The Walsh Waiver and How to Argue it
Question: I am going to marry my husband and I wanted him to petition me. However, I have been told because he has a conviction for viewing child pornography on the internet that he cannot petition me and I need some kind of waiver. Can you explain?
Answer:A United States Citizen (USC) who has been convicted of “a specified offense against a minor” as defined in §111(7) of the Adam Walsh Child Protection and Safety Act of 2007 is prohibited from petitioning for a fiancé(e), unless DHS in its “unreviewable discretion,” determines that the USC poses no risk to the beneficiary.
Question: What are the ‘specified offenses’?
Answer: A “specified offense against a minor” is an offense against a minor that involves any of the following: (A) kidnapping (unless by a parent or guardian); (B) false imprisonment (unless by a parent or guardian); (C) solicitation to engage in sexual conduct; (D) use in a sexual performance; (E) solicitation to practice prostitution; (F) video voyeurism as described; (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; or (I) any conduct that by its nature is a “sex offense against a minor.”
The last provision—conduct that by its nature is a “sex offense against a minor”—encompasses crimes including: (i) an offense that has an element involving a sexual act or sexual contact with another; (ii) an offense that is a specified offense against a minor; (iii) a federal offense or (v) any attempt or conspiracy to commit an offense described above.
Question: What if the conviction was not in the United States?
Answer: The “sex offense” provision applies to foreign convictions unless they were not obtained “with sufficient safeguards for fundamental fairness and due process for the accused.” Sex offense convictions “under the laws of Canada, United Kingdom, Australia, and New Zealand are deemed to have been obtained with sufficient safeguards for fundamental fairness and due process.” The other exception to the definition of “sex offense” under Adam Walsh §111(5)(C), are “offense[s] involving consensual sex … if the victim was an adult, unless the adult was under the custodial authority of the offender at the time of the offense, or if the victim was at least 13 years old and the offender was not more than 4 years older than the victim.
Question: What type of authority does the Immigration Officers have to grant or deny a Walsh Waiver?
Answer: Waiver of the Criminal Bar under the Adam Walsh Act—Waiver under this provision is in the “sole and unreviewable discretion” of DHS upon a determination that the “petitioner poses no risk to the beneficiary.” USCIS interprets the ‘poses no risk to the beneficiary’ provision to mean that the petitioner must pose no risk to the safety or well-being of the beneficiary, which includes the principal beneficiary and any alien derivative beneficiary.
Question: What type of evidence is needed for this Waiver?
Answer: The petitioner must submit evidence that demonstrates, beyond a reasonable doubt, that he or she poses no risk to the safety and well-being of the beneficiary. Proof may include: (1) certified records indicating successful completion of counseling or rehabilitation programs; (2) certified psychological evaluations attesting to rehabilitation or behavior modification; (3) evidence of service to the community; (4) certified copies of police and court records relating to the offense; and (5) news accounts and transcripts describing the nature and circumstances of the offense.
Proof of rehabilitation may be submitted but it is not required above and beyond proof that a petitioner poses no risk to the beneficiary.
Question: What type of criteria does USCIS to make the decision on this Waiver?
Answer: USCIS shall consider all known factors that are relevant to determine whether the petitioner poses any risk including: (1) the nature and severity of the offense; (2) petitioner’s criminal history; (3) the nature, severity, and mitigating circumstances of prior arrests or convictions of violent or criminal behavior that may pose a risk; (4) the relationship between the petitioner and the beneficiary and derivative beneficiaries; (5) the age and gender of the beneficiary; (6) whether petitioner and beneficiary will be residing in the same house; and (7) the degree that rehabilitation or behavior modification alleviate the risk.
Question: What if the beneficiary of this petition is a child?
Answer: 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, the adjudicator must automatically presume that risks exists” where the intended beneficiary of the petition is a child. The burden is on the petitioner to rebut and overcome the presumption
Where no children are beneficiaries, there is no presumption against the petitioner. However, the adjudicator must “closely examine” the petitioner’s offense and consider past acts of spousal abuse or other acts of violence. The fact that past acts were perpetrated only against children or that the petitioner and beneficiary will not be residing in the same household or in close proximity are not alone sufficient to find no risk to an adult beneficiary.
Make sure you get an attorney who can prepare a very persuasive attorney cover letter, declarations, affidavits and all of the necessary supporting evidence to try to get the Walsh Waiver completed.
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