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Mar25

In the Trenches: Overcoming Adam Walsh Act Barriers to Family Immigration

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Scenario: You’re a US citizen or lawful permanent resident. You want to bring a loved one to the United States to join you. You apply for your spouse or family member to adjust status but receive a request for evidence (“RFE”) or notice of intent to deny (“NOID”). The government says that they won’t give your loved one a green card because of your criminal record unless you can prove that either your criminal record is not of the kind that triggers the relevant law or that you pose no risk of harm to your loved one.

Legal background: President George W. Bush signed the Adam Walsh Child Protection and Safety Act (“Adam Walsh Act” or “AWA”) in 2006. The AWA is also known as the Sex Offender Registration and Notification Act (“SORNA”), and as the name indicates, is envisioned to protect the public from those classified as sex offenders. The AWA affects many areas of law, including immigration.

The AWA amends Section 204 of the Immigration and Nationality Act (INA) to prohibit certain US citizens and green card holders from petitioning for green cards for their loved ones. The law states that the right to petition for a loved one to immigrate to the United States shall not apply to a citizen of the United States who has been convicted of a specified offense against a minor, unless the Secretary of Homeland Security, in the Secretary’s sole and unreviewable discretion, determines that the citizen poses no risk to the alien

8 USC 1154(a)(viii)(I). So what is a “specified offense against a minor? Section III of the AWA defines it as follows:

The term ‘‘specified offense against a minor’’ means an offense against a minor 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.
    (C) Solicitation to engage in sexual conduct.
    (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.
    (I) Any conduct that by its nature is a sex offense against a minor.

Adam Walsh Child Protection and Safety Act of 2006, Section 111(7). Please note that you will need to consult an attorney to determine whether your criminal record meets this definition.

Options: If you find yourself in this situation, you may be facing an uphill battle but, depending on your circumstances, you still might be able to overcome it. We highly recommend contacting a qualified immigration attorney to discuss options. Our immigration team has a track record of success with these cases so give us a call or email to set up a consultation.

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