As a U.S. citizen or a lawful permanent resident (LPR) who wants to sponsor your foreign spouse for an immigrant visa, there are many factors to consider and it can be complex, and one critical aspect that often gets overlooked is your criminal history and some crimes can stop you from this so you have to know these restrictions very well.
Understanding the Basics
Before diving into the specific crimes that can affect your ability to file an I-130 petition, let’s cover the fundamental requirements. To sponsor your foreign spouse, you must either be a U.S. citizen or have lawful permanent resident status. Once that’s established, the focus shifts to verifying the legitimacy of your marriage and the admissibility of your spouse.
Generally, the petitioner’s character and history are not scrutinized closely, except under the Adam Walsh Child Protection and Safety Act of 2006, known as the “Adam Walsh Act.” This law imposes strict restrictions on U.S. citizens and LPRs with certain criminal convictions, preventing them from petitioning for family members to receive U.S. residency, including green cards and K-1 fiancé visas.
The Impact of the Adam Walsh Act
Under the Adam Walsh Act, if a U.S. citizen or LPR with one of the specified crimes on their record submits USCIS Form I-130, their application will likely be denied. Additionally, USCIS conducts thorough criminal background checks, using sources such as the FBI and sex offender registries. If a disqualifying crime is found, the foreign spouse may be unable to immigrate to the U.S. through marriage.
Crimes That Render U.S. Petitioners Ineligible
The Adam Walsh Act targets crimes against minors (under 18), including:
- Kidnapping (except by a parent or guardian)
- False imprisonment (except by a parent or guardian)
- Solicitation to engage in sexual conduct
- Use of a minor in a sexual performance
- Solicitation to practice prostitution
- Video voyeurism
- Possession, production, or distribution of child pornography
- Criminal sexual conduct involving a minor (including using the Internet to facilitate such conduct)
- Any conduct deemed a sex offense against a minor
- Foreign convictions can also trigger these restrictions unless the trial is deemed unfair.
Seeking an Exception
There is hope for petitioners facing these restrictions. The Department of Homeland Security (DHS) can make an exception if the petitioner is deemed not to pose a risk to the immigrant spouse. Evidence might include:
- Police reports and court records detailing the criminal history
- News accounts and trial transcripts for additional context
- Documentation of rehabilitation efforts, such as therapy or counseling
- Proof of community service
- Certification of military service, if applicable
Final Thoughts
Given the complexity of immigration law, particularly when it intersects with criminal history, seeking legal counsel is highly advisable. The immigration officials would reject your application; however, if they determine specifically that their denial of your request would cause “Exceptional and Extremely Unusual Hardship”, namely, hardship that is far beyond what is normally expected generally.
In summary, if you’re considering sponsoring your immigrant spouse, it’s crucial to be aware of the crimes that can hinder your efforts. In particular, understanding the provisions of the Adam Walsh Act and potential exceptions is essential for effectively navigating this complex aspect of U.S. immigration law.
