... in response to Re: IMBRA Update..the feminist applause ..., posted by Brazilophile on Jan 6, 2006Thank you for your probing questions.
I am going to give you (and all the readers here) a freebie on this one, as you raise several issues which are (or should be) of important concern to many. (If people have more follow-up questions, please contact me privately as I prefer not to answer everybody's questions here on this forum.)
Initial comments: Keep in mind that the following is one attorney's viewpoint and analysis only (though I am a person who has been following this law extremely closely). As with any new law, there are many open questions under this law, including some serious legal weaknesses, possibly fatal, which may eventually be raised in federal court in a legal challenge.
DEFINITION OF TERMS
The drafters of this law were quite clever in their use of definitions, which are extremely broad. (Bo Cooper, former INS General Counsel from several years ago, actually drafted this law; he sits on the board of directors of the feminist Tahirih Justice Center.)
A close look at the definition of "International Marriage Broker" (IMB) which is (paraphrase) any corporation, individual, legal entity, etc. WHETHER OR NOT EXISTING UNDER THE LAWS OF THE U.S. who charges fees for providing dating, matrimonial, matchmaking or social referrals.
The definition of "U.S. client" (in the earlier Senate version of this law) includes any U.S. citizen or other person who resides in the U.S. who makes a payment or incurs debt for an IMB's services.
Definition of "foreign national client" in the current law is anyone outside the U.S. OR a legal permanent resident (LPR) in the U.S. who utilizes services of IMB.
ENFORCEMENT OF THIS LAW
We will have to see exactly how this law will actually be enforced and how vigorously and quickly. (There is a 60 day waiting period before the law’s provisions take effect.)
On its face, the broker provisions of the law delegate enforcement to the Justice Dept, and thus the U.S. Attorneys Offices. It appears that a broker will first receive a "citation” for violation followed by a Notice of Hearing for an “agency hearing on the record”. I suspect that this may be an immigration judge at the various immigration courts around the country or possibly before a federal magistrate. But that part is unclear and remains to be seen.
There are civil and criminal penalties on the broker for violations. There are penalties also on “any person” for “misuse of the information”, that is on those who use or disclose the U.S. client’s background information without consent, or who use it to harass or intimidate anyone.
It is important to note that this law states flat out that nothing in this new law shall “pre-empt” or supercede any penalties or remedies or enforcement under any state law. The new law is intended by Congress to SUPPLEMENT, NOT OVERRIDE, other state law rights, remedies and penalties.
SOME TENTATIVE ANSWERS TO YOUR QUESTIONS
1.Does the law apply ONLY to U.S. citizens only? The law applies to “U.S. clients”, which in the earlier Senate version of this law, was broadly defined as a U.S. citizen OR any person residing in the U.S. The definition does NOT say just U.S. citizens living in the U.S. So, yes, the law would seem to apply to a U.S. citizen working abroad in a foreign country.
2.Does the law apply ONLY to U.S. agencies? This is a very interesting question.
The simple and quick answer is: yes, the law applies only to U.S. companies owned and operated in the U.S., (even if they just happen to have a subsidiary or sub-division matchmaker abroad.) Frankly, IMO, it would be very difficult at best to enforce this law on a “foreign company”, with full operations and staff abroad and foreign-owners (or a U.S. owner who is offshore).
But before foreign owners celebrate their “free pass”, there are some complications. For example, the law’s definition of IMB is NOT limited to a U.S. company. (It says ANY company WHETHER OR NOT organized under U.S. law.)
“Foreign national client” and “U.S. client” definitions are also NOT limited to those who deal with a U.S. company only. What about a foreign company with a website hosted by a U.S. server with a U.S. URL and actively soliciting U.S. customers and deriving most of their revenue from U.S. customers? Or who use a U.S. payment processor such as PayPay, partnered with Wells Fargo Bank (U.S. bank)? Or who have a U.S. PO Box or U.S. address on their website or who use an authorized sales agent or sales rep. in the U.S.?
One knowledgeable person I spoke with takes this view: In a special case where it may be warranted, this law can POSSIBLY be enforced on a foreign owner (or a U.S. owner living overseas) as follows: A citation is issued for a known broker violation to the owner, and he is convicted in “absentia”, with the record so noted. When he tries to visit or re-enter the U.S., USCIS officers at Port of Entry enforce the conviction on him by apprehension.
Another problematic issue for the foreign owner (or U.S. owner living overseas) is the Consular Interview for the visa. Under this law, the Officer is required to ask the lady if they met through an IMB (as broadly defined in that law). IF the answer is YES, he MUST ask if the IMB provided the lady with all the background client information on the U.S. client and secured her signed written release before the couple communicated. If NOT, then the Officer presumably has the discretion to DENY issuance of the visa because of the broker violation (even though it was a foreign company).
3.Does the law focus ONLY on the agencies and NOT the men clients? The law focuses on the IMBs and their obligations and penalties. There are no explicit penalties in this law on the U.S. client in dealing with the IMB, if he makes misrepresentations, falsehoods or submits false information. Remember though that this law does NOT pre-empt or over-ride your state law. So if the information the U.S. client submitted to the IMB was false under a signed certification or affidavit, then state law penalties for perjury and false information could apply.
It would seem though that no additional liabilities attach to the IMB if it was the U.S. client who submitted false information. Similarly, if the IMB did anything wrong, nothing in the law seems to penalize the U.S. client for that. In other words, the IMB and the U.S. client are each responsible for their own liabilities, not the other’s.
Keep in mind that the above applies only at the IMB stage of the couple’s communication and relationship. Once the gentleman is serious about the lady and chooses to file a U.S. K-1 Fiancée Visa petition with Immigration, he MUST certify that all information supplied by him in his petition package is truthful, under penalty of federal perjury: up to $25,000 fine and 5 years in federal prison.
HOW IS THE PUBLIC REACTING TO THIS LAW?:
THE “BUYER & SELLER” PUBLIC DIVIDE
Although it is always risky to categorize or label peoples’ response to this law (and of course, it is obvious that each person's view is individual and that each person thinks for himself), nevertheless, IMO, in the brief few days of this new law, the "buyer & seller" public, as you call it, seems to be divided roughly into 4 groups:
1) THE DISBELIEVERS – these people may still be in a state of “denial”, and probably need to reflect quietly and read this law
2) THE NEIGH-SAYERS – these may be people who under-estimate this law, and depreciate its potential effect, they almost “pooh-pooh” it . They take the view that the new law just means that everybody has to give up a little more information, and that it won’t have much real impact, or that it will take Uncle Sam years to enforcement it, so
who cares? (I hope that they are right, but I am not optimistic about that.)
3) THE DOOM-SAYERS – This group sees a monumental change in the landscape of international romance and the visa process: Brokers, agencies, tour groups, and correspondence websites leaving the business, and U.S. customers and foreign ladies basically “scared off” by suffocating document requirements, etc. For this group, this new law might be a combination of a tsunami, earthquake and asteroid hitting all at once, a “romance Armageddon”. (I fear that this may turn out to be only a small exaggeration.). A subset of this group are the RUN & HIDE group who will move overseas or underground to escape the clutches of this law, or at least will try.
4) THE REALISTS –This group is reading this law closely and attempting to try and comply with it as best they can cost-effectively, and thinking about some imaginative options, including but not only, use of release and consent forms on webpages, on the Internet, and via electronic forms, etc.
Frankly, it may well be that some people (sellers) will likely leave the business, go underground or go overseas. And some businesses will choose to violate the law until they are caught.
Bottom line: we will all experience and “live and learn” exactly what will happen as the law is actually rolled out.
