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

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

There is 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 attempting to file K-1 fiancé visas to sponsor a foreign national to come to the United States and get married.

USCIS Runs Background Checks on U.S. Petitioners of Spouses and Fiancés

If a U.S. citizen or LPR with one of the relevant crimes on their record submits a USCIS Form I-130 petition for their spouse to start the immigration process (or an I-129F petition for a fiancé), the U.S. government will in all likelihood deny it.

U.S. Citizenship and Immigration Services (USCIS) runs criminal background checks on would-be U.S. sponsors after receiving the petition form. That lets them find out whether the FBI, sex offender registries, or any related agency has a record of that person having been convicted of any crimes.

If it turns out they have been, and if one of the crimes is considered a problem under the Adam Walsh Act, the foreign-born person might, as a result, be unable to obtain a visa or 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 encompasses mostly offenses against a minor (a child under the age of 18), both sexual and non-sexual. 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.

As for where the crime was committed, it doesn't matter. Foreign convictions normally 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 their record should speak to an immigration attorney before filing an immigrant visa petition or a K-1 on a family member's behalf.

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

The Adam Walsh Act contains an exception for instances where the Secretary of the Department of Homeland Security (DHS) determines, in their sole discretion, that the U.S. person filing the visa petition poses no risk to the foreign-born beneficiary.

It is up to U.S. petitioners to ask for this exception. You don't literally have to approach the DHS Secretary, but should make your request to USCIS. In fact, you don't have to do it ahead of time, but can wait until the agency responds to your I-130 filing by, most likely, sending a "Request for Evidence" (RFE). You will be given a set number of days in which to respond.

Your primary task is to prove that you pose no risk to the immigrant, "beyond a reasonable doubt." That's a high burden of proof. To successfully convince USCIS, the U.S. petitioner will need to supply documentary evidence (preferably certified copies or signed affidavits) showing the facts of what happened and what the U.S. 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 U.S. 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.

The details are important. USCIS will want the materials to offer a deep dive into the U.S. petitioner's thinking at the time of the crime and since. (And no, they won't be interested in how the immigrant is so in love that they're willing to overlook the petitioner's past.)

If the DHS is convinced that the petitioner truly poses no risk to the immigrant, the I-130 petition and the immigrant's application can move forward. If not, this is the end of the line. There is no appeal from the DHS's determination. Unfortunately, most cases are denied, with little explanation given other than to remind the petitioner of their criminal record.

What If an Arrest for One of These Crimes Didn't Result in a Conviction?

A petitioner who was innocent of the crime they were charged with should not, ultimately, be blocked from petitioning for a family immigrant. But USCIS is cautious in such cases, and could look at the petitioner's record for other instances of criminal history, even if they're not on the above list. If it appears that the petitioner poses any risk to the safety or well-being of the foreign national, they could deny the application. (See the 2007 USCIS Aytes Memo for details.)

Getting Legal Help

Because of the complexities of interpreting criminal law in the context of immigration law, and the high stakes (with a likelihood of denial), it would be wise to get an attorney's help with this filing. The attorney can evaluate the facts and law, prepare the paperwork and legal memos explaining why the petitioner doesn't pose a risk to the immigrant, and make sure everything gets done right the first time.