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;
- 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).
AWA § 111(7) defines “specified offense” against a minor as one involving any of the following:
- 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 in a sexual performance;
- Solicitation to practice prostitution;
- Video voyeurism and described in section 1801 of title 18, United States Code;
- Possession, production or distribution of child pornography;
- Criminal sexual conduct involving minor or the use of the internet to facilitate or attempt such conduct; or
- 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
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.
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).
- 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.
- 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, https://travel.state.gov/content/dam/vis… (last visited Feb. 12, 2020).
- Voyeurism includes “peeping Toms”, or looking.
- We can look at possible ways to qualify offenses in a separate post.