The Adam Walsh Child Protection and Safety Act
U.S. Congress passed the Adam Walsh Child Protection and Safety Act to protect children from sexual abuse. While this act established the national sex offender registry, it also modified the immigration law by prohibiting sex offenders from sponsoring family-based immigration. This Act specifically prohibits U.S. Citizens and Lawful Permanent Residents who been convicted of any “specified offense against a minor” from filing a family-based immigrant petition on behalf of any beneficiary.
When does the Adam Walsh Act Apply?
The Act applies to family-based petitions when the petitioner has a conviction that counts as a “specified offense against a minor.” The conviction may be counted even if it preceded the enactment of the Adam Walsh Act in 2006. The Act is intended to protect minors from sexual crimes.
The term “specified offense against a minor” includes:
- False Imprisonment;
- Solicitation to engage in sexual conduct;
- Use in sexual performance;
- Solicitation to practice prostitution;
- Video voyeurism (use of a webcam to watch children)
- Possession, production, or distribution of child pornography;
- Criminal sexual conduct involving a minor, or the use of the internet to facilitate, or attempt such conduct; and
- Any conduct that by its nature is a sex offense against a minor.
This means that if you were convicted of any of the above crimes that are considered a “specified offense against a minor,” then you cannot petition for a spouse, fiancé, minor children, unmarried son or daughter, and parents unless the Secretary of Homeland Security determines, in sole and unreviewable discretion, that you pose no risk to the beneficiary. Essentially, if the USCIS wrongfully views you as a sex offender, you will not be allowed to sponsor your family as immigrants. If you are the beneficiary of a sponsor now charged as a sex offender, your status here is in jeopardy. If you are in either of these situations, you need strong and effective legal defense and the help of a qualified immigration lawyer as early on in the case as possible. For a free initial consultation, please call or email JCS Immigration and Visa Services. Our Los Angeles immigration attorneys can help you!
USCIS discovered that I have a conviction; what now?
If at any time, USCIS becomes aware that the petitioner has a conviction for a specified offense against a minor. USCIS will typically send a Request for Evidence (RFE) or a Notice of Intent to Deny (NOID). Approved petitions can also be revoked.
As the petitioner, you bear the burden of proving that you have not been convicted of a “specified offense against a minor.” The adjudicators may apply the “circumstance-specific” approach, which permits an inquiry into the facts and conduct underlying the conviction to determine if it is a disqualifying offense.
In your defense, you must include evidence of rehabilitation and other evidence that proves that you pose no risk to the beneficiary. This evidence typically includes:
- Certified records showing successful completion of counseling or rehabilitative programs;
- Certified evaluations by qualified mental health professionals;
- Evidence of positive contributions to the community;
- Certified copies of arrests and charging documents;
- Affidavits from friends, family, and the beneficiary.
Unless the adjudicator can conclude, based on the evidence, that you pose no risk to the beneficiary, the adjudicator must deny the petition. The Board of Immigration Appeals lacks jurisdiction to review a “no risk” determination by the United States Citizenship and Immigration Services, including the appropriate standard of proof to be applied.
If you have a record that would implicate the Adam Walsh Child Protection and Safety Act, it is best to meet with an immigration attorney before submitting anything to immigration. At JCS Immigration and Visa Services, our Los Angeles immigration attorneys focus exclusively on the immigration law, immigration reforms, and immigration cases that may affect you. For confidential and expert legal counsel, call or email for your free initial consultation.