U.S. citizens and lawful permanent residents, that is, petitioners, can  request or petition USCIS to allow certain relatives to immigrate to the  United States. According to USCIS officials,  background security checks were conducted on all beneficiaries prior to  September 11. Hundreds of Convicted Sex Offenders Have Petitioned for Spouses, Fiancé(e)s, and other Relatives, including Children

At least 398 convicted sex offenders filed petitions for spouses, fiancé(e)s,  children, and other relatives in fiscal year 2005 based upon matching  several data elements from USCIS’s database with data from FBI’s  National Sex Offender Registry. There may be additional convicted sex  offenders who filed family-based petitions. The 398 sex offenders filed a total of 420 petitions. The 398 sex offenders were convicted of at least   411 sex offenses, including sexual assault, rape, and child molestation,  according to conviction data contained in the NSOR. At least 45 of the  convictions were for sex offenses against children. Convicted sex offenders are not prohibited by the INA from petitioning to  bring their spouses, fiancé(e)s, or children into the United States. Therefore,  consular officers have no legal basis to deny a visa to a noncitizen based  solely on the fact that the petitioner has a criminal sexual background. Agencies Have a Framework for Disclosing Petitioners’ Criminal Sexual History to Noncitizen Beneficiaries

According to both USCIS and Department of State officials, the compelling  circumstances exception to the Privacy Act of 1974 provides authority to  disclose a petitioner’s criminal sexual history to a noncitizen beneficiary  on a case-by-case basis. The recently  enacted International Marriage Broker Regulation Act (IMBRA) of 2005  requires disclosure of a U.S. citizen’s criminal background information,  including sex crimes, to certain prospective immigrants, essentially  noncitizen fiancé(e)s, but some spouses and children as well. On May 3,  2006, USCIS issued Privacy Act interim guidance advising adjudicators of  when it may be appropriate to disclose a petitioner’s criminal history  involving violence or sex offenses to potential visa beneficiaries under the  compelling circumstances exception. In a letter to GAO,  the Chief, Advisory Opinions Branch, of the Department of State’s Visa  Office wrote, “the clear possibility of abuse that an immigrant child would  face while living in the same household as a convicted sex offender  provides a strong basis for applying the health and safety exception in  these cases.” The Department of State asserts that its position is  “consistent with overall U.S. policy balancing the need to inform the public  of the potential threat to a community posed by a child sex offender with  the privacy interests of the offender.” According to the Department,  consular officials are to consult with the department’s visa policy and legal  staff prior to disclosure of a criminal record or other negative factors. New Statute Requires Disclosure of Petitioner’s Criminal Background Information to Some Noncitizen Beneficiaries

For certain noncitizen beneficiaries, disclosure of the petitioner’s criminal  background information is now mandatory based on new authority  granted to USCIS and the Department of State. Supplementing the  disclosure by mail, IMBRA also requires Department of State consular  officers to “provide for the disclosure of such criminal background  information to the visa applicant at the consular interview in the primary  language of the visa applicant.”
IMBRA’s mandatory disclosure requirement only extends to fiancé(e)s,  spouses, and their minor children (i.e., unmarried children under 21 years  old), who are sponsored by U.S. citizens and enter the United States on a K  nonimmigrant visa issued by the Department of State. In fiscal year 2005, about 80 percent of  all family-based petitions filed were for other than K visas. USCIS has not yet revised the petition. The  officials said that they are preparing to issue disclosure guidance to  consular officers that will cover discretionary Privacy Act disclosures not  covered under IMBRA and are finalizing separate guidance with regard to  the mandatory disclosures required under IMBRA. Agency Comments

We requested comments on a draft of this report from the Secretaries of  Homeland Security and State and the Attorney General. Citizenship and  Immigration Services (USCIS) family-based petitioner data with data on  individuals contained in the Federal Bureau of Investigation’s (FBI)  National Crime Information Center (NCIC) Convicted Sexual Offender  Registry File, known as the National Sex Offender Registry.
Why GAO Did This Study

In fiscal year 2005, U.S. citizens and lawful permanent residents filed about 730,000 petitions with the U.S. Citizenship and Immigration Services (USCIS) to sponsor noncitizen family members, including spouses, fiances, and children, to immigrate to the United States. Those doing the sponsoring are called petitioners; those benefiting from the sponsoring are called beneficiaries. If USCIS approves the petition, overseas beneficiaries must also file a visa application with the Department of State to enter the United States. In January 2002, USCIS started to conduct background security checks on all petitioners in addition to the beneficiaries. These background checks revealed that some of the petitioners had convictions for criminal sex offenses; further, some of those criminal sex offenders were filing family-based petitions for children (those under the age of 21). This report addresses the number of convicted sex offenders who filed family-based petitions in fiscal year 2005 based upon a computer match of USCIS data with individuals in the Federal Bureau of Investigation's National Sex Offender Registry and discusses USCIS's and the Department of State's framework for disclosing a sponsor's criminal sexual background to the beneficiary. DHS, the Department of State, and the Department of Justice reviewed a draft of this report. Only technical comments were provided and have been incorporated into this report.

What GAO Found

At least 398 convicted sex offenders filed a total of 420 petitions in fiscal year 2005 for spouses, fiances, children, and other relatives. Immigration law does not prohibit convicted sex offenders from petitioning to bring their spouses, fiances, or children into the United States and generally USCIS cannot deny a petition based solely on the fact that the petitioner is a convicted sex offender. The sex offenders were convicted of at least 411 sex-related crimes, including sexual assault and rape, according to data in the Federal Bureau of Investigation's National Sex Offender Registry. At least 45 convictions involved crimes against children. While most beneficiaries were spouses and fiances, criminal sex offenders petitioned for at least 60 children. According to USCIS and Department of State officials, an exception to the Privacy Act of 1974 gives them authority to disclose a petitioner's criminal sex offender history if there are "compelling circumstances affecting the health and safety" of the beneficiary. For certain noncitizen beneficiaries, disclosure of the petitioner's criminal background information is now mandatory based on new authority granted to USCIS and the Department of State. The International Marriage Broker Regulation Act of 2005 (IMBRA) requires disclosure of a U.S. citizen's criminal background information, including sex crimes, to certain prospective immigrants, essentially noncitizen fiances, but some spouses and minor children as well. Mandatory disclosure is not required for beneficiaries not covered by IMBRA, though these beneficiaries may receive information about a petitioner's criminal background on a discretionary basis under the Privacy Act exception. GAO estimates that IMBRA's mandatory disclosure requirement will cover about 20 percent of family-based beneficiaries based on fiscal year 2005 data. On May 3, 2006, USCIS issued interim guidance to its adjudicators on when it may be appropriate to disclose information related to a petitioner's criminal history under the "compelling circumstances" exception to the Privacy Act. USCIS plans to issue separate guidance related to disclosure requirements under IMBRA. Department of State officials said that they are preparing to issue Privacy Act disclosure guidance and are finalizing separate IMBRA disclosure guidance.