Adam Walsh Child Protection and Safety Act of 2006 Bars Convicted Sex Offenders from Having Family-Based Petitions Approved
Most U.S. citizens and lawful permanent residents can easily establish that they can bring a foreign family member to the U.S. Any obstacles usually involve the eligibility of the foreign family member, such as concerns over their admissibility or the legitimacy of their relationship to the U.S. sponsor. However, the Adam-Walsh Child Protection and Safety Act of 2006 places certain limitations on the eligibility of U.S. citizens or permanent residents to petition for foreign family members if they have committed certain crimes. USCIS will conduct a background check on the U.S. sponsor to determine whether they have a record of a crime covered by the Adam Walsh Act. If they do, USCIS almost certainly will deny the petition (Form I-130).
This would prevent the foreign national from coming to the U.S. on this petition, even if they are otherwise admissible. They still might be able to come to the U.S. through a petition by another U.S. sponsor who has not committed a crime covered by the Adam Walsh Act.
Crimes Covered by the Adam Walsh Act
The Adam Walsh Act applies to crimes committed against children, generally defined as victims under 18. Most of these offenses have a violent or sexual nature. They include solicitation, solicitation for prostitution, child pornography, voyeurism, internet sex crimes involving a minor, kidnapping, and false imprisonment, among others. Kidnapping and false imprisonment are not included if a parent committed the crime. The Adam Walsh Act also covers any convictions in foreign countries of equivalent crimes, unless the legal system in the foreign country did not give the defendant a fair trial.
An exception may apply if the U.S. sponsor can show the Department of Homeland Security (DHS) that the do not pose any risk to the foreign national whom they are sponsoring. They must demonstrate that they qualify for this exception beyond a reasonable doubt. This is the highest burden of proof in the U.S. legal system, and it usually applies in criminal cases. DHS has sole discretion to decide whether the U.S. sponsor has met this burden. Its decision cannot be appealed.
Showing Eligibility for the Exception
Evidence that may help the U.S. sponsor qualify for the exception will consist of any documents that show that they have turned a new leaf after committing the offense, or that the circumstances leading to the conviction were less serious than they seem. These documents should be signed affidavits, which means that they are submitted under oath, or certified copies of records. The U.S. sponsor may want to provide the police report of the incident that led to their arrest, any trial transcripts, any news reports of the incident, and any documents showing that they have successfully completed rehabilitation. These might include completion certificates for therapy programs or counseling courses, medical records from psychologists or psychiatrists, and records of participation in community organizations. If the U.S. sponsor has served in the U.S. military since that time, providing a certification of this service may help persuade DHS.
You should promptly consult an immigration lawyer if you are in this position. If your initial application for the exception fails, you will not get a second chance. A lawyer also can advise you on whether there may be a better way to bring your family member to the U.S., such as finding another sponsor.