Waivers Under the Adam Walsh Act (AWA)

This article discusses the Adam Walsh Act and its history, the dilemma it creates for some individuals, the way to obtain an Adam Walsh Act waiver, and the standard of proof for doing so.

Congress enacted the Adam Walsh Child Protection and Safety Act of 2006 as a means to protect children from the horrors of sexual abuse, sexual exploitation, and other forms of violent crime. The Adam Walsh Act crafted a three-tier system for categorizing sex offenders based on the severity of their crimes, established reporting and registration requirements for sex offenders, and created a national sex offender registry.

In addition to imposing stricter reporting and registration requirements for sex offenders, the Adam Walsh Act amended a provision of the Immigration and Nationality Act (“INA”) regarding family-based immigrant visa petitions. As a result of the amendment, U.S. citizens and lawful permanent residents (“LPRs”) who have been convicted of certain “specified offenses against a minor” may not file visa petitions for family members.

While this prohibition is widespread in scope, U.S. citizens and LPRs may be able circumvent its reach by obtaining an Adam Walsh Act waiver. This article further explains the Adam Walsh Act’s impact on family-based immigrant visa petitions as well as the process to procure a waiver.

Adam Walsh Act and Family-Based Visa Petitions

Because the family-based immigration system prioritizes unifying families with close relatives, U.S. immigration law permits U.S. citizens and LPRs (known as petitioners) to petition for immigrant visas on behalf of certain qualifying family members (known as beneficiaries). However, some U.S citizens and LPRs may be ineligible to petition based on the Adam Walsh Act.

Due to the enactment of the Adam Walsh Act, U.S. citizens and LPRs who have been convicted of a “specified offense against a minor” are barred from filing a visa petition on behalf of a family member or fiancé. See Sections 402(a) and (b) of the Adam Walsh Act (and amended Sections 101(a)(15)(K), 204(a)(1)(A), and 204(a)(1)(B)(i) of the Immigration & Nationality Act). In practice, the prohibition prevents U.S. citizens and LPRs with a conviction for a specified offense against a minor from bringing a foreign spouse or fiancé to the United States.

This prohibition is absolute unless the Secretary of the Department of Homeland Security determines in his or her sole and unreviewable discretion that the petitioner poses no risk to the beneficiary of the visa petition. Pursuant to 8 CFR 2.1, this discretionary authority is delegated to USCIS. See also Matter of Aceijas-Quiroz (BIA 2014).

Convictions for Specified Offenses Against a Minor

Before discussing the list of “specified offenses against a minor,” it is crucial to understand how the INA defines a minor: a minor refers to any individual who is under the age of 18.

The list of specified offenses against a minor that make a U.S. citizen or LPR ineligible from filing a family-based visa petition include:

• Offenses involving kidnapping and false imprisonment by an individual who is not the minor’s parent or guardian
• Solicitation to engage in sexual conduct or to practice prostitution
• Use in sexual performance
• Video voyeurism
• Offenses related to child pornography, including possession, production, and distribution
• Criminal sexual conduct with a minor
• Other conduct that constitutes a sex offense against a minor

How a Case is Flagged as an Adam Walsh Act Case

A matter is typically flagged as a potential issue under the Adam Walsh Act once a U.S. citizen or LPR petitioner files a family-based visa petition. After the petition is filed, it is reviewed by an U.S. Citizenship and Immigration Services (“USCIS”) adjudicator. While evaluating the petition, the adjudicator may notice the petitioner’s criminal history and determine the petition warrants further review as a possible Adam Walsh Act case.

Once flagged as a possible Adam Walsh Act case, the adjudicator performs a criminal background search on the petitioner. If this initial search indicates the petitioner has been convicted of a specified offense against a minor, the adjudicator then must run the petitioner’s aliases through the Interagency Border Inspection System (“IBIS”) Manifest. If the IBIS Manifest search further confirms that the petition is an Adam Walsh Act case, then the adjudicator may issue a Request for Evidence. This request requires petitioners to provide all police arrest records, court dispositions, and fingerprints.

If an LPR attempts to file a visa petition for a family member but is barred under the Adam Walsh Act, the individual may be placed in removal proceedings to determine if the individual is deportable.

If USCIS does not become aware of the petitioner’s conviction for a specified offense against a minor until after the petition is approved, USCIS will issue a Request for Evidence or Notice of Intent to Revoke.

Adam Walsh Act Waiver

If a petitioner wants an Adam Walsh Act waiver, then USCIS will conduct a no risk determination. The petitioner must demonstrate to the USCIS adjudicator that despite the conviction, the petitioner poses no risk to the beneficiary. The petitioner may support this claim by submitting evidence, including but not limited to:

• Proof of community involvement or military service
• Records of rehabilitation and counseling –– including certified documents stating the program was successfully completed and evaluations by licensed professionals attesting to the rehabilitation
• Documents relating to the trial, such as police reports, court records, news accounts, and trial transcripts

When considering the provided evidence during the no risk determination, the USCIS adjudicator weighs numerous factors, including:

• Petitioner’s criminal history
• Relationship between the beneficiary and the principal
• Age and gender of the beneficiary

When the beneficiary is a child, USCIS automatically presumes that there is a present risk. It is extremely challenging for a petitioner to obtain a waiver in this circumstance.

In order to grant a waiver, the USCIS adjudicator must conclude that the petitioner is not a threat to the beneficiary. The USCIS adjudicator must be convinced beyond a reasonable doubt. If the USCIS adjudicator cannot evaluate the evidence and determine there is no risk involved, then the adjudicator must deny the petition.

The Department of Homeland Security, through USCIS, has complete discretion in determining who qualifies for a waiver. The Board of Immigration Appeals (“BIA”) does not have jurisdiction to review a no risk determination by USCIS. However, the BIA may review whether a conviction qualifies as a specified offense against a minor.

The petitioner may appeal an adverse no risk determination to the Administrative Appeals Office. Once the Administrative Appeals Office makes a final no risk determination, the petitioner may then appeal a denied family-based immigrant visa petition to the BIA.

Our Experience

Gillin Law Group has over a decade of experience putting together compelling AWA waiver applications. Truth be told, not every AWA waiver application will be approved. The results depend on the facts of each case. We have had approvals as well as denials. But we will put your best foot forward in each case by using every piece of evidence imaginable to make the argument that you pose no risk to the beneficiary. Our team works tirelessly for our clients and advocates for them every step of the way.