1 route (again), it would be my 3rd.

I had a fiancee approved in 2002, but she never went to the interview, and I withdrew the petition voluntarily.

Strike One, although there was no visa granted, the IMBRA rules would appear to apply to APPROVAL OF PETITION, not to "visa granted".

Then I had a K-1 with my ex-wife, it was approved in 2004 and a Visa was issued.

Yes, the word ex- denotes that the marriage is concluded. Strike Two.

So if I ever K-1 again, I would need to apply for a waiver.

What I get from reading this, is that IMBRA was part of the VAWA laws. So if you've had two previous K-1's or a single K-1 within the previous TWO years, you need to apply for a waiver and explain the situation.

IF there is criminal activity of a violent nature in the background of the waiver applicant, then the adjudicator is expected to DENY the waiver. If there is no history of violence or similar criminal charges but circumstances that "happen" beyond your control, they appear to be approving the waiver.

Other's here have filed for IMBRA waivers (because of number of K-1's) and had them granted, when there was NO criminal activity... see this thread:

http://www.visajourney.com/forums/index.php?showtopic=23625

So my take on all this is, under the VAWA laws, they are trying to prevent those who have abusive or violent pasts from bringing someone over, abusing her, then starting all over again...

The intent seems to be that if you have the violent background and have previous K-1's (numeric or time length) you will not get a waiver, you won't be able to do it again.

From the other thread I mentioned, it appears they will grant the waiver from the numeric or time limitations IF there is no criminal and/or violent history.

I also have to say my ex- tried to manufacture a DV charge against me. I had read about this "waiver" part of the law before she tried to do that, and there was no way on earth I was going to let her nonsense (or her possibly fraudulent attempt to get her conditions lifted) get me stuck with a DV charge. It was resolved as "police called on Domestic Disturbance call, no charges filed".

WHEW!

Of course, it's interesting that the interpretations also do not seem to apply to the K-3's, so I suppose if you have your waiver denied you could use that avenue... but from appearances it would seem that most people who do fall into the "needing a waiver" get approved as long as there is not a history of violence in their past. In my mind that stays consistent with the VAWA portions of the law under which I believe these rules were drafted....

But I am not a lawyer, nor do I work for the USCIS, the federal government, nor did I sleep at a Holiday Inn Express last night...

-- Dan

[1HappyGuy 45]

The issue of waivers is beginning to pop up now. I just checked the USCIS web site under the "What's New" area. So far the latest guidance regarding IMBRA is in July from Michael Aytes. He must be their legal counsel because he issues most of the guidelines.

I would say that just about any good reason will likely be accepted if it is true and honestly protrayed. Remember you are making a case for yourself and your intended spouse. So, be strong but not demanding. This area is so new for them that you have the possibility of creating the guidelines that they will use.

Continue to check for new issuances at the immigration site but make a good case for yourself. I'm sure at this point it is a case by case basis. Be very specific that the prior applications did not result in embassy interviews or what other reasons you had. Let's face it, sometimes the darn process causes one or the other to change their mind.

So, consider that your could be making new law with your waiver proposal and go for it.

[payxibka 10,044]

http://www.uscis.gov/graphics/lawsregs/han...IMBRA072106.pdf - see filing limitations.

So does the language "two or more" K-1's at anytime inclusive of the current filing (meaning on your second attempt) or is a waiver is required on the third one because the current one is not included in the incremental count. I filed an I129f petition in April 2004 but I formally withdrew the petition after receiving an RFE but before approval (she lied on her g-325a but that is another story all together).

So as I contemplate whether I need to request a waiver or not. Part of me says "yes" because this is my second and part of me says "no" because this filing is not included in the count...

Any other interpretations.....

[Mew 0]

http://www.uscis.gov/graphics/lawsregs/han...IMBRA072106.pdf - see filing limitations.

So does the language "two or more" K-1's at anytime inclusive of the current filing (meaning on your second attempt) or is a waiver is required on the third one because the current one is not included in the incremental count. I filed an I129f petition in April 2004 but I formally withdrew the petition after receiving an RFE but before approval (she lied on her g-325a but that is another story all together).

So as I contemplate whether I need to request a waiver or not. Part of me says "yes" because this is my second and part of me says "no" because this filing is not included in the count...

Any other interpretations.....

IMBRA imposes limitations on the number of petitions a petitioner for a K nonimmigrant visa for an alien fiancé(e) (K-1) may file or have approved without seeking a waiver of the application of those limitations. If the petitioner has filed two or more K-1 visa petitions at any time in the past, or previously had a K-1 visa petition approved within two years prior to the filing of the current petition, the petitioner must request a waiver. These limitations do not apply to petitioners for a K nonimmigrant visa for an alien spouse (K-3).

- bolded by me; text from the link above

I understand it refers to 2 or more applications prior to the current one.

[1HappyGuy 45]

As I understand it, the USCIS is putting holds on 3rd applications and not on 2nds. If you have filed twice before you should submit a request for waiver with your I-129F application. The waiver guidelines handed down so far are for specific cases and naturally not everyone will fall into those situations. You should be specific about your case(s) and what actually happened. The IMBRA law is looking for people that are trying to move people to America, have histories of abuse, or drug use, or have criminal records.

The purpose of the waiver is to give them a reason to approve your application. If you have tried before but were not successful, tell them why. They really are, people, at the USCIS so they can understand about problems. Give them a chance to understand why you need to apply again.

If you are not sure whether they will put a hold on your application or not, then write a request for a waiver anyway. Make your case for this with much detail and honesty. Don't be too wordy, but give them facts and circumstances. So, just be confident you can make it happen.

I can tell you that the USCIS files are quite thorough. I went through this process twice and they asked me detailed questions about my previous application. Luckily, I discovered my error early on, and as luck and the guidance of God provided, my now new wife wrote to me. So, believe it can happen and it will.

[payxibka 10,044]

http://www.uscis.gov/graphics/lawsregs/han...IMBRA072106.pdf - see filing limitations.

So does the language "two or more" K-1's at anytime inclusive of the current filing (meaning on your second attempt) or is a waiver is required on the third one because the current one is not included in the incremental count. I filed an I129f petition in April 2004 but I formally withdrew the petition after receiving an RFE but before approval (she lied on her g-325a but that is another story all together).

So as I contemplate whether I need to request a waiver or not. Part of me says "yes" because this is my second and part of me says "no" because this filing is not included in the count...

Any other interpretations.....

IMBRA imposes limitations on the number of petitions a petitioner for a K nonimmigrant visa for an alien fiancé(e) (K-1) may file or have approved without seeking a waiver of the application of those limitations. If the petitioner has filed two or more K-1 visa petitions at any time in the past, or previously had a K-1 visa petition approved within two years prior to the filing of the current petition, the petitioner must request a waiver. These limitations do not apply to petitioners for a K nonimmigrant visa for an alien spouse (K-3).

- bolded by me; text from the link above

I understand it refers to 2 or more applications prior to the current one.

I did not focus in on the "in the past" as much as I pretty much stopped reading after I saw the "two or more". It is all much clearer and now amkes more sense.... Thanks....