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Aug 09, 2015 News

The Child Protection and Safety Act

By Attorney Gail Seeram

The Adam Walsh Child Protection and Safety Act (“Adam Walsh Act”) became law on July 27, 2006. It contains two important provisions that amended the Immigration and Nationality Act. The first provision prohibits U.S. citizens and lawful permanent residents who have been convicted of any “specified offense against a minor” from filing a family-based immigrant petition on behalf of any beneficiary, unless the Secretary of Homeland Security (Secretary) determines, in his sole and unreviewable discretion, that the petitioner poses no risk to the beneficiary.

The second provision bars U.S. citizens convicted of these offenses from filing nonimmigrant visa petitions to classify their fiancé(e)s, spouses, or minor children as eligible for “K” nonimmigrant status, unless the Secretary determines, in his sole and unreviewable discretion, that the petitioner poses no risk to the beneficiary.

A petitioner who has been convicted of a specified offense against a minor is not simply prohibited from filing on behalf of a minor child. The petitioner is prohibited from filing on behalf of “any” family-based beneficiary.

“Any beneficiary” includes a spouse, a fiancé(e), a parent, an unmarried child, an unmarried son or daughter over 21 years of age, an orphan, a married son or daughter, a brother or sister, and any derivative beneficiary permitted to apply for an immigrant visa on the basis of his or her relationship to the principal beneficiary of a family-based petition.

The term “specified offense against a minor” means an offense against a minor (defined as an individual who has not attained the age of 18 years) that involves any of the following:

(A) An offense (unless committed by a parent or guardian) involving kidnapping;

(B) An offense (unless committed by a parent or guardian) involving false imprisonment;

(D) Use in a sexual performance;

(E) Solicitation to practice prostitution;

(F) Video voyeurism as described in section 1801 of Title 18, United States Code;

(G) Possession, production, or distribution of child pornography;

(H) Criminal sexual conduct involving a minor, or the use of the Internet to facilitate or attempt such conduct; or

(I) Any conduct that by its nature is a sex offense against a minor.

If, at any time prior to adjustment of status or consular processing, Immigration becomes aware that the petitioner has a conviction for a specified offense against a minor, steps may be taken to revoke the approved family-based immigrant visa petition or reopen and reconsider the petition. For immigrant visa petitions that have already been approved, revocation of the approval would be appropriate, if the petitioner has been convicted of a specified offense against a minor and the adjudicator finds that the petitioner poses any risk to the beneficiary.

To avoid denial of a petition or the revocation of a prior approval, a petitioner who has been convicted of a specified offense against a minor must submit evidence of rehabilitation and any other relevant evidence that clearly demonstrates, beyond any reasonable doubt, that he or she poses no risk to the safety and well-being of his or her intended beneficiary(ies).

The process of submitting evidence to prove the petitioner does not pose “a risk of substantial harm” can be cumbersome. It is advised to consult with an immigration lawyer to ensure the proper evidence is submitted so as to avoid a denial of the family-based immigration petition (Form I-130).

For more information, contact Gail Law Firm:

Email: [email protected]

Phone: 1-877-GAIL-LAW or 407-292-7730

www.MyOrlandoImmigrationLawyer.com