Written by attorney Nicklaus James Misiti

The Adam Walsh Act: Sex Offender's and Immigration Law

Recently, under the Adam Walsh Child Protection Act, United States immigration law has taken a hard-line against US citizens and Lawful Permanent Residents ("LPRs") convicted of various specified offenses against minors. Under the Adam Walsh Act a person convicted of certain offenses against a minor are prohibited from petitioning to bring any non-citizen family member or spouse to the US. Such individuals are not only prohibited from petitioning for a minor child but they are also prohibited from petitioning for any adult beneficiary, such as a spouse, fiancé, parent, unmarried son or daughter over 21, an orphan, a married son or daughter, a brother or sister, and/or any derivative beneficiary. The following is a non-exhaustive list of offenses against a minor that could trigger a visa petition to be denied based upon the Adam Walsh Act: kidnapping or false imprisonment (unless committed by a parent), sexual solicitation, solicitation to engage in acts of prostitution, offenses involving child pornography, certain instances of statutory rape, or anything else that is determined to be an offense involving sexual conduct against a minor.

Thus, a 50 year old man who engaged in an improper relationship with a minor 25 years ago can now be stopped from entering a completely lawful and healthy relationship with a 55 year old foreign woman. At the same time under the Adam Walsh Act a 19 year old individual who was convicted under statutory rape laws in his state for engaging in consensual intercourse with his 17 year old girlfriend of 5 years can be barred from bringing a foreign spouse to the US in the future. These bars are in place despite the US citizen having served their time, not committed any other criminal acts and/or having provided evidence of rehabilitation

Effectively the Adam Walsh Act prohibits US citizens and LPR's convicted of various crimes against a minor from filing for any family member without first obtaining a waiver from the Department of Homeland Security ("DHS"). Moreover, Adam Walsh Waivers are extremely difficult to obtain. The decision to waive such a conviction is left to DHS, who has "sole unreviewable discretion" to grant or deny an Adam Walsh Act Waiver. "Sole unreviewable discretion" means DHS has ultimate power in these decisions, there is not an appeal process, and there is not a complaint or review process. Such a decision is left completely up to the person reviewing the request and they can deny any application for any reason. In fact they do not even need to provide a reason.

In order to qualify for an Adam Walsh Act waiver the petitioner must show they pose no risk to the beneficiary. Any applicant applying for such a waiver should plan on submitting some or all of the following:

  1. Their own sworn affidavit,
  2. A sworn affidavit of the potential beneficiary,
  3. Sworn affidavits of close friends and/or prominent members of the community,
  4. The police and court records describing the crime/s,
  5. Newspaper articles describing the crime/s,
  6. A full psychological evaluation,
  7. Evidence of rehabilitation, and
  8. Any other evidence which shows pose no risk to the beneficiary.

As one may guess, decisions that are left to the "sole, unreviewable discretion" of the immigration officer are often not given a fair analysis. First the officer reviewing such an application's decision will not be questioned and they will not be reprimanded in any way. Second, there is a great deal of misinformation and prejudice surrounding people convicted of these types of crimes. DHS officers have no problem accepting the non-refundable filing fees from a petitioner and turning around and denying their application. Moreover, once an application is denied it makes it all that more difficult to submit it again and get it approved.

Because of the difficulty in getting such waivers approved it is highly recommended a person applying for an Adam Walsh Act Waiver retain competent and experienced counsel to assemble a formal request. . Thus, if you require an Adam Walsh Act Waiver, it is highly recommended you retain competent counsel ( immediately.

Additional resources provided by the author

Nicklaus Misiti is Chief Attorney and C.E.O. of Law Offices of Nicklaus Mistii, PLLC. His firm handles all types of Immigration matters and has a specific practice area dedicated solely to criminal immigration and Adam Walsh immigration issues. To schedule a confidential consultation you can visit our website at or give us a call at 212 537 4407. For more articles on the Adam Walsh Act and immigration follow the links below. *Each case is unique and past results do not guarantee future outcomes.

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