USCIS Implements a New Level of Review for Petitioners with Specified Offense against a Minor

March 25, 2011 by Immigration Law Attorney Lena Korial-Yonan, Esq.

Under the Adam Walsh Child Protection and Safety Act of 2006, also called Adam Walsh Act, U.S. citizens and lawful permanent residents who have convictions for "specified offense against a minor" must disclose this information at the time of filing any relative petitions with USCIS. On March 22, 2011, USCIS announced new procedures for centralizing these types of petitions so that the Adam Walsh Act can be better enforced by USCIS.

The following new procedure applies only to petitions filed with an USCIS service center and not for petitions being adjudicated at USCIS field offices.

Purpose Behind Adam Walsh Act

The Adam Walsh Act (AWA) was enacted to protect children being sponsored by U.S. petitioners and green card holders from being sexually abused and / or from becoming victims of violent crimes. The AWA applies to "specified offense against a minor," and includes the following crimes that petitioners may be convicted of:

• Domestic violence
• Solicitation of sexual contact with a minor
• Sexual acts with a minor
• Child pornography
• Kidnapping or false imprisonment (exceptions for guardian or parent)
• Video voyeurism
• Solicit to place in prostitution practices
• Any others that involve similar acts to the above

New Procedures by USCIS to Handle Stand-Alone I-130 and I-129F petitions

Basically all I-130 and I-129 will now be handled by Vermont Service Center (VSC) if the preliminary adjudicator determines that the petition may be subject to an AWA provision. So even if the case is filed in another location, the case will be transferred to VSC once a "hit" is found as a result of criminal searches completed by USCIS.

Before the case is sent to VSC, USCIS will first run "front-end" criminal searches to determine if AWA applies. If nothing is found through the first search, then a second search will take place to check if there is any criminal history under the petitioner's aliases used and also run search through IBIS Manifest. These searches will be completed before any work is started on the fiancЋ / fiancЋe visa or spousal petition.

The AWA will come into play if the petitioner files for a family member that is a parent, spouse, child or sibling. AWA will not bar the petitioner if the relevant criminal charge was dismissed, withdrawn, or prosecution finds nolle prosequi (no prosecution). If the victim of the sexual abuse was an adult, then the conviction may possibly not bar the petitioner under AWA.

If the VSC determines that AWA may apply, the VSC has the right to schedule a fingerprint appointment for the U.S. petitioner.

What to do if You are Barred under AWA

The Form I-129F on the second page asks detailed questions about U.S. petitioner's criminal history. You must answer these questions honestly and provide documentation as per the instructions on the form. The AWA also applies to form I-130, despite the fact that the form itself does not ask any questions about the petitioner's criminal history.

You can ask for a waiver of the bar under AWA by showing that the petitioner does not pose a risk to the beneficiary. For example, you can argue that the beneficiary is not a child and does not have any children. You can also attach any of the following that may help to show you pose no risk of harm to the beneficiary:

• Proof you completed all counseling or rehab programs
• Certified letters and psychological reports showing you are rehabilitated
• Evidence you take part in helping the community, like through Church programs

Proof of rehabilitation is helpful to your case but USCIS does not require it. The burden is on the U.S. petitioner to show that he poses no risk of harm to the beneficiary, and so creative ideas need to be implemented to show USCIS that you meet this standard, in addition to the above suggestions from USCIS.

U.S. petitioners need to know that if the USCIS grants the waiver and allows the case to continue, the petitioner's criminal information will be shared with the beneficiary. If the beneficiary is not aware of the petitioner's criminal history, then possibly the case can be denied for lack of bona fide marriage, because in USCIS' view a real relationship would include the couple sharing information about any criminal background that exists.

Please go to www.needimmigrationhelp.com and contact Lena Korial-Yonan, Esq. if you need help with this type of case.

---

THIS ARTICLE OR ANY PORTION OF THIS ARTICLE MAY NOT BE RE-PRINTED WITHOUT EXPRESS PERMISSION OF THE AUTHOR. NO EXCEPTIONS.