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IMBRA IMBROGLIO: The Multiple Petition Limit Math In The USCIS Regulation Of IMBRA Doesn't Add Up

by Marc Ellis

One of the sections of the International Marriage Broker Regulation Act signed into law by President Bush on January 05, 2006 required a waiver for certain petitioners who had previously sponsored a K visa beneficiary [modified 02/06/07 Ed.]. [1] Part of the law places a limit on the number of K-1 visa petitions a petitioner may file without a discretionary waiver from USCIS. The law does not apply to I-130 IR or CR-1 petitions. It applies to K-3 petitions in some respects and does not apply to them in others. (See the Aytes memorandum referred to later in the article.)

In this article, I will point out that USCIS has misread the section of the law that deals with multiple petitions and it has made a basic arithmetic error in enforcing the waiver requirement placed on US Citizen Petitioners. I'll also suggest that the end result has both increased the workload of USCIS Service Centers and caused grief to US Citizen petitioners.

First, I will give you the hypothetical fact situation:

  1. US Citizen A sponsors Foreign Beneficiary A for a K-1 visa. There are no derivative beneficiaries.
  2. The petition is approved by the California Service Center [2] and forwarded to the US Consulate in the beneficiary's home country.
  3. The consulate denies the beneficiary's visa application and returns the petition to CSC, with the recommendation that the petition's approval be revoked.
  4. Eventually, petitioner receives an I-797 notice from CSC that states the petition's approval was not revalidated by a consular officer, and therefore has expired[3].
That's the fact situation. It's a very common one these days.

So now what? Can the petitioner really just file a new K-1 petition for the same beneficiary and give the process another try with more accumulated evidence of their relationship? No. At least that is the USCIS interpretation of Section 832 (D) of IMBRA. The US Citizen Petitioner must now apply for a waiver of IMBRA's multiple petition limit. But that's not what the statute says. It says something quite different. The exact language of Section 832 (D)(2)(A) of the IMBRA Act reads as follows: (I have added emphasis).
Subject to subparagraphs (B) and (C), a consular officer may not approve a petition under paragraph (1) unless the officer has verified that- ''(i) the petitioner has not, previous to the pending petition, petitioned under paragraph (1) with respect to two or more applying aliens; and
''(ii) if the petitioner has had such a petition previously approved, 2 years have elapsed since the filing of such previously approved petition.

(B) The Secretary of Homeland Security may, in the Secretary's discretion, waive the limitations in subparagraph (A) if justification exists for such a waiver…."
There is an obvious problem in the drafting of this law. Consular officers do not approve petitions. The authority to approve family immigrant and K visa petitions resides solely with the Department of Homeland Security. But that is not the section that is causing the most trouble. It can reasonably be finessed by regulators interpreting it to read that a multiple petitions with respect to two or more applying aliens within two years may not be approved by whatever agency is responsible for approving them.

The part that is causing grief to US Citizen petitioners and increasing the workload of USCIS Service Centers was not caused by the Congressional authors. It is caused by the Service's complete elimination of the phrase "...with respect to two or more applying aliens" from its regulatory enforcement of the law.

USCIS seems to have concluded that "two or more applying aliens", actually means only one applying alien.

A July 21st, 2006 memorandum by Michael Aytes(emphasis added), states:
"B. Filing Limitations
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)."
Notice the complete absence of the words, "...with respect to two or more applying aliens". The Aytes memorandum precludes a petitioner from having a new K-1 visa petition approved for the same beneficiary, even though the statute itself restricts the approval of multiple petitions to those petitioners who petition for "... two or more applying aliens."

I am not sure why this is the official interpretation. It is true that under other sections of IMBRA, for instance, the multiple petition tracking database created by the law, that there is no such limitation. But the language governing the multiple petition limit placed on petitioners is express and has a plain meaning. I'm no mathematician, but even I know that 1 does not equal 2 or more.

Perhaps USCIS in constructing a regulatory scheme, has lumped both the database and the waiver requirement together. I don't know. But they are completely separate and should not be confused.

Perhaps the confusion arises out of the enabling laws. The section of the IMBRA that creates a multiple petition database uses the definitions found in section 101(a)(15)(K) of the Act. The controlling definition for the multiple petition waiver arises out of the IMBRA law itself, section 832, not Section 101(a)(15)(K).

The section of IMBRA that creates the multiple petition database is found in the same section at (ii)(B) and reads as follows:
"…Upon approval of a second visa petition under section 101(a)(15)(K) for a fiance´(e) or spouse filed by the same United States citizen petitioner, the petitioner shall be notified by the Secretary that information concerning the petitioner has been entered into the multiple visa petition tracking database. All subsequent fiance´(e) or spouse nonimmigrant visa petitions filed by that petitioner under such section shall be entered in the database. ''(B)(i) Once a petitioner has had two fiance´(e) or spousal petitions approved under clause (i) or (ii) of section 101(a)(15)(K), if a subsequent petition is filed under such section less than 10 years after the date the first visa petition was filed under such section, the Secretary of Homeland Security shall notify both the petitioner and beneficiary of any such subsequent petition about the number of previously approved fiance´(e) or spousal petitions listed in the database."
So the law mandates that multiple petitions, even for the same applying alien beneficiaries, be entered into a database and that certain disclosures be made to both beneficiaries and petitioners about the previous petitions.

OK. But that is a separate requirement from the multiple petition limit imposed on US Citizen Petitioners. And it is tied to a different enabling law, the Immigration and Nationality Act that defines K-1 visas.

The limit imposed on petitioners is expressly limited to subsequent petitions for two or more applying aliens! That is the language of the statute, and it arises not out of 101(a)(15)(K), but out of the IMBRA law itself.

Yet, a US Citizen re-sponsoring the same beneficiary after a consulate returns the petition is now subject to the multiple petition waiver requirement- even though there is only one applying alien! California Service Center correspondence I have seen recently, informs petitioners that:
"The new IMBRA law requires that a second I-129F filed within two years of the first filing contain a waiver…". Such correspondence refers the petitioner to the Michael Aytes Memorandum of July, 2006. Again, note the absence of the words, "…with respect to two or more applying aliens…".
As I stated in an earlier footnote, this problem is made worse where a USCIS Service Center allows a K-1 petition approval to simply expire at the end of 120 days, without providing petitioners the opportunity to respond to consulate's unfavorable return memorandum.
That's because the petitioners must now apply for waivers to file again.

The Vermont Service Center and Nebraska Service Centers give K-1 petitioners the chance to respond to consular return memorandums and many immigration practitioners including myself, have had success in getting such K-1 approvals reaffirmed. The California Service Center has not normally allowed petitioners this opportunity as a matter of policy.

In a case where a petitioner successfully overcomes a Notice of Intent to Deny letter sent on a K-1 petition, the reaffirmed petition is a continuation of the previous approval and presents no IMBRA multiple petition problems.

The California Service Center's policy of allowing a K-1 approval to simply expire because a consular officer did not revalidate, may have been a less expensive administrative approach to conserve the limited staff resources of the Service Center staff. And it might still be a less-expensive approach if the USCIS regulatory interpretation did not require multiple petition waivers for the same beneficiary.

Now, allowing a K-1 petition approval to expire, even though it has been returned by a consulate, will cause the multiple petition waiver requirement to kick in. That means a petitioner will have to apply for a waiver. That means the USCIS Service Center must now assign staff to adjudicate the waiver applications that will come in the mail.


That's a description of the problem, as I see it. What are some possible solutions?

I. Post-IMBRA, it may be more cost-effective for USCIS to simply allow a petitioner to submit evidence to counter the consulate's conclusions about the merits of his or her case.

II. I think a more effective approach would be for USCIS to recompute the multiple petition math in its regulatory enforcement. Remember, 1 does not equal 2. The phrase, "…two or more applying aliens," means exactly what it says. Thus, waivers should not be required where multiple petitions are for the same beneficiary.

III. Another partial solution would be for consulates to stop returning so many petitions to the USCIS Service Centers. But that alone, would not eliminate the logical inconsistency and the error in basic arithmetic that is enshrined in USCIS enforcement of the multiple petition limit.

The ultimate problem as I see it, is really very simple. One does not equal "two or more." Multiple petition waivers under IMBRA should not be required for the same K-1 beneficiary.

That's how I read the law anyway.


1 "The International Marriage Broker Regulation Act of 2005 (IMBRA)", Public Law No. 109-162, Title VIII, Subtitle D, codified at 8 USC §1375a(d)(2) and (e)(4)].

2 It's important to note that Vermont Service Center and the Nebraska Service Center handle K-1 petition returns from consulates differently than does California. Therefore, my fact situation does not apply to them. Rather, it applies only to California and the Texas Service Center K-1 petitions that are adjudicated by CSC.

3 Not "revoked" - rather the petition's approval has "expired." The difference is legally significant.

About The Author

Marc Ellis is an immigration attorney practicing in Ho Chi Minh City, Vietnam and Houston Texas. In France, he is known as the composer of "The Fantomas Waltz".

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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