Persons convicted of certain sex crimes may not petition family members

If you’re engaged or even married to a US citizen or a lawful permanent resident who was convicted of certain sex crimes against children, he may not be able to petition you or any other family member, under the recently enacted Adam Walsh Child Protection and Safety Act of 2006 ("Adam Walsh Act").

That law, signed by President Bush on July 27, 2006, is designed to protect minors (under 18 years of age) from sexual exploitation and violent crime, child abuse, and child pornography, promote Internet safety, and to honor the memory of Adam Walsh (a 6 year old boy from Florida, who was kidnapped and killed), as well as other children who were crime victims.

Under the Adam Walsh Act, US citizens and lawful permanent residents (green card holders) who have been convicted of any "specified offense against a minor" are prohibited from filing any family-based immigrant petition on behalf of any beneficiary, unless the Secretary of Homeland Security (DHS) determines (in DHS’s sole and unreviewable discretion) that the petitioner poses no risk to the beneficiary. In other words, the petitioner would need to obtain some sort of "waiver" in order to petition family members.

The Adam Walsh Act also prohibits US citizens convicted of these crimes from petitioning spouses or fiancés for a "K" non-immigrant visa (i.e.: may not file a fiancée visa).

The term "specified offense against a minor" means an offense against a minor that involves any of the following:

(A) Kidnapping

(B) False imprisonment

(C) Solicitation to engage in sexual conduct

(D) Using a minor in a sexual performance

(E) Solicitation to practice prostitution

(F) Video voyeurism (watching the child on a web-cam)

(G) Possession, production, or distribution of child pornography

(H) Criminal sexual conduct involving a minor, or the use of the internet to facilitate such conduct

(I) Any conduct that is by its nature a sex offense against a minor

The Adam Walsh Act applies to all petitions that are pending on or after the date of enactment (July 27, 2006).

In a related matter, the President also signed into law the Violence Against Women and Department of Justice Re-Authorization Act of 2005 (VAWA 2005). Included within VAWA 2005 is the International Marriage Broker Regulation (IMBRA), which provides that a US citizen who files a fiancée visa (K-1), or alien spouse (K-3) petition, must submit, along with his or her petition, information on any criminal convictions for any of the following crimes:

(A) Domestic violence, sexual assault, child abuse and neglect, dating violence, elder abuse, and stalking.

(B) Homicide, murder, manslaughter, rape, abusive sexual contact, sexual exploitation, incest, torture, trafficking , peonage (slavery), holding hostage, involuntary servitude, slave trade, kidnapping, abduction, unlawful criminal restraint, false imprisonment, or an attempt to commit any of these crimes.

(C) Crimes relating to a controlled substance or alcohol where the petitioner has been convicted on at least three occasions and where such crimes did not arise from a single act.

Under IMBRA, if the petitioner was convicted of any of these crimes, he will need to submit certified copies of all court and police records showing the charges and the disposition for every conviction. The Embassy will also disclose this information to the beneficiary during the consular interview.

IMBRA also limits the number of fiancée petitions a citizen can file or have approved. If the petitioner has filed two or more K-1 fiancée petitions at any time in the past, or previously had a K-1 visa petition approved within two years before filing the current petition, the petitioner must request a "waiver" of the limitation on the number of fiancée petitions.

IMBRA differs from the Adam Walsh Act in that the Adam Walsh Act primarily dealt with convictions for certain specified crimes against children. IMBRA deals with specified convictions against any person, which demonstrate that the petitioner may have a history of violence or drug or alcohol abuse. The US Government wants to make sure that a citizen with a violent criminal past does not petition and does bring over a fiancée and then batters or beats her.

In the past, it had always been important to evaluate the beneficiary’s background (or criminal conduct). These new laws now require some sort of evaluation of the petitioner’s background.

That is why it is important that you seek the advice of a reputable attorney in connection with family petitions, because there are now so many issues and requirements that could affect the success of your case.

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