A Conversation with Michele Hanash: The Immigration Loophole Allowing Human Trafficking

The well-intentioned law allows spouses and fiancé s of American citizens to obtain visas, but a fatal flaw leaves children vulnerable to trafficking.

Michele Hanash is a U.S.-based lawyer on the frontlines of the battle against child marriage as the Director of Policy and Women’s Programs at the AHA Foundation, founded by Ayaan Hirsi Ali in 2007.

Why this conversation matters: Immigration is a hot topic, especially in an election year. A critical loophole leaves children vulnerable to human trafficking. There is no better time to close that loophole than now.

THE CONVERSATION

RtW: U.S. immigration law provides for spousal and fiancé visas. Can you explain what they are and who is eligible to receive and sponsor them?

Hanash: Spousal visas allow a U.S. citizen or lawful permanent resident to sponsor a foreign-born spouse for immigration to the United States. Fiancée visas, commonly known as K-1 visas, allow a U.S. citizen to sponsor a foreign-born fiancé(e) to enter the country for the purpose of marriage. The couple must marry within 90 days of the fiancé(e)’s arrival.Once a foreign spouse or fiancé(e) arrives in the United States – and, in the case of a fiancé(e), the couple marries – the immigrant may apply for lawful permanent resident status, commonly known as a green card.

That application must include an Affidavit of Support, a legally binding commitment by a sponsor to assume financial responsibility for the immigrant. Federal law requires anyone signing this affidavit to be at least 18 years old.This exposes a striking inconsistency in U.S. immigration law: a minor can petition for an adult spouse or fiancé(e) to receive immigration benefits, but that same minor is legally too young to serve as the financial sponsor required for the immigrant to obtain a green card. In other words, federal law recognizes that children lack the legal capacity to undertake the responsibilities of sponsorship, yet it still permits them to petition for a spouse or fiancé(e) in the first place.

RtW: I understand that there is no age restriction on these visas. What are the dangers of this scheme?

Hanash: Correct. In 2017, AHA Foundation identified a major loophole in federal immigration law: there is currently no minimum age to sponsor, or be the beneficiary of, a spousal or fiancée visa.

The problem is that federal immigration policy can facilitate child marriage. Most Americans are unaware that child marriage remains legal in much of the United States. Between 2000 and 2021, nearly 315,000 children-- some as young as 10 years old-- were married in the U.S., the vast majority of them girls married to adult men. As recently as 2018, child marriage was legal in every state. Thanks to the advocacy of AHA Foundation and our allies, it is now prohibited in 17 states, but it remains legal in 33.

When adjudicating marriage-based immigration petitions, U.S. Citizenship and Immigration Services (USCIS) generally defers to the marriage laws of the state where the couple intends to reside. If that state permits child marriage, USCIS will likely approve the petition despite the age of one of the spouses. Between 2007 and 2017, USCIS approved approximately 88 percent of petitions for spousal visa eligibility, and 77 percent of petitions for fiancé immigration benefits, with either a minor as the beneficiary or petitioner.

The consequences can be severe. Since a lawful permanent resident married to a U.S. citizen may generally apply for naturalization after three years, a child in the United States can be married to an adult abroad, providing that adult with both a “child bride” and a pathway to lawful immigration status. Conversely, a foreign-born child can be trafficked to the United States through a marriage-based visa and become trapped in an abusive relationship. We are aware of cases such as these involving extreme abuse, demonstrating how marriage can be used to facilitate coercion, exploitation, and trafficking.

Because minors lack the full legal rights and protections afforded to adults, child marriages are particularly vulnerable to force, coercion, and abuse. For this reason, the U.S. Department of State recognizes child marriage as a human rights abuse.

RtW: Do we know whether or not this loophole has been abused?

Hanash: Following a FOIA request filed by AHA Foundation, a subsequent investigation led the U.S. Senate Homeland Security and Governmental Affairs Committee to issue a 2019 report containing deeply troubling findings:

• Nearly 9,000 child marriage visa petitions were approved between 2007–2017 by USCIS.

• Girls were the younger spouse in 95% of cases. Petitions included children as young as 13, and sometimes large age gaps between spouses. USCIS approved 28 petitions for U.S. adults who were 50 years old or over applying for a spouse or fiancé petition for a minor.

RtW: Has there ever been any effort to eradicate this loophole? How far did that effort progress?

Hanash: In 2019, the AHA Foundation worked with Senator Ron Johnson from Wisconsin to close the federal immigration loophole, but the effort stalled during the COVID-19 pandemic. A 2024 bill introduced by Senator Dick Durbin proposed limitintg child marriage in visa applications through a “humanitarian exception” allowing 16- and 17-year-olds to be the beneficiary of marriage visas. We and other advocates opposed this legislation because it would still expose vulnerable minors to exploitation. That bill died with no action.

RtW: What can we do to change the momentum so that this loophole is closed?

Hanash: We must end child marriage in every state, but that remains a lengthy, labor-intensive, state-by-state campaign. In the meantime, the federal government must immediately close the loopholes it controls. Congress could act right now with simple, commonsense legislation to prevent immigration laws from facilitating child marriage and abuse. The National Coalition to End Child Marriage, on whose steering committee we serve, has drafted strong legislation that would close these loopholes and amend several other federal laws that continue to enable child marriage. We and our allies have sought a federal sponsor, but so far no national leader has stepped forward to champion these protections for children.

What makes child marriage especially egregious is that it amounts to state-sanctioned sexual abuse of minors. At least 66,415 child marriages in the U.S. since 2000 involved an age or spousal age difference that should have constituted a sex crime. In 90% of those cases, marriage handed a rapist a “get out of jail free” card. In the remaining cases, the law sent a child home to be raped under the law by their spouse. We may not be able to end all child abuse overnight, but this is one form of abuse we could end in the United States today – if there were enough political will.

Many survivors we work with have courageously shared their stories on our website. They were failed by a system that allowed them to be exploited instead of protected. Too many adults, including people in positions of power, looked the other way. It is time for the public to stop looking away as well and demand that our leaders finally act.

THE BOTTOM LINE

This loophole would take very little to close, but could save hundreds if not thousands of vulnerable children from lives full of abuse. This should be an easy issue that garners bipartisan support, but we must generate the political will to make it a Congressional priority.