Written by attorney Brian David Lerner

Getting a Waiver for a Sex Crime against a Minor in a K1 Fiancee Visa

There is a way to obtain a Waiver of the Criminal Bar under the Adam Walsh Act when applying for a K-1 Fiancee Visa. The Waiver under this provision is in the “sole and unreviewable discretion" of DHS upon a determination that the “petitioner poses no risk to the beneficiary." USCIS must take into consideration that the purpose of the Adam Walsh Act is “to ensure that an intended alien beneficiary is not placed at risk of harm" from the petitioner.
USCIS interprets the ‘poses no risk to the beneficiary’ provision to mean that the petitioner must pose no risk to the safety or well-being of the beneficiary, which includes the principal beneficiary and any alien derivative beneficiary."
Petitioner must submit relevant evidence that demonstrates, beyond a reasonable doubt, that s/he poses no risk to the safety and well-being of the beneficiary. The burden is upon the petitioner to rebut and overcome the presumption of risk. Proof may include: (1) certified records indicating successful completion of counseling or rehabilitation programs; (2) certified psychological evaluations attesting to rehabilitation or behavior modification; (3) evidence of service to the community; (4) certified copies of police and court records relating to the offense; and (5) news accounts and transcripts describing the nature and circumstances of the offense. Proof of rehabilitation may be submitted but it is not required above and beyond proof that a petitioner poses no risk to the beneficiary.
USCIS shall consider all known factors that are relevant to determine whether the petitioner poses any risk including: (1) the nature and severity of the offense; (2) petitioner’s criminal history; (3) the nature, severity, and mitigating circumstances of prior arrests or convictions of violent or criminal behavior that may pose a risk; (4) the relationship between the petitioner and the beneficiary and derivative beneficiaries; (5) the age and gender of the beneficiary; (6) whether petitioner and beneficiary will be residing in the same house; and (7) the degree that rehabilitation or behavior modification alleviate the risk. Unless the adjudicator can conclude that the petitioner poses no risk to the beneficiary, s/he must deny the petition. In the “rare instance of an approval recommendation" the adjudicator must document that two levels of supervisory concurrence were made by a field supervisor at the GS-13 level or above and a field supervisor at the GS-15 level or above. This shows it will not be impossible to get granted, but very difficult.

There is a presesumption of Risk Where Intended Beneficiary is a Child—“Irrespective of the nature and severity of the petitioner’s specified offense and other past criminal acts and irrespective of whether the petitioner and beneficiary will be residing either in the same household or within close proximity to one another," the “adjudicator must automatically presume that risks exists" where the intended beneficiary of the petition is a child. The “burden is on the petitioner to rebut and overcome the presumption. Therefore, if a K-2 is involved and a child will be coming to the U.S., this provision will be analyzed.

Where children are not involved as beneficiaries, there is no presumption against the petitioner. However, the adjudicator must “closely examine" the petitioner’s offense because past acts of spousal abuse or other acts of violence must be considered. The fact that past acts were perpetrated only against children or that the petitioner and beneficiary will not be residing in the same household or in close proximity are not alone sufficient to find no risk.

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