I-130 Petitioner’s Criminal Record & How It Affects Your Case
In America, a criminal conviction not only makes it hard to find employment and housing, but it can affect immigration. Not surprisingly, USCIS looks very closely at the types of felony convictions a US citizen has before granting immigration benefits. Why? Because if you have committed a serious offense against a minor, they won’t allow you to bring someone to the US that may become a victim.
Being convicted of other crimes such as assault, theft, drug trafficking shouldn’t affect your ability to petition a family member. As long as you have served your penalty and are not currently wanted by authorities, your case should be straightforward.
USCIS runs a standard background check on both the petitioner (US citizen/LPR) and the beneficiary (foreign spouse). The results of the background check determine your eligibility for a US visa for your spouse.
What Convictions Must The US Citizen Disclose?
If you’re even thinking about not disclosing your criminal history to USCIS, think again! They will find out one way or another. If you’re unsure what’s in your criminal record, you should go to your local police station and request a copy. This will help you assess what information might hurt your case.
Convictions related to crimes against children will need to be disclosed. Below, I’ll discuss the Adam Walsh Act and how immigration authorities make decisions on who will need a waiver before a visa is approved.
What Is The Adam Walsh Act and How Does It Affect Me?
The Adam Walsh Act (AWA) was passed in 2006 by President Bush. It organizes sex offenders into three categories:
- Tier 1: Less Serious Offenses
- Offenders must update their whereabouts every year with 15 years of registration. Your information is not publicly disclosed
- Tier 2: Serious Offenses
- Offenders must update their whereabouts every six months with 25 years of registration. If you fail to register and update your information you can be charged with a felony under the law. States are required to publicly disclose this information to protect the public.
- Tier 3: Most Serious Offenses
- Offenders must update their whereabouts every three months with lifetime registration requirements. Failure to register and update your information can result in a felony conviction under the law. States are required to publicly disclose this information to protect the public.
- Tier 1: Less Serious Offenses
Harry is a U.S. citizen who pled guilty in 2009 to soliciting a 17-year-old girl to engage in sex. In 2012 he submits a visa petition on behalf of his foreign wife. Immigration authorities will run an IBIS check on his name to discover the prior conviction. His visa petition will be denied, unless he is able to get a waiver based on proving that he is not a danger to his wife.
The I-130 petition is more complicated when there are convictions that fall under the Adam Walsh Act. It will cause delays in processing and background checks.
When the US citizen lives abroad with their foreign spouse and uses Direct Consular Filing (DCF), the consulates are required to add a 6-month residence requirement. This means that the US citizen must live in the foreign country for at least 6 months and be able to prove this when petitioning their spouse.
The Adam Walsh Act also limits the rights of citizens or permanent residents to petition to immigrate their spouse or other relatives to the U.S. if the petitioner has a listed child sex abuse conviction. The petition will not be approved unless Department of Homeland Security (DHS) determines in its discretion that there is no risk of harm to the beneficiary or accompanying children.
Proving that you aren’t a risk will be difficult because the law states you must show “beyond any reasonable doubt”. This requirement is nearly impossible to meet and is unique to US immigration. Secondly, if there are accompany children that will also immigrate to the US, this risk is always presumed whether the petitioner will live with the child or not. Finally, USCIS manual states that approvals should be rare and many cases have gone to court for appeal.
If your case is ultimately denied, there is no option to appeal the decision except in very limited circumstances.
Conviction For Specified Offense Against a Minor
The below convictions will fall under the Adam Walsh Act and will cause a denial of the family based visa unless you are approved for a waiver.
- Kidnapping (unless you are the parent or guardian).
- False imprisonment (unless you are the parent or guardian).
- Engage in sexual conduct with a minor.
- Solicitation of minor for prostitution.
- Video voyeurism.
- Possession, production, or distribution of child pornography.
- Criminal sexual conduct involving a minor.
- Use of the Internet to facilitate or attempt sexual conduct with a minor.
- Any conduct that is sexual in nature against a minor.
An approved I-130 petition doesn’t necessarily mean that the CR1 or IR1 spouse visa will also be approved. USCIS has been known to revoke an approved I-130 petition if they find evidence of a conviction uner the Adam Walsh Act. This is why you should be honest about any past convictions as the petitioner. There is no point in lying about your past only to have it dug up later by USCIS.
Filing For A Waiver For A Conviction Under Adam Walsh Act
Although the Adam Walsh Act (AWA) waiver is available, it is very difficult to get it approved. Prepare yourself for an uphill battle. Include an extreme amount of documentation when submitting the waiver. This is not the time to take things easy and hope that it all goes well. I recommend that you see an experienced immigration attorney to guide you through the process.
Remember, you will need to prove that you are “no risk” to your spouse and child/stepchild that you are petitioning for. To determine risk, you will be subjected to psychological and psychiatric evaluations, review of any health records, and all other evidence showing good character.
It’s not impossible but it is VERY difficult to get this waiver approved. It requires far more paperwork than just a statement saying that you are no risk to your spouse and child.
What If The Conviction Was Pardoned, Expunged or Sealed?
A pardon is a forgiveness of a crime and it’s associated penalties. Given the difficulty in obtaining a pardon from the courts, it may not be the best option to overcome issues related to your immigration application. Although USCIS does recognize pardons, it is on a very limited basis.
Using a pardon to waive a conviction can sometimes work as part of the strategy in your case, but it may not fix all the issues. To successfully obtain a pardon, you’ll need to bring your case to the attention of the President or a state governor and convince them to grant the pardon.
Final Thoughts On Criminal Records and Spouse Visa
In general, USCIS is more concerned about the criminal history of the intending immigrant unless it’s related to crimes against a minor. So, if you’re worried about a previous conviction for child pornography, you may need to hire an immigration attorney. Sure, you can file for a AWA waiver on your own but you’d have to do a lot of research to complete it correctly.
Mark was convicted for sex with a minor when he was 21 for sleeping with his 17 year old girlfriend. They were in a relationship which was mutual at the time but her parents didn’t approve of it. They reported their daughter’s relationship to the police and pressed charges against Mark. He is now considered a sex offender and is placed on the sex offender registry. He will need to report his whereabouts of his location to authorities going forward.
Mark then meets Gabriela in Brazil and they fall in love. They get married and begin the application process by filing I-130 petition for Gabriela and her 6 year old daughter. Unfortunately, his prior conviction for sex with a minor causes his petition to be denied and he’ll now have to file for a waiver.
In the example above, Mark will need to show that he is not a risk to his new wife and stepdaughter. A waiver for the Adam Walsh Act is required and the decision will be made based on whether Mark is rehabilitated and will not be a threat in the future.