Immigration and the Adam Walsh Act

Family Members

Generally, US citizens have a right to immigrate these foreign family members:

  • fiance and fiance’s minor dependent children;
  • spouse and spouse’s minor dependent children;
  • parents;
  • siblings;
  • adult or married children.1

LPR green card holders may also immigrate these foreign family members:

  • spouse and minor dependent children;
  • unmarried adult children.2

The majority of visas issued every year are for family members.3  Immigration and Nationality Act §§ 204(a) and 101(a) create the system of processing for family-based immigration to work.

The Statutory Prohibition

Title IV of the AWA modified the scope of INA §§ 204(a) and 101(a)(15)(K). It made it so the procedural filing mechanisms do not apply to an immigration petitioner who is convicted of a “specified offense against a minor.” The modifications read like this:

The filing procedures shall not apply to a US citizen LPR who has been convicted of a specified offense against a minor, unless the Secretary of Homeland Security, in the Secretary’s sole and unreviewable discretion, determines that the citizen or LPR poses no risk to the alien with respect to whom a petition is filed.

Consequently, neither a U.S. citizen nor LPR may file a petition to immigrate a foreign family member if that petitioner has been convicted of a specified offense against a minor child; that is unless the Secretary first determines “no risk” to the beneficiary. A minor child is defined to be someone under 18 years of age. AWA § 111(14).

Specified Offenses

AWA § 111(7) defines “specified offense” against a minor as one involving any of the following:

  1. An offense (unless committed by a parent or guardian) involving kidnapping;
  2. An offense (unless committed by a parent or guardian) involving false imprisonment;
  3. Solicitation to engage in sexual conduct;
  4. Use in a sexual performance;
  5. Solicitation to practice prostitution;
  6. Video voyeurism and described in section 1801 of title 18, United States Code;
  7. Possession, production or distribution of child pornography;
  8. Criminal sexual conduct involving minor or the use of the internet to facilitate or attempt such conduct; or
  9. Any conduct that by its nature is a sex offense against a minor.

None of the subsections entail physical violence as an element of the offense.

On its face, subsections (C), (D) and (I) seem to require a prurient interest on the part of the petitioner. Subsections (A), and (B) do not speak of prurient interest. Subsections (E), (F)4 and (G) do not necessarily involve a prurient interest on the part of the petitioner. Subsection (H) does not appear to require a prurient interest, but rather, any sort of sexual conduct involving a minor. Subsection (H) is unclear. As such, there is an unexplained disconnect between a sex offense involving a minor under 18 years of age and a safety risk to family members. Even the legislative record fails to comment on the potential for violence to an adult family member, given a specified offense relating mainly to sex.

What is a Conviction?

The term “convicted” can include certain types of juvenile delinquency findings. Juvenile delinquency is not normally considered a crime, but rather is a civil matter due to the young age and maturity of the perpetrator. In addition, It can include admissions of guilt where punishment was imposed by a court of law. Convictions are not limited to activities in the US.

The Secretary of Homeland Security delegated its duties under the AWA to the United States Immigration and Citizenship Services (“USCIS”). See, 8 CFR 2.1.

USCIS Application of Statute

Aytes Memo

On February 8, 2007, Acting USCIS Deputy Director Michael Aytes issued a policy memorandum announcing legal standards for the AWA (“Aytes Memo”). To avoid the denial of a family-based visa petition, a petitioner who has been convicted of a specified offense against a minor must submit evidence to establish beyond any reasonable doubt that he or she poses no risk to the “safety and well-being of the beneficiary….”

The term “no risk” is interpreted to mean a question of whether the “petitioner poses any risk to the intended beneficiary.” The petitioner carries the burden of proof. The Aytes Memo does not further define terms.

USCIS considers the evidence submitted by a petitioner. That consideration is based on factors the USCIS deems relevant in determining whether the petitioner poses no risk to the safety and well-being of the beneficiary:

  • the relationship between the petitioner and beneficiary;
  • the age and, if relevant, the gender of the beneficiary;
  • whether the petitioner and beneficiary will be residing together or within close proximity to one another;
  • the nature and severity of the petitioner’s specified offense against a minor;
  • the petitioner’s criminal history;
  • the degree of the petitioner’s rehabilitation or subsequent behavior modification which may alleviate any risk the petitioner poses to the beneficiary.

The Neufeld Memo

On September 24, 2008, USCIS issued an amendment (the “Neufeld Memo”). Any recommended approval requires supervisory review. Notably, any denials are not also subject to supervisory review.

What is missing from two memos (together, “Standard Operating Procedures”) is guidance to help identify a governmental health and safety concern with specificity as applied to a case. The Aytes Memo admits the AWA covers a broad range of possible crimes:

The statutory list of criminal activity in the Adam Walsh Act that may be considered a specified offense against a minor is 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.  Aytes Memo at p. 3.

But, it does not comment upon those crimes to help determine which crimes are more of concern than others for immigration purposes.5 The age of consent is under 18 in a number of states.  Many sex offenses are based in culture.


Once they detect the AWA, the USCIS will issue a Request for Evidence / Notice of Intent to Deny. The template notice advises the petitioner that there is reason to believe the petitioner falls under the AWA.  It requires that the petitioner show either 1) that he or she does not fall under the AWA, or 2) that he poses no risk to the foreign beneficiary.  The NOID does not articulate a safety concern that is case-specific. The USCIS does not inform petitioners of particularized concerns.

The most recent denial notices summarize in detail the documentation presented, organized according to the criteria outlined in the Aytes Memo, then simply state that the petitioner has not met his burden.  Recent denials concluded, in essence, “due to the nature and severity of the offense and [e.g.] a breach of trust, …” the USCIS determines that the “petitioner has not met his burden of proof.”

The Aytes criteria itself as well as other trappings put forward in the SOPs seem to prompt denials without a proper foundation for consideration by USCIS.


As insurmountable as these obstacles seem, our firm has obtained multiple USCIS waivers under the AWA.  On the whole, AWA approvals nationwide are rare. We’ve been cautiously fortunate in working with clients, and gave some thoughts on what makes a successful case in a separate post. Part of our consideration in working on cases includes other options for the foreign family member to immigrate to the U.S. Naturally, we also examine the possibility of litigating the Adam Walsh Act.

If you were convicted of a specified criminal offense involving a minor under the age of 18, it will be difficult to obtain a waiver for your family member to immigrate. The Adam Walsh Act prevents US citizens and green card holders from participating in the immigration process. Even so, waivers are available, and there can be success. Please consider calling our firm if you would like to discuss the chances of success and possible options for your family.

Call U.S. toll free 1-888-483-0311 (outside U.S. +1 212-483-0311)

  1. INA §201(b)(2)(A)(i) (regarding immediate family members); INA §101(a)(15)(K)(regarding fiancees and their dependents); INA §203(a)(1) and (3) (regarding sons and daughters); INA §203(a)(4) (regarding siblings).
  2.  INA §204(a)(1)(B)(i)(I). See also INA §203(a)(2)(A) (regarding spouses or unmarried dependent minor children under 21). INA §203(a)(2)(B) (regarding unmarried sons or daughters).  Non-immediate relatives can include their dependent spouses and children.
  3.  See, U.S. Dep’t of State, Visa Office 2019 Annual Report, Table I Immigrant and Nonimmigrant Visas Issued at Foreign Service Posts Fiscal Years 2015 – 2019… (last visited Feb. 12, 2020).
  4.  Voyeurism includes “peeping Toms”, or looking.
  5.  We can look at possible ways to qualify offenses in a separate post.


  1. I’m currently engaged to my fiance who lives in Indonesia. I’m 35 and she is 36. I’ve known her for 13 years and we met online. We video chat and text and call each other everyday with all of our free time. We have recently engaged 7 months ago. Unfortunately we have not met in person yet, but we have been working towards a travel visa for her to come here and spend a few months with me. She knows my case and Everything about me but we still love each other very much. She is my soul mate and I cannot see myself with anyone else but her. My case involved a minor child in 2013. I was sentenced in 2013 and am currently enrolled and regularly attending sexual offense counseling once a week. I’m seeking help and I’m willing to pay to ensure that my fiance can come here to marry me. If I could go to Indonesia I would, but I’m not sure I’m allowed do to the Megan act. We are desperate for help. I understand that not all immigration cases of individuals with my charge have success, but I am willing to give it a try for love. I also understand that it can take up to 3 years for the process to be finalized with the decision made from the Secretary. I have researched this extensively and I am hoping to here from u soon. I Currently work 3 jobs and make about 45000 a year. I live in a 3 bedroom 2 full bath house. My counseling has been going very well. While I was incarcerated I obtained my associates degree from Ashland University in the Art of Communication and am still seeking to finish my bachelor’s degree with my minor studies in business administration and sociology. I’ve also graduated the vocational program there in carpentry and I obtained my electricians license. I was also in treatment for sexual offense prevention while incarcerated. So please, if its even a minoot possibility, it’s worth it for us. Thank you for your time in this matter, and I look forward to hearing from you. God bless!

    • Hi John, sorry to hear about your issues. Listen, I’m having the same problem. I married my wife in 2009, in her country of Honduras. I’m a U.S. citizen, and my offense happened in 1987. I tried twice to petition my wife here with an I-130 Visa, but both times they denied me with the same excuse they give everyone. That they can’t say ‘beyond a reasonable doubt that I’m not a risk to my spouse. We all know that this is just discrimination and a way to cause us more punishment for the wrong choices that we made in our past. Sure we all want to just be with the people that we love, but they don’t care about that. They only care about making our lives more miserable than what it is. I can’t give you any advice to what you can do other than hire an attorney, but bases on how much power USCIS has, it appears that the attorney’s are at the mercy of them. I don’t know what else to say other than, I will keep you in my prayers, along with everyone else that is having this issue. May Jehovah bless your efforts.

  2. John, you are right in that it is a slow process and not guaranteed that you will succeed. I am currently going through the process myself. I would suggest two things: First, find a good immigration attorney who is well-versed with AWA cases. I have retained Allan Lolly in San Diego who has had good success. Second, find a third country where you can meet face to face. Hong King used to be a great place for this but not so sure, lately. Covid has also made things difficult. Myself, I just returned from Turkey, and Europe is generally easier to visit than some parts of the world. I relate to what you’re going through. It’s not an easy road for sure, and I’m glad you found this person to share a love with. There is no trick or special method other than perseverance. Best of luck to you both.

    • I have been in the process for 4 1/2 years filed a writ of mandamus. USCIS put us in a black hole and never made a decision regarding my case. Since I pushed the issue I was DENIED and was given a response of haven’t proved beyond a reasonable doubt I am no risk.

      The real question is, Why is USCIS given the power of discretion to deny which is an emotion of feelings toward a past sex offender verses facts that my crime happened over 33 years ago? especially when my crime happened in 1988 and congress made it into law in 2006. Big Difference. Again, is it fair to use a crime against a person after time has been served. To effect his whole life. My wife is Liberian, and we have been married for 5 years. USCIS is being unfair to me and my wife. She has 2 daughters in Liberia separated for 7 years.

      • How Jeff. I am In same situation as yours. Have you been able to fight this case. Please let me know.

        • Hey Dee, hope you are doing well. So what’s your status? If you’ve read the post that I left for John, Darren and Jeff then you know my history and dilemma. Have you tried or had any success with your situation? I wish that we could all just have a phone conversation and support each other through all this. Sometimes it’s good to hear the pain and encouragement of supporting each other. Well listen I hope things work out for you and everyone else, I will keep you in my prayers, and please pray for me also.

      • Hey Jeff, yeah, same deal brother. My conviction was back in 1987. It was the only kind of that nature. I married my wife in her country of Honduras in 2009, I applied for her via an I-130 in 2010 and they denied it, I reapplied in 2013 and this time I presented them with a psyche eval, a low score offender risk factor by two different psychologist and they still denied me. To make matter worse, in 2016 I went to visit my wife, and Honduras sent me right back home after I step off of the plane! As of April 2022, I am no longer required to register as a RSO, and I’m going to try once again to visit my wife but I’m really scared. This really sucks for all of us, and it appears that there is little to nothing that we can do about it other than to find a country that we allow us to move and live in. As for Allan Lolly, I have spoke to him once years ago and he truly seems like he wants to help us, but as he admits, there’s little to nothing he can do other than give it his best shot. Yes, the law needs to be abolished, it needs to be taking out of the hands of USCIS. From what I gather, all sex offenders cases are sent to the Vermont Office for processing and Vermont is a Republican state that has no concern about people with our type of history. I really don’t know what else to say. It hurts. It really really does. Just keep up the good fight. We all should continue fighting, don’t give up and try not to break up. Stay strong. May Jehovah bless you and your family

    • Hey Darrin, I just was reading your post. Just wanted to see how things were going. This is really difficult for all of us. The pain and anxiety with all of this is overwhelming. I spoke to Allan years ago about my case and at the time he didn’t have a lot of experience nor did he have any approved waivers, but it seems that he is finding some victories with his waivers. I hope and pray that you are one of them. You didn’t mention much about your history. May I ask when was your offense and are you still registering? My offense occurred in 1987 and up until April of this year 2022, I am no longer a RSO. You would think that USCIS would take that into consideration, but as I told John Perry, I don’t think it’s a matter of how much you prove to them that you are not a ‘risk’ to your spouse or family member, it’s them being prejudice to our history. It’s really, really sad. I wish you the best with your endeavors.

  3. Hello. My fiance got a charge as a sex offender for an indecent exposure, he was in his own house when the neighbour saw him. We are thinking about getting married and applying for a visa cr1 so we could stay together. He represents no risk to me, so I would like to know if someone knows more information about if USCIS would accept our visa. I am afraid to apply for this visa and get denied even if his crime was a misdemeanour.

  4. All i can suggest, do not get marry with him. and if you didnt apply get do NOT! there is no chance for him to be a sponsor for you. İf you still want to be with him, try to get other visas (F1, language school visa, working visa or something) we made that mistake and applied. No one didnt tell us about it even our lawyer.. please dont do that to yourself, its like torture.

  5. Hey ZD I wish we can have a conversation, howw do we go about it. It’s so killing nd my thoughts everyday is dangerous, I sometimes wana harm myself.

    • Hi Dee,
      I’m so sorry that you have to go though this ordeal and I’m also worried that this situation may get the best of you. You shared that you are looking to have a conversation with others about your situation. ACSOL offers an emotional support group for people on the registry and their loved ones. This group is a forum where we can share our experiences, strengths and hopes with each other and find mutual support. It’s not a group that discusses legal aspects of individual cases, but is focused on how the registry affects you and your loved ones. Please consider joining the group. You can reach the group at:
      Let me know that you found us through FightAWA and we’ll set up a brief phone call. We’d love to have you in the group.

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