Which Crimes Bar You From Filing I-130 Petition for Immigrant Spouse

The main crimes that will bar citizens and green card holders from petitioning for family-based immigrants are offenses against a minor (someone under the age of 18).

By , J.D., University of Washington School of Law

If you are a married person in the U.S. who wants to sponsor a foreign spouse to come to this country with an immigrant visa, the main criteria is that you have either U.S. citizenship or lawful permanent resident status. Beyond that, most of the immigration application process focuses on whether your marriage is the real thing and whether the would-be immigrant is actually admissible to the United States. The U.S. citizen or permanent resident's character, history, or characteristics get very little scrutiny.

There's one major exception, however. Under the Adam-Walsh Child Protection and Safety Act of 2006 (the "Adam Walsh Act") U.S. citizens and lawful permanent residents (LPRs) who have certain types of criminal convictions cannot petition for family members to receive U.S. residence (green cards). (See I.N.A. §§ 204(a)(1)(A)(i) and 204(a)(1)(B)(i).) The same limitation applies to U.S. petitioners filing K-1 fiancé visas.

What the Adam Walsh Act Means for U.S. Petitioners

If a U.S. citizen or LPR with one of the relevant crimes on record submits USCIS Form I-130 to start the petition process, the U.S. government will in all likelihood deny it. U.S. Citizenship and Immigration Services (USCIS) runs criminal background checks on U.S. petitioners in such cases, to find out whether the FBI, sex offender registries, or a related agency have a record of any crimes.

If one of the crimes that are a problem under the Adam Walsh Act turns up, the foreign-born person might, as a result, be unable to immigrate via this marriage.

What Crimes Make U.S. Petitioners Ineligible for Petition for Family

Broadly speaking, the category of crimes that will bar citizens and green card holders from petitioning for immigrants are offenses against a minor (someone under the age of 18). These include:

  • an offense (unless committed by a parent or guardian) involving kidnapping
  • an offense (unless committed by a parent or guardian) involving false imprisonment
  • solicitation to engage in sexual conduct
  • use of the minor in a sexual performance
  • solicitation to practice prostitution
  • video voyeurism
  • possession, production, or distribution of child pornography
  • criminal sexual conduct involving a minor, or using the Internet to facilitate or attempt such conduct, and
  • any conduct that by its nature is a sex offense against a minor.

Foreign convictions also count for purposes of this law (with exceptions for cases where the defendant did not receive a fair trial).

Would-be U.S. petitioners who have anything remotely similar to one of these crimes on record should speak to an immigration attorney before filing an immigrant visa petition on a family member's behalf.

Exception for U.S. Petitioners Who Pose No Risk to Immigrant

The law created an exception for instances where the Department of Homeland Security (DHS) determines, in its sole discretion, that the U.S. person filing the visa petition poses no risk to the beneficiary.

It's up to petitioners to not only ask for this exception, but to prove that they pose no risk, "beyond a reasonable doubt." That's a high burden of proof. To successfully convince DHS, the U.S. petitioner will need to supply documentary evidence (preferably certified copies or signed affidavits) showing what happened and what the petitioner has done by way of rehabilitation. These might include, for example:

  • police reports and court records relating to the offense
  • news accounts and trial transcripts discussing the nature and circumstances surrounding any and all the petitioner's criminal, violent, or abusive behavior incidents, arrests, and convictions.
  • evidence that the petitioner has completed a course of therapy or counseling
  • evidence that the petitioner has completed a rehabilitation program
  • results of evaluations by licensed psychiatrists, clinical psychologists, clinical social workers, or other professionals describing the petitioner's rehabilitation or behavior modification
  • evidence of community service performed by the petitioner, and
  • certification of the petitioner's service in the U.S. Armed Forces, Coast Guard, or public health services.

If the DHS is convinced that the petitioner poses no risk, the I-130 application can move forward. If not, this is the end of the line. There is no appeal from the DHS's determination.

Getting Legal Help

Because of the complexities of interpreting criminal law in the context of immigration law, and what's at stake, it would be wise to get an attorney's help with this filing, to make sure it gets done right the first time.

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