Why does Immigration check the criminal background of the U.S. Petitioner? What do the Adam Walsh Act and IMBRA have to do with it?
Past criminal convictions of the foreigner applying to come to the U.S always matter. That’s true whether s/he is applying to enter or stay temporarily or permanently. You can understand why; the U.S. justifiably doesn’t want to admit someone convicted of a serious offense. But in family cases, immigration or USCIS also checks the criminal background of the U.S. citizen or green card holder who files a petition (the “petitioner”) for their foreign family member.
Here are some Frequently Asked Questions (FAQs) about past convictions of the petitioner.
- Why does the petitioner’s background matter? Laws were passed in 2006 to protect family members, especially children, from harm. Those laws are in the Adam Walsh Act (AWA) and the International Marriage Broker Regulation Act (IMBRA). The Adam Walsh Act set up minimum standards for a national sex offender registry and included many provisions, including immigration protections, to protect children from sexual predators. The goal of IMBRA (part of VAWA or the Violence Against Women Act) was to protect the foreign fiancée or spouse from a petitioner with a serious criminal record and to inform the fiancée or spouse of the petitioner’s history. IMBRA also tries to prevent serial fiancée visa applicants and foreign mail order brides.
- What convictions must the petitioner disclose? On K-1 and K-3 (I-129F) applications, the following court or military convictions must be disclosed and records provided:
- Domestic violence, sexual assault, child abuse and neglect, dating violence, elder abuse, and stalking.
- Homicide, murder, manslaughter, rape, abusive sexual contact, sexual exploitation, incest, torture, trafficking, peonage, holding hostage, involuntary servitude, slave trade, kidnapping, abduction, unlawful criminal restraint, false imprisonment, or an attempt to commit any of these crimes.
- Crimes relating to a controlled substance or alcohol where the petitioner has been convicted on at least three occasions and where such crimes did not arise from a single act.
- What if the conviction was pardoned, expunged or sealed? You have to disclose the records anyway.
- What if the petitioner doesn’t disclose the conviction/s? The government will run background checks; it’s always better to disclose the information, both on the I-129F application and to the fiancée or spouse, than to try to hide it.
- What happens when the petitioner has a record of such convictions? At the least, the fiancée or spouse will be informed of the criminal record by the government. In addition, for any offense that is classified as a “specified offense against a minor” under the Adam Walsh Act, it will be extremely difficult for the petitioner to be approved to sponsor any family member or a foreign orphan or adoptee. See below.
Under the Adam Walsh Act a “specified offense against a minor” makes the U.S. citizen or green card holder ineligible to file a family-based petition – that includes an I-130 petition. The AWA offenses include false imprisonment, kidnapping, solicitation or use in a sexual performance, conduct, prostitution, or video voyeurism, involvement in child pornography, or “any conduct that by its nature is a sex offense against a minor.” The only possibility of getting a petition approved despite such a conviction is to request a waiver for being of “no risk” to the beneficiary. Note the bar applies to any family member, even an adult brother or sister who will live apart from the petitioner and is not at any threat, and even though the title of the act is “Adam Walsh Child Protection and Safety Act” and was intended to protect children.
It is extraordinarily difficult to get approval for an Adam Walsh Act waiver for several reasons. First, the law says there is no appeal, except on certain limited points of law. Next, current law says the petitioner must show he poses no risk “beyond any reasonable doubt.” This standard is virtually impossible to meet by anyone and is unique in immigration. Also, risk must be presumed automatically where a child is the beneficiary, even if they will not live together and no matter the crime or how long ago. Finally, USCIS guidance states that approvals should be rare. Immigration lawyers are attempting to appeal these and other points in courts.
To file for a “no risk” waiver, the petitioner must expect an uphill battle from the start and will have to file extensive documentation to USCIS, which decides this issue, to support a “no risk” finding. This includes psychological or psychiatric evaluations, records on counseling or rehabilitation programs; and all other evidence showing good character. It’s not impossible, but it’s very very difficult, far more than just including a statement or letter to say the beneficiary is not at risk.
