Memo sent from Condi Rice to US Consulates regarding the impact of Adam Walsh Act (including I-130 processing and DCF).

[Captain Ewok 1,891]

E.O. 12958: N/A

TAGS: CVIS, CMGT

SUBJECT: REFERRAL OF ALL I-130 PETITIONS TO USCIS SERVICE

OFFICES FOR ADJUDICATION

REF: 03 STATE 146632

1. Summary: CA and USCIS have completed a thorough analysis of the Adam Walsh Protection act and come to the conclusion that posts must cease accepting or adjudicating any I-130 petition for family-based immigrant status that was not adjudicated by USCIS, and inform any individual wishing to file such a petition that it is necessary to file it with the appropriate USCIS office and refrain from assisting further. This change is effective immediately. In any case in which a post has already accepted an I-130 from a petitioner but has not yet issued a visa, post must forward the petition to the appropriate USCIS overseas office as "not clearly approvable." We are working with USCIS and will provide subsequent guidance on processing I-600 petitions and previously approved I-130 petitions. CA recognizes that this change may cause difficulties and encourages posts to advise their resident American citizen communities that new procedures are in place so that they may plan ahead. End summary.

2. On July 27, 2006, the Adam Walsh Child Protection and Safety Act (Adam Walsh Act), Pub. L. No. 109-248, became law. Section 402 of that Act amends INA 204(a)(1) and 101(a)(15)(K), rendering ineligible to file a petition for immigrant status under INA 203(a) (I-130 or I-600), or for nonimmigrant K status (I-129F), any petitioner who has been convicted of a "specified offense against a minor," defined in section 111 of the Adam Walsh Act as an offense involving any of the following:

BEGIN QUOTE

A) An offense (unless committed by a parent or guardian) involving kidnapping.

B) An offense (unless committed by a parent or guardian) involving false imprisonment.

C) Solicitation to engage in sexual conduct.

D) Use in a sexual performance.

E) Solicitation to practice prostitution.

F) Video voyeurism as described in section 1801 of title 18, United States Code.

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.

I) Any conduct that by its nature is a sex offense against a minor.

END QUOTE

Section 402 of the Adam Walsh Act provides that the bar against filing a petition because of such a conviction will not apply if the Secretary of Homeland Security, in his sole and unreviewable discretion, determines that the petitioner poses no risk to the beneficiary.

3. USCIS has provided interim guidance to its adjudicators to search its IBIS database for criminal history record information regarding USPER petitioners in family-based immigrant status cases and K nonimmigrant status cases. If there is an IBIS hit for one of the specified offenses against a minor, the USCIS field office must issue a Request for Evidence for all police arrest records and court disposition documents, and must schedule the petitioner for fingerprinting.

4. Consular officers do not have access to criminal history record information regarding USPER petitioners and therefore are unable to determine whether a petitioner has a conviction for a specified offense against a minor that renders the petitioner ineligible under INA 204(a)(1)(A)(viii) or 204(a)(1)(B)(i)(II) to file a petition. The limited extract information in CLASS downloaded from the FBI's National Crime Information Center relates solely to aliens, and INA 105 provides for the use of such information "for the purpose of determining whether or not a visa applicant or applicant for admission has a criminal history record indexed in any such file."

5. In the absence of access to information that is essential to the determination of whether a petitioner is eligible to file a petition for immigrant status in a family-based classification, consular officers are unable to take any action on an unadjudicated I-130 petition. Rather, posts must advise individuals who seek to file such a petition that they should submit it directly to the appropriate USCIS office. USCIS maintains an office locator page, based on place of residence, on its website at https://egov.immigration.gov/crisgwi...n=offices.type

&OfficeLocator.office_type=OS. In cases in which a post has already accepted an I-130 for filing but has not yet issued an immigrant visa, the consular officer must consider the petition "not clearly approvable" because of the inability to fulfill INA 204(a)(1)'s requirement for a determination of the petitioner's eligibility to file. Pursuant to 9 FAM 42.41 N4.2-3(d) and 8 CFR 204.1(e)(3), posts must forward all such I-130 petitions that petioners filed at post, with all supporting documents, to the appropriate USCIS office. To reiterate, consular officers are no longer authorized to accept or adjudicate I-130 petitions at post under any circumstances. 9 FAM Appendix N 200 is being revised accordingly. We are preparing press guidance, which posts will be able to access at http://intranet.ca.state.gov/PPAffairs/ppaffairs.htm.

6. We are requesting clarification from USCIS regarding the validity, for Adam Walsh Act criminal record check purposes, of the fingerprint clearance procedures at the time of I-600 processing that are specified in Reftel (SOP-21) and 9 FAM 42.21 N13.3(d), as well as the applicability of section 402 of the Adam Walsh Act to petitions for family-based immigrant status or K nonimmigrant status that were approved prior to the act's effective date. Further guidance will follow our receipt of the USCIS clarification.

7. Minimize considered.

RICE

BT

#7956

[Alex+R 0]

I already hated her... I'm so sorry to DCFers caught in this total BS measure.

[payxibka 10,045]

I already hated her... I'm so sorry to DCFers caught in this total BS measure.

Huh? She did not pass the law that prompted the change...

[TimsDaisy 0]

She may not have passed it, but she's part of the administration responsible for implementing the law - and it is within her power to create regulations that would AT LEAST allow for the completion of currently filed I-130. It's a really raw deal for anyone who chould see the finish line.

[payxibka 10,045]

She may not have passed it, but she's part of the administration responsible for implementing the law - and it is within her power to create regulations that would AT LEAST allow for the completion of currently filed I-130. It's a really raw deal for anyone who chould see the finish line.

They are allowing for the completion... just gonna take longer.

[misa 2]

It's a good law, just poorly implemented...

[natty bumppo 297]

"poorly implemented... "

Agreed ... and we are being too kind ...

[aznsamiam 0]

I think a lot of people think that they are getting a raw deal, but we should understand this issue from the original reason of WHY this law was put into effect

The law was designed to protect minors from sexual crimes by increasing penalties and creating new databases to keep track of sex offenders

If you notice, the I-130 does NOT have any questions regarding the criminal background of the original petitioner, unlike the I-129F petition which has these questions, but only because of the IMBRA which forced the revision of THAT form. This would allow basically any US citizen to petition for a family member, even if they're a convicted sex offender or criminal.

so if you'd like to think of it, think of the Adam Walsh act as the IMBRA for the I-130. Designed to keep the dirt of our society from hurting others in different countries. Although it might affect us by making our process a little longer or more difficult, just think of the other people who benefit from this bit of legislation

just a thought

[meauxna 15]

Further, the law was signed and went into effect on 7/27/06. It's the USCIS that has been sitting on it lo these many months, "interpreting" and then swinging into action in a heartbeat.

[sophyie 0]

Further, the law was signed and went into effect on 7/27/06. It's the USCIS that has been sitting on it lo these many months, "interpreting" and then swinging into action in a heartbeat.

Ok, now I have a quick question- does this law make my visa invalid?

We filed my petition in Frankfurt on Sept. 1st and I had my visa in hand on the first of November.

I activated the visa just before Christmas and am now back in Germany for a little while before returning to the US for good.

ETA: I think Frankfurt has a USCIS field office and they still accept petitions filed directly in Frankfurt (at least according to a post here)

Edited January 30, 2007 by sophyie

[meauxna 15]

Further, the law was signed and went into effect on 7/27/06. It's the USCIS that has been sitting on it lo these many months, "interpreting" and then swinging into action in a heartbeat.

Ok, now I have a quick question- does this law make my visa invalid?

We filed my petition in Frankfurt on Sept. 1st and I had my visa in hand on the first of November.

I activated the visa just before Christmas and am now back in Germany for a little while before returning to the US for good.

ETA: I think Frankfurt has a USCIS field office and they still accept petitions filed directly in Frankfurt (at least according to a post here)

S, I don't know.

However, because your case did go through a CIS office, that may make a difference. I wouldn't say that you should do something now, but you should keep an eye on this news.

Read this post and see what you think: http://britishexpats.com/forum/showpost.ph...amp;postcount=6

I tried to draw Folinskyinla out on this topic, but he didn't reply (maybe because he doesn't know himself). There is more conversation on page two of this thread: http://britishexpats.com/forum/showthread....958#post4332958

[sophyie 0]

Thank you, Meauxna-

I will write an email to Frankfurt and if they don't answer- I'll call.

Will keep an eye on this thread and post news if there are any...

Further, the law was signed and went into effect on 7/27/06. It's the USCIS that has been sitting on it lo these many months, "interpreting" and then swinging into action in a heartbeat.

Ok, now I have a quick question- does this law make my visa invalid?

We filed my petition in Frankfurt on Sept. 1st and I had my visa in hand on the first of November.

I activated the visa just before Christmas and am now back in Germany for a little while before returning to the US for good.

ETA: I think Frankfurt has a USCIS field office and they still accept petitions filed directly in Frankfurt (at least according to a post here)

S, I don't know.

However, because your case did go through a CIS office, that may make a difference. I wouldn't say that you should do something now, but you should keep an eye on this news.

Read this post and see what you think: http://britishexpats.com/forum/showpost.ph...amp;postcount=6

I tried to draw Folinskyinla out on this topic, but he didn't reply (maybe because he doesn't know himself). There is more conversation on page two of this thread: http://britishexpats.com/forum/showthread....958#post4332958

[sophyie 0]

Ok here's what I wrote to the Frankfurt embassy and what their reply:

Hello,

I was issued a CR1 visa in Frankfurt on Nov. 1st of 2006, our petition was filed directly in Frankfurt on Sept. 1st (if I remember correctly).

My husband was a resident in Germay at the time of filing the petition.

I activated my visa on Dec. 21st in San Francisco.

Now I learned about the Adam Walsh Act which seems to have an impact on filing I-130 petitions in foreign consulates and I was wondering if this new law has any impact on the visa that was issued to me?

Is it valid, even though my petition was approved before July 27th, 2006?

Thanks, xx

Their answer:

Hello,

that has nothing to do with your case.

If you have entered the US before your visa expired, you would have a valid

status.

USCIS FRANKFURT

phew.

Thank you, Meauxna-

I will write an email to Frankfurt and if they don't answer- I'll call.

Will keep an eye on this thread and post news if there are any...

Further, the law was signed and went into effect on 7/27/06. It's the USCIS that has been sitting on it lo these many months, "interpreting" and then swinging into action in a heartbeat.

Ok, now I have a quick question- does this law make my visa invalid?

We filed my petition in Frankfurt on Sept. 1st and I had my visa in hand on the first of November.

I activated the visa just before Christmas and am now back in Germany for a little while before returning to the US for good.

ETA: I think Frankfurt has a USCIS field office and they still accept petitions filed directly in Frankfurt (at least according to a post here)

S, I don't know.

However, because your case did go through a CIS office, that may make a difference. I wouldn't say that you should do something now, but you should keep an eye on this news.

Read this post and see what you think: http://britishexpats.com/forum/showpost.ph...amp;postcount=6

I tried to draw Folinskyinla out on this topic, but he didn't reply (maybe because he doesn't know himself). There is more conversation on page two of this thread: http://britishexpats.com/forum/showthread....958#post4332958

[meauxna 15]

Great reply!

[sophyie 0]

Great reply!

I know.