Brian D. Lerner Immigration Attorney & Deportation Lawyer Blog

My USC Fiancee has a Sex Crime Against a Minor – Can I still get my Fiancee Petition?

Generally, a United States Citizen who has been convicted of “a specified offense against a minor” as defined in  the Adam Walsh Child Protection and Safety Act of 2007 is prohibited from petitioning for his or her fiancé(e), unless the Secy. of DHS, in his or her “unreviewable discretion,” determines that the USC poses no risk to the beneficiary.

A  “specified offense against a minor” as an offense against a minor that involves any of the following: (A) kidnapping (unless committed by a parent or guardian); (B) false imprisonment (unless committed 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; (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 by its nature that is a “sex offense against a minor” refers to and therefore encompasses the crimes specified in the Adam Walsh Act including: a criminal offense that has an element involving a sexual act or sexual contact with another; a criminal offense that is a specified offense against a minor; a federal offense involving these items or (v) any attempt or conspiracy to commit an offense described above.

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” are “offenses involving consensual sexual conduct.” The Adam Walsh Act defines this as “an offense 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.”

USCIS views the list of offenses covered by the Adam Walsh Act  as “stated in relatively broad terms” and takes into account that these offenses may be named differently in a wide variety of federal, state, and foreign criminal statutes.

There is a way to obtain a  Waiver of the Criminal Bar under the Adam Walsh Act when applying for a K-1 Fiancee Visa. The 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 must take into consideration that the purpose of the Adam Walsh Act is “to ensure that an intended alien beneficiary is not placed at risk of harm” from the petitioner.

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.”

Petitioner must submit relevant evidence that demonstrates, beyond a reasonable doubt, that s/he poses no risk to the safety and well-being of the beneficiary. The burden is upon the petitioner to rebut and overcome the presumption of risk. 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.

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.  Unless the adjudicator can conclude that the petitioner poses no risk to the beneficiary, s/he must deny the petition. In the “rare instance of an approval recommendation” the adjudicator must document that two levels of supervisory concurrence were made by a field supervisor at the GS-13 level or above and a field supervisor at the GS-15 level or above. This shows it will not be impossible to get granted, but very difficult.

There is a presesumption of Risk Where Intended Beneficiary is a Child—“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. Therefore, if a K-2 is involved and a child will be coming to the U.S., this provision will be analyzed.

Where children are not involved as beneficiaries, there is no presumption against the petitioner. However, the adjudicator must “closely examine” the petitioner’s offense because past acts of spousal abuse or other acts of violence must be considered. 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.

Filed under: Immigration Attorney | Tagged: K-1, K-1 fiancee petition, K1, rape | Leave a comment »