LEGAL GUIDE
Written by attorney Brian David Lerner | Mar 21, 2011

The Petitioner committing a Sex Crime against a Minor in a K-1 Fiancee Visa

Generally, a United States Citizen who has been convicted of “a specified offense against a minor" as defined in the Adam Walsh Child Protection and Safety Act of 2007 is prohibited from petitioning for his or her fiancé(e), unless the Secy. of DHS, in his or her “unreviewable discretion," determines that the USC poses no risk to the beneficiary.

A “specified offense against a minor" as an offense against a minor that involves any of the following: (A) kidnapping (unless committed by a parent or guardian); (B) false imprisonment (unless committed by a parent or guardian); (C) solicitation to engage in sexual conduct; (D) use in a sexual performance; (E) solicitation to practice prostitution; (F) video voyeurism; (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." The last provision—conduct by its nature that is a “sex offense against a minor" refers to and therefore encompasses the crimes specified in the Adam Walsh Act including: a criminal offense that has an element involving a sexual act or sexual contact with another; a criminal offense that is a specified offense against a minor; a federal offense involving these items or (v) any attempt or conspiracy to commit an offense described above.

The “sex offense" provision applies to foreign convictions unless they were not obtained “with sufficient safeguards for fundamental fairness and due process for the accused. Sex offense convictions “under the laws of Canada, United Kingdom, Australia, and New Zealand are deemed to have been obtained with sufficient safeguards for fundamental fairness and due process." The other exception to the definition of “sex offense" are “offenses involving consensual sexual conduct." The Adam Walsh Act defines this as “an offense involving consensual sex…if the victim was an adult, unless the adult was under the custodial authority of the offender at the time of the offense, or if the victim was at least 13 years old and the offender was not more than 4 years older than the victim."

USCIS views the list of offenses covered by the Adam Walsh Act as “stated in relatively broad terms" and takes into account that these offenses may be named differently in a wide variety of federal, state, and foreign criminal statutes.

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