What is the Adam Walsh Act?
The Adam Walsh Child Protection and Safety Act of 2006 prevents U.S. citizens and permanent residents who are convicted of “specified offenses against a minor,” defined as an individual who has not attained the age of 18 years, from filing a visa petition on behalf of a close family member. If the petitioner is alegal permanent resident rather than a U.S. citizen, the person will be referred to removal proceedings to see if he or she is deportable. As both the visa petitioner and the beneficiary are potentially impacted under the Adam Walsh Act, having a knowledgeable immigration attorney becomes doubly as important.
Section 111 of the Adam Walsh Act defines “specified offense against a minor” as any of the following nine offenses committed against a person under the age of 18:
- An offense (unless committed by a parent or guardian) involving kidnapping
- An offense (unless committed by a parent or guardian) involving false imprisonment
- Solicitation to engage in sexual conduct
- Use of the minor in a sexual performance
- Solicitation to practice prostitution
- Video voyeurism as described in 18 U.S.C. Section 1801
- 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
- Any conduct that by its nature is a sex offense against a minor
A conviction for any one or more of these nine crimes may bar a U.S. citizen or legal permanent resident from filing a petition for his or her parent, spouse, children, stepchildren, and siblings.
“No risk” exception
The Aytes Memorandum, published by the U.S. Citizenship and Immigration Services (“USCIS”), lists seven factors that adjudicators must consider in determining whether a petitioner poses a risk to his or her intended beneficiary:
- The nature and severity of the petitioner’s specified offense(s) against a minor, including all facts including all facts and circumstances underlying the offense(s)
- The petitioner’s criminal history
- The nature, severity, and mitigating circumstances of any arrest(s), conviction(s), 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
- The relationship of the petitioner to the principal beneficiary and any derivative beneficiary
- The age and, if relevant, the gender of the beneficiary
- Whether the petitioner and beneficiary will be residing either in the same household or within close proximity to one another
- 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 Board of Immigration Appeals (“BIA”), the highest administrative agency for interpreting and applying immigration laws, has held that visa petitioners bear the burden to demonstrate that he or she is not ineligible to file a visa petition on behalf of a family member under the Act.[1] Furthermore, the BIA has held that application of the Adam Walsh Act to convictions that occurred before its enactment do not have an impermissible retroactive effect.[2] Finally, although the Adam Walsh Act provides an exception, it is only allowed if the adjudicator makes a discretionary decision that the U.S. citizen or legal permanent resident petitioner does not present a risk to the petitioned relative despite the conviction.
Given the considerations above, it is highly recommended that you speak with a knowledgeable professional before having a U.S. citizen or permanent resident with any criminal convictions of certain crimes against minors filing a visa petition on your behalf. Contact an immigration attorney at Yekrangi & Associates today.