Sex Offender Applying for K1

[pushbrk 13,011]

Thank you to all those that have given advice. I am considering hiring an immigration attorney. Anyone know the approximate cost for one? While my previous offense shouldn't have any relevance to me being with an adult woman, at least in my eyes, the Adam Walsh Act makes it my burden to prove that I won't be of any harm to the benefiary. But I have no clue just how large of a threshold I would have to meet. I will do everything I can as this is the most important thing in my life. But I have no idea what I would do if this ended up being denied.

My personal opinion as to appropriate immigration related consequences for any specific criminal record wouldn't address the topic at hand. I think it's wise to remain focused on the immigration issues as well as to avoid magnifying or mislabeling the issue. The Adam Walsh act does absolutely nothing to prevent the OP from "being with" an adult woman. In our context it would have immigration ramifications only. At least no US law is preventing the OP from joining his fiance in her country, or preventing him from "being with" a person already in the USA.

I don't quite understand the OP's perceived options. In the hypothetical of a denied petition, is he contemplating joining the fiance abroad or ending the relationship? From the best I can tell, not only is nobody here an expert on the Adam Walsh Act but perhaps nobody including the authorities charged with enforcing it is either.

[AW Petitioner 1]

You are absolutely correct that the AW act has "immigration ramifications only" but think about this for a moment. How would the wife of someone be protected if the spouse were to move to her country? She would not be ! (if he were going to abuse her he could do so anywhere) It seems this may be another one of the governments ways of controlling immigrants into the USA ! By making this such a blanket law at the hands of their discretion, they could keep alot of intending fiancés or spouses out of the USA !

Edited July 13, 2008 by AW Petitioner

[hunnyko 0]

Thank you to all those that have given advice. I am considering hiring an immigration attorney. Anyone know the approximate cost for one? While my previous offense shouldn't have any relevance to me being with an adult woman, at least in my eyes, the Adam Walsh Act makes it my burden to prove that I won't be of any harm to the benefiary. But I have no clue just how large of a threshold I would have to meet. I will do everything I can as this is the most important thing in my life. But I have no idea what I would do if this ended up being denied.

You should maybe to call your local congress rep. they do help people with question regarding immigration and its free, what state do you live in?

[archie07 0]

You are absolutely correct that the AW act has "immigration ramifications only" but think about this for a moment. How would the wife of someone be protected if the spouse were to move to her country? She would not be ! (if he were going to abuse her he could do so anywhere) It seems this may be another one of the governments ways of controlling immigrants into the USA ! By making this such a blanket law at the hands of their discretion, they could keep alot of intending fiancés or spouses out of the USA !

The government can also keep Americans out of foreign countries. All it takes is one law being passed that denies/revokes a passport for those convictions that fall under the AW law.

[frostysoftyeaton 6]

seems the topics is getting a little murky but i can answer one question for you though i will honestly say in your case i do not think it is fair but then a lot of things in life are not always fair it is not your fiance they are trying to protect with this law it is her children or your children should you have any as you know from having to register things can be complicated for you and people can look you up and invade your privacy and nothing you can do about it but what they were trying to accomplish was to protect the children unfortunately that is not an issue here and you have to prove that they do not again it is unfair but then a lot of things are if everything was fair i could go to my babies country and marry her and bring her back with me after all i am a U.S. c itizen and she would be my wife but again nothing is ever fair i wish you luck and just remember they are not trying to protect her just any previous children or any children that the union could bring

seems the topics is getting a little murky but i can answer one question for you though i will honestly say in your case i do not think it is fair but then a lot of things in life are not always fair it is not your fiance they are trying to protect with this law it is her children or your children should you have any as you know from having to register things can be complicated for you and people can look you up and invade your privacy and nothing you can do about it but what they were trying to accomplish was to protect the children unfortunately that is not an issue here and you have to prove that they do not again it is unfair but then a lot of things are if everything was fair i could go to my babies country and marry her and bring her back with me after all i am a U.S. c itizen and she would be my wife but again nothing is ever fair i wish you luck and just remember they are not trying to protect her just any previous children or any children that the union could bring

seems the topics is getting a little murky but i can answer one question for you though i will honestly say in your case i do not think it is fair but then a lot of things in life are not always fair it is not your fiance they are trying to protect with this law it is her children or your children should you have any as you know from having to register things can be complicated for you and people can look you up and invade your privacy and nothing you can do about it but what they were trying to accomplish was to protect the children unfortunately that is not an issue here and you have to prove that they do not again it is unfair but then a lot of things are if everything was fair i could go to my babies country and marry her and bring her back with me after all i am a U.S. c itizen and she would be my wife but again nothing is ever fair i wish you luck and just remember they are not trying to protect her just any previous children or any children that the union could bring

[Singers 0]

While I understand your emotions, I'd like to point out that you haven't TRIED yet. Yes, the law is a wide reaching one but from a legislative standpoint it makes sense. It is easier to par it down and say what it doesn't encompass than try to keep adding on for each new set of circumstances.

In the OP's case, you were convicted of statutory rape. Given the circumstances as you present them, most people would not deem you a threat to society. (In fact in some jurisdictions you wouldn't have been prosecuted thanks to the Romeo and Juliette Laws) BUT statutory rape also means an even younger child and also a much older adult. To be safe they encompass ALL statutory rape and then allow for exceptions.

I personally think that your case has a high chance of success if those are the facts, so I wouldn't damn the system just yet.

[hunnyko 0]

While I understand your emotions, I'd like to point out that you haven't TRIED yet. Yes, the law is a wide reaching one but from a legislative standpoint it makes sense. It is easier to par it down and say what it doesn't encompass than try to keep adding on for each new set of circumstances.

In the OP's case, you were convicted of statutory rape. Given the circumstances as you present them, most people would not deem you a threat to society. (In fact in some jurisdictions you wouldn't have been prosecuted thanks to the Romeo and Juliette Laws) BUT statutory rape also means an even younger child and also a much older adult. To be safe they encompass ALL statutory rape and then allow for exceptions.

I personally think that your case has a high chance of success if those are the facts, so I wouldn't damn the system just yet.

Did you try calling your local Congress rep? Mine helped me a few times with questions and it is free.

They help people with questions with immigration :-) I had a DUI in 2005 was worried if it might affect me.

[Andy312 0]

Hello,

I joined just to reply to your post so you will have some real facts. I am almost in the same situation, having a felony conviction for sex with a teenaged girl and now being on the sex offender registry. I filed an I-130 for my wife almost 2 years ago and still have not gotten an approval or denial. Constant inquires get the same reply of "we are still doing background checks and will decided as soon as they are finished"

I have recently visited a top attorney in my area who told me more doom and gloom. I am told when they finally get around to making a decision I will be atomically "conditionally denied" because I have a criminal sex offense with a child (anyone under 18). After this I will have one chance to supply all the documentation from my case, and any supporting evidence to show them I am not a danger to my wife. After I supply this I am looking at 6 to 12 more months for a reply with a decision. If the reply is no, I will have no more chances to petition my wife to the States. Not to leave out the $3,000 to $4,000 estimate I was given from the lawyer for his help with this.

The law states “citizen convicted of a specified offense against a minor is not eligible to petition for a family-based visa. That bar, however, may be waived if the Secretary of Homeland Security determines that the citizen poses no risk to the alien with respect to whom the petition is filed.”

Since the girl was 16 I would be prepared for a very long wait and some large legal expenses. Not too many lawyers have handled cases like this, so there is not much info on what the requirements are to remove this bar. It makes no sense to me how the law states it’s to protect children but they are applying it to situations that do not involve a child. It’s also crazy I can marry and live with any US citizen, but am not allowed to bring my wife from another country home. I know I made this problem from my actions, but I really feel bad for my wife and my parents now who only want to hug their new daughter.

Good Luck

[Singers 0]

Thank you for giving us the details of your case.

I'm very curious how this will eventually play out because IMHO, the law was written to allow for exceptions such as statutory rape (especially when it's two teenagers.)

I hope you'll keep us updated as this very long process plays out.

[AW Petitioner 1]

Andy312: Thanks for your reply! Do I correctly understand thast you have had no response whatsoever to your I-30 in more than 2 years? It may be the gov't is just sitting on your petition because they don't know how to handle it relevant to the new laws ????????? It still seems that as a US citizen, you have the right to get a TIMELY response toyour petition. This is where other members advise getting congressman involved. I believe as they see more of these type of petitions that fall under AW, but deserve a second glance, some provisions will have to be adapted and written in. I think they are in for a bigger fallout from this than they are prepared to deal with.

Does your wife have children?

[Andy312 0]

Andy312: Thanks for your reply! Do I correctly understand thast you have had no response whatsoever to your I-30 in more than 2 years? It may be the gov't is just sitting on your petition because they don't know how to handle it relevant to the new laws ????????? It still seems that as a US citizen, you have the right to get a TIMELY response toyour petition. This is where other members advise getting congressman involved. I believe as they see more of these type of petitions that fall under AW, but deserve a second glance, some provisions will have to be adapted and written in. I think they are in for a bigger fallout from this than they are prepared to deal with.

Does your wife have children?

Oct will be the 2 year mark since we filed. During this time the only contact I have had was a letter requesting bio metrics (finger printing) last year in June. I have called and requested a status update every 60 days followed by the standard still processing letter wait 60 more days, until they sent a letter saying to wait 6 months before calling again. After 6 months I have been told the same "background check still pending, please wait 60 days before requesting status again". Who knows how long this can go on??

The legal advice I have gotten is that filing a suit and asking a federal judge it intervene is probably a big waste of money and to wait it out a little longer since they will need to make some decision sooner or later. In the mean time, I am contemplating if paying an attorney $4,000 to $5,000 on the gamble they will approve me is my best option vs. just packing it up and moving over seas.

Edited July 17, 2008 by Andy312

[ShadMot 1]

Hello,

I joined just to reply to your post so you will have some real facts. I am almost in the same situation, having a felony conviction for sex with a teenaged girl and now being on the sex offender registry. I filed an I-130 for my wife almost 2 years ago and still have not gotten an approval or denial. Constant inquires get the same reply of "we are still doing background checks and will decided as soon as they are finished"

I have recently visited a top attorney in my area who told me more doom and gloom. I am told when they finally get around to making a decision I will be atomically "conditionally denied" because I have a criminal sex offense with a child (anyone under 18). After this I will have one chance to supply all the documentation from my case, and any supporting evidence to show them I am not a danger to my wife. After I supply this I am looking at 6 to 12 more months for a reply with a decision. If the reply is no, I will have no more chances to petition my wife to the States. Not to leave out the $3,000 to $4,000 estimate I was given from the lawyer for his help with this.

The law states “citizen convicted of a specified offense against a minor is not eligible to petition for a family-based visa. That bar, however, may be waived if the Secretary of Homeland Security determines that the citizen poses no risk to the alien with respect to whom the petition is filed.”

Since the girl was 16 I would be prepared for a very long wait and some large legal expenses. Not too many lawyers have handled cases like this, so there is not much info on what the requirements are to remove this bar. It makes no sense to me how the law states it’s to protect children but they are applying it to situations that do not involve a child. It’s also crazy I can marry and live with any US citizen, but am not allowed to bring my wife from another country home. I know I made this problem from my actions, but I really feel bad for my wife and my parents now who only want to hug their new daughter.

Good Luck

Thank you for the information you have provided although it made me greatly depressed. About the bar being waived if Secretary of Homeland Security determines the citizen poses no risk to the alien. That aspect seems to just be there for show and statistically is probably close to nil. In a country so overly paranoid about sex offenses, that they'll charge a 3 year age difference of consentual sex as a felony and lifetime sex registration, I wouldn't expect the government to give me an inch. I will try my best but it seems I'm entering a process destined for automatic denial.

[sfninerboy 0]

I'm glad to see those of you who are participating in this chat thread. I am a lawyer who has practiced business litigation for the past 6 years. I am not an immigration lawyer but I have carefully examined the federal Adam Walsh legislation ("AWA") with great interest. A good friend of mine is a sex offender (convicted of unlawful sex with a minor approximately 10 years ago) who filed a K-1 visa with the USCIS in September 2007. The only response that my friend has received is a NOA-1. Subsequent telephone calls to the USCIS have resulted in nothing more than representations from the USCIS that they are still conducting the required background checks so on and so forth.

Prior to filing his I-130 petition, my friend consulted and hired an immigration lawyer to represent him in this matter, but the lawyer turned out to be a worthless waste of money as she had no more familiarity with the AWA than I did. That's why I got involved. Aside from its immigration ramifications, the AWA presents a much more dire consequences for the broader sex offender population in that it seeks to create a retroactive national sex offender registration which requires those who were never required to register as sex offenders at the time of their convictions to now do so. The sex offender registration components of this law are being challenged as unconstitutional in various forums throughout the country with varying degrees of success. At least one federal district court in Florida has held that the AWA's provisions criminally punishing sex offenders for traveling between states and failing to register in the state to which they have traveled is a violation of Congress' powers under the Commerce Clause (on the grounds that sex offender registration has nothing to do with regulation of interstate commerce). Other plaintiffs have challenged the constitutionality of the sex offender registration provisions under the Equal Protection and the Ex Post Facto Clauses of the U.S. Constitution. However, I have yet to see any legal decisions relating to the constitutionality of the AWA's proscription against sex offenders applying for a family-based immigration benefit.

My personal opinion (based on my knowledge of constitutional law) is that the AWA's deprivation of immigration benefits to sex offenders is constitutionally overbroad in that its stated purpose or intent is to protect children yet it applies to all family-based immigration petitions. In other words, there is no rational basis between the AWA's stated purpose and its global denial of any family-based immigration benefit including, but not limited to, a petition to bring your father, mother, sister, brother, fiance or spouse to this country. I'm not sure that the AWA's denial of immigration benefits would therefore withstand constitutional scrutiny. I believe that a colorable case could be made that the AWA's immigration provisions violate the Ex Post Facto Clause (because the denial of family-based immigration benefits appears to be nothing more than a punishment) and, perhaps, even represents an unconstitutional infringement upon the fundamental constitutional right to marry. Like I said, however, I can't find any reported case law where somebody has actually filed such a lawsuit so I can't provide any guidance on the merits of such claims.

In my spare time I continue to monitor legal decisions relating to this topic. Unfortunately, it is open season on those who have ever been convicted for a sex offense in this country regardless of the nature of the crime or the duration of time that has passed since the crime occurred. Punishing sex offenders has been, and always will be, a popular cause for politicians. One need not look any further than the oppressive provisions of the AWA to recognize that. Accordingly, I highly doubt that any congressman or senator is going to go to stand up and go to bat for my sex offender friend and his fiance. The only recourse will most likely be through litigation. However, for the sake of my friend and for those of you who are similarly situtated, I hope that this is not necessary and that the government does not stand in the way of your pursuit of happiness and true love. Keep hope alive.

[ShadMot 1]

I'm glad to see those of you who are participating in this chat thread. I am a lawyer who has practiced business litigation for the past 6 years. I am not an immigration lawyer but I have carefully examined the federal Adam Walsh legislation ("AWA") with great interest. A good friend of mine is a sex offender (convicted of unlawful sex with a minor approximately 10 years ago) who filed a K-1 visa with the USCIS in September 2007. The only response that my friend has received is a NOA-1. Subsequent telephone calls to the USCIS have resulted in nothing more than representations from the USCIS that they are still conducting the required background checks so on and so forth.

Prior to filing his I-130 petition, my friend consulted and hired an immigration lawyer to represent him in this matter, but the lawyer turned out to be a worthless waste of money as she had no more familiarity with the AWA than I did. That's why I got involved. Aside from its immigration ramifications, the AWA presents a much more dire consequences for the broader sex offender population in that it seeks to create a retroactive national sex offender registration which requires those who were never required to register as sex offenders at the time of their convictions to now do so. The sex offender registration components of this law are being challenged as unconstitutional in various forums throughout the country with varying degrees of success. At least one federal district court in Florida has held that the AWA's provisions criminally punishing sex offenders for traveling between states and failing to register in the state to which they have traveled is a violation of Congress' powers under the Commerce Clause (on the grounds that sex offender registration has nothing to do with regulation of interstate commerce). Other plaintiffs have challenged the constitutionality of the sex offender registration provisions under the Equal Protection and the Ex Post Facto Clauses of the U.S. Constitution. However, I have yet to see any legal decisions relating to the constitutionality of the AWA's proscription against sex offenders applying for a family-based immigration benefit.

My personal opinion (based on my knowledge of constitutional law) is that the AWA's deprivation of immigration benefits to sex offenders is constitutionally overbroad in that its stated purpose or intent is to protect children yet it applies to all family-based immigration petitions. In other words, there is no rational basis between the AWA's stated purpose and its global denial of any family-based immigration benefit including, but not limited to, a petition to bring your father, mother, sister, brother, fiance or spouse to this country. I'm not sure that the AWA's denial of immigration benefits would therefore withstand constitutional scrutiny. I believe that a colorable case could be made that the AWA's immigration provisions violate the Ex Post Facto Clause (because the denial of family-based immigration benefits appears to be nothing more than a punishment) and, perhaps, even represents an unconstitutional infringement upon the fundamental constitutional right to marry. Like I said, however, I can't find any reported case law where somebody has actually filed such a lawsuit so I can't provide any guidance on the merits of such claims.

In my spare time I continue to monitor legal decisions relating to this topic. Unfortunately, it is open season on those who have ever been convicted for a sex offense in this country regardless of the nature of the crime or the duration of time that has passed since the crime occurred. Punishing sex offenders has been, and always will be, a popular cause for politicians. One need not look any further than the oppressive provisions of the AWA to recognize that. Accordingly, I highly doubt that any congressman or senator is going to go to stand up and go to bat for my sex offender friend and his fiance. The only recourse will most likely be through litigation. However, for the sake of my friend and for those of you who are similarly situtated, I hope that this is not necessary and that the government does not stand in the way of your pursuit of happiness and true love. Keep hope alive.

Thank you so much for the information you have provided. I'm wondering what the best course of action for me is. I would think there would be some lawsuits challenging the AWA on constitutional grounds in relation to family based visas. If not, I might have to end up filing one myself. Since this law is rather new, I would figure it would be a couple more years before courts start making rulings on what aspect of AWA might be considered out of bounds. I might have to wait and see. If you get any further updates on what happens to your friend, please let us know. I would greatly appreciate it.

[AW Petitioner 1]

if the criminal check is done onus early in the filing process, then once they see the charge there it looks as if we will be given one chance to prove that we are not a risk. If that can be proved successfully then our petition moves forward. That may be the most logical step at having an attorney be involved to show the best arguments and have some strong evidence. I am researching furthur and trying to get some basic answers from immigration attorneys that have some experience with this new l.aw and have also filed some petitions. I believe the Govt has some guidelines that they are not following after reading the post from the lawyer here. They are not suppossed to just ignore the petitions which seems to be happening. they are suppossed to investigate the charge, get the details of the case and make a determination fromthere. Also the petitioner needs to be extremely pro active since this is what they are doing. I keep hearing get you elected reps and officials involved from people. Has anyone done this? I believe we still do have the right under the law to a timely response !!!!!!