Visa Petitions Under the Adam Walsh Act

April 23, 2010

While this topic is slightly removed from our primary focus, we often hear from readers asking about Visa Petitions and how they are affected by the Adam Walsh Act laws. To be honest, I am unfamiliar with how the immigration visa process works but will try to post some useful links and information below. If any reader would like to submit a clear and concise brief on how the Adam Walsh Act affects Family-Based Visa Petitions, it can be sent to constitutionalfights@yahoo.com.

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This memorandum provides guidance for the initial implementation of the recently enacted Immigration Law Reforms to Prevent Sex Offenders from Abusing Children (Title IV of the Adam Walsh Child Protection and Safety Act of 2006).

On July 27, 2006, President Bush signed into law H.R. 4772, the Adam Walsh Child Protection and Safety Act of 2006 (“Adam Walsh Act”), an Act to protect children from sexual exploitation and violent crime, to prevent child abuse and child pornography, to promote Internet safety, and to honor the memory of Adam Walsh and other child crime victims.

Section 402 of the Adam Walsh Act amends section 204 of the Immigration and Nationality Act (INA) to prohibit U.S. citizens and lawful permanent resident aliens who have been convicted of any “specified offense against a minor” from filing a family-based immigrant petition (including the Form I-130 and the Petition to Classify Orphan, Form I-600A or I-600) on behalf of any beneficiary, unless the Secretary of Homeland Security determines in his sole and unreviewable discretion that the petitioner poses no risk to the beneficiary. Section 402 of the Adam Walsh Act also amends section 101(a)(15) of the INA to remove spouses or fiancés of U.S. citizens convicted of these offenses from eligibility for “K” nonimmigrant status (Form I-129F).

The operative definition of “specified offense against a minor” is contained in section 111(7) of the Adam Walsh Act:

“The term `specified offense against a minor’ means an offense against a minor that involves any of the following:
(A) An offense (unless committed by a parent or guardian) involving kidnapping.
(B) An offense (unless committed by a parent or guardian) involving false imprisonment.
(C) Solicitation to engage in sexual conduct.
(D) Use in a sexual performance.
(E) Solicitation to practice prostitution.
(F) Video voyeurism as described in section 1801 of title 18, United States Code.
(G) Possession, production, or distribution of child pornography.
(H) Criminal sexual conduct involving a minor, or the use of the Internet to facilitate or attempt such conduct.
(I) Any conduct that by its nature is a sex offense against a minor.”

A minor is defined as an individual who has not attained the age of 18 years.

The Adam Walsh Act is effective on the date of enactment. It applies to all petitions pending on or after that date. Headquarters is currently reviewing this recently enacted legislation and will provide detailed guidance for implementation. In the interim, the following procedures are implemented effective this date:

If the petitioner’s IBIS check reveals a hit for any sexual or kidnapping offense that is, or potentially may be a “specified offense against a minor” as defined above, the following actions will be taken:
1. A Request for Evidence will be issued for all police arrest records and court disposition documents.
2. The petitioner will be scheduled for fingerprinting in accordance with Center or Field Office procedures. These fingerprints will be processed without fee.
Adjudication of these cases will be suspended pending further guidance, however these petitions may be denied on grounds not related to the above.
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Resources:
2006 USCIS Memorandum (PDF)
Family Based Immigration Forum
VisaJourney Forum
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From an immigration attorney commercial site:
Prohibitions Under the Walsh Act

A petitioner who has been convicted of a specified offense against a minor is not simply prohibited from filing on behalf of a minor child. The petitioner is prohibited from filing on behalf of “any” family-based beneficiary under sections 204(a)(1)(A)(i) and 204(a)(1)(B)(i) of the Act or in accordance with section 101(a)(15)(K) of the Act. “Any beneficiary” includes a spouse, a fiancé(e), a parent, an unmarried child, an unmarried son or daughter over 21 years of age, an orphan, a married son or daughter, a brother or sister, and any derivative beneficiary permitted to apply for an immigrant visa on the basis of his or her relationship to the principal beneficiary of a family-based petition

Section 401 of the Adam Walsh Act amends section 237(a)(2)(A) of the INA by adding a new subparagraph (v). Under new section 237(a)(2)(A)(v), an alien who is convicted under new 18 USC 2250, for failing to register as a sex offender, is subject to removal as a deportable alien.

Approved Family Based Petitions May Be Revoked Under Adam Walsh Act:
If, at any time prior to adjustment of status or consular processing, USCIS becomes aware that the petitioner has a conviction for a specified offense against a minor, it will revoke the approved family-based immigrant visa petition or reopen and reconsider the I-129F.

Further, the approved immigrant visa petitions may be reopened for “good and sufficient cause” under Section 205 of the Act. Revocation of the approval is allowed under 8 CFR 205.2 if the petitioner has been convicted of a specified offense against a minor and USCIS finds that the petitioner poses risk to the beneficiary. Therefore, USCIS conducts additional IBIS checks on the petitioner of the family-based immigrant petition at the time the beneficiary adjusts status. Pursuant to 8 CFR 103.5(a)(5)(ii) USCIS may reopen and reconsider the decision on I-129F if the petitioner has been convicted of a specified offense against a minor and USCIS determines that the petitioner poses any risk to the beneficiary.

What is a “Specified Offense Against a Minor”?

The phrase “specified offense against a minor” in the Adam Walsh Act is defined broadly to take into account that these offenses may be named differently in a wide variety of Federal, State and foreign criminal statutes. The statutory list is not composed of specific statutory violations.

As defined in the relevant criminal statute, for a conviction to be deemed a specified offense against a minor, the essential elements of the crime for which the petitioner was convicted must be substantially similar to an offense defined as such in the Adam Walsh Act. USCIS will issue a Request for Evidence (RFE) for all police arrest records and court disposition documents and schedule the petitioner for fingerprints if the petitioner’s IBIS check reveals a hit for any offense that is or may be a “specified offense against a minor” as defined above.

If there is an IBIS hit or other indication that a lawful permanent resident petitioner may have a conviction for a specified offense against a minor as defined in the Adam Walsh Act, the USCIS will suspend the case adjudication. If the offense meets the definition of an egregious public safety threat, USCIS will refer the case to U.S. Immigration and Customs Enforcement (ICE) for initiation of removal proceedings against petitioner.

If the petition has been approved or is being processed and there is an IBIS hit, USCIS will issue a RFE or Notice of Intent to Revoke (NOIR) and request all police arrest records and court disposition documents. If the petitioner was previously identified as posing risk, USCIS will obtain petitioner’s current rap sheet.

If the petitioner fails to respond to the RFE or NOIR, the petition is denied or revoked accordingly. If the fingerprint results and the evidence submitted in response to an RFE or NOIR indicate that the petitioner was not convicted of a specified offense against a minor as defined by the Adam Walsh Act, USCIS will process the petition in accordance with 8 CFR 204.

If, after review of the fingerprint results and the evidence submitted in response to the RFE or NOIR USCIS is not sure whether the petitioner’s conviction is a specified offense against a minor, or the criminal case against the petitioner is still pending and its disposition is unknown, USCIS will send petitioner’s file for supervisory review and opinion. In some cases, ICE may decide to initiate removal proceedings against any lawful permanent resident who is deportable under section 237(a)(2)(A)(v) of the INA (conviction for having failed to register as a sex offender).

If, after review of the fingerprint results the evidence submitted in response to the RFE or NOIR, USCIS finds that the petitioner has been convicted of a specified offense against a minor as defined by the Adam Walsh Act, USCIS will determine whether the petitioner poses a risk to the beneficiary.

Procedures for Determining whether Petitioner “Poses No Risk” to Beneficiary:

The main purpose of section 402 of the Adam Walsh Act is to ensure that an intended alien beneficiary is not placed at risk of harm from the person seeking to facilitate the alien’s immigration to the United States. USCIS, therefore, may not approve a family-based petition (I-130 or I-129F) if the petitioner has a conviction for a specified offense against a minor unless USCIS first determines that the petitioner poses no risk to the beneficiary on whose behalf a petition was filed. Under section 402 of the Adam Walsh Act, only the Secretary has this discretion and the “sole and unreviewable” authority to decide whether a petitioner poses any risk to the intended beneficiary. The phrase “poses no risk to the beneficiary” means that the petitioner must pose no risk to the safety or well-being of the principal or derivative beneficiaries.

Evidence of Rehabilitation:

We recommend submission of sufficient evidence of rehabilitation if the petitioner is implicated by the Adam Walsh Act. Petitioner must demonstrate by clear evidence and beyond any reasonable doubt, that he or she poses no risk to the safety and well-being of his or her intended beneficiary. The initially filed petition or response to an RFE or NOIR must include whatever evidence and legal argument the petitioner wants USCIS to consider in making its risk determination. Examples of such evidence include, but are not limited to:

*Certified records indicating successful completion of counseling or rehabilitation programs;
* Certified evaluations conducted by licensed professionals, such as psychiatrists, clinical psychologists, or clinical social workers, which attest to the degree of a petitioner’s rehabilitation or behavior modification;
* Evidence demonstrating intervening good and exemplary service to the community or in the uniformed services;
* Certified copies of police reports and court records relating to the offense (the court records must include the original indictment or other charging document, any superseding charging document, any pre-sentencing report, and the conviction judgment); and
* News accounts and trial transcripts describing the nature and circumstances surrounding the petitioner’s specified offense(s) against a minor and any other criminal, violent, or abusive behavior incidents, arrests, and convictions.

The determination of whether a petitioner’s evidence is credible, and the weight and probative value to be given that evidence, shall be within the sole and unreviewable discretion of USCIS.

Factors USCIS Considers in Adjudication Process:

USCIS considers all known factors that are relevant to determining whether the petitioner poses any risk to the safety and well-being of the beneficiary. Here is the non-exclusive list of the factors:

1. The nature and severity of the petitioner’s specified offense against a minor, including all facts and circumstances underlying the offense;
2. The petitioner’s criminal history;
3. The nature, severity, and mitigating circumstances of any arrests, convictions, or history of alcohol or substance abuse, sexual or child abuse, domestic violence, or other violent or criminal behavior that may pose a risk to the safety or well-being of the principal beneficiary or any derivative beneficiary;
4. The relationship of the petitioner to the principal beneficiary and any derivative beneficiary;
5. The age and, if relevant, the gender of the beneficiary;
6. Whether the petitioner and beneficiary will be residing either in the same household or within close proximity to one another; and
7. The degree of rehabilitation or behavior modification that may alleviate any risk posed by the petitioner to the beneficiary, evidenced by the successful completion of appropriate counseling or rehabilitation programs and the significant passage of time between incidence of violent, criminal, or abusive behavior and the submission of the petition.

The USCIS automatically presumes that risk exists in any case where the intended beneficiary is a child, irrespective of the nature and severity of the petitioner’s specified offense and other past criminal acts and irrespective of whether the petitioner and beneficiary will be residing either in the same household or within close proximity to one another.

During the application process our client has clear understanding that the burden is upon him/her to rebut and overcome the presumption of risk by providing credible and persuasive evidence of rehabilitation and any other relevant evidence that proves, beyond any reasonable doubt, that he or she poses no risk to the intended child beneficiary.

In cases where none of the intended beneficiaries are children, USCIS closely examines the petitioner’s specified offense and other past criminal acts to determine whether the petitioner poses any risk to the safety or well-being of the adult beneficiary. It considers past acts of spousal abuse or other acts of violence. The fact that a petitioner’s past criminal acts may have been perpetrated only against children or that the petitioner and beneficiary will not be residing either in the same household or within close proximity to one another may not, in and of themselves, are sufficient to convince USCIS that the petitioner poses no risk to the adult beneficiary.

In case of an adult beneficiary, our client is advised that the burden is upon the petitioner to prove, beyond any reasonable doubt, that he or she poses no risk to the intended adult beneficiary. Therefore, it is important to prepare and present documents in the light most favorable to the petitioner that the petitioner poses no risk to the beneficiary. If no such evidence is presented, USCIS will deny the application.

If the USCIS adjudicating officer is uncertain as to whether the petitioner poses no risk to the beneficiary, or if the adjudicator is finding it difficult to articulate the factual basis for the denial, the office will consult with his/her supervisor and/or USCIS counsel. USCIS cannot approve the petition subject to Adam Walsh Act without guidance from the USCIS’ headquarters.

Denials under Adam Walsh Act:

The denial or revocation of orphan and fiancé cases may be appealed to the Administrative Appeals Office (“AAO”). Section 402 of the Adam Walsh Act does not affect the AAO’s jurisdiction in orphan and fiancé/fiancée cases.

This information is general in nature and is not specific legal advice.

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