Adam Walsh Act question

[Russ&Caro 1,548]

1 hour ago, SRNCR said:

Guys unless you literally are either a lawyer and can give advice or have personally experienced this do you mind if we dont guess anymore on it until I talk to the lawyers? I do appreciate your help though!

I'm pretty sure that many of the people (at least two of them but probably more) giving you advice in this thread are, indeed, lawyers and some even work in the field of immigration.

 

EDIT: one more thing... people here are rooting for you. They're giving you the best advice they can in order to maximize your potential for success.

Edited February 11, 2019 by Russ&Caro

[Crazy Cat 39,226]

1 hour ago, SRNCR said:

Guys unless you literally are either a lawyer and can give advice or have personally experienced this do you mind if we dont guess anymore on it until I talk to the lawyers? I do appreciate your help though!

You realize that this is a DIY site, right?   

[Villanelle 4,121]

4 hours ago, SRNCR said:

When it refers to 'B' and 'C' it refers to a separate subsection not the specified offences. Those separate subsections note circumstances where consensual sex with a minor is not an offense under the Act and notes how foreign convictions are treated. That's why they do not have discretion and are bound by the letter of the law. Also the original charges cannot be used because he was not 'convicted' of those crimes which is required. Please be sooo careful when giving out information like this. If I wasnt a lawyer myself you'd have me worried 😬.

 

In that matter there was no argument that he wasnt more than 4 years older than her so or that it fit under the AWA and that's why they had discretion on the matter. 

I referred you to that case because "In Introcaso, the BIA explained that a visa petitioner bore the burden of proving whether or not an offense was a “specified offense against a minor.” It held that DHS examiners were not bound by the categorical approach in determining whether any particular offense of which the United States citizen was convicted was for a “specified offense against a minor”. The BIA says that the DHS could look into facts and conduct, whether proven or not during the citizen’s criminal proceeding, to determine if it was a disqualifying offense—even where the elements of the criminal statute at issue would not have supported a finding of ineligibility. Convicted conduct is not the point, per the BIA." 

[Villanelle 4,121]

I found this with a quick google search. Act states that consensual sexual conduct is not a sex offense if, in part, "the victim was at least 13 years old
and the offender was not more than 4 years older than the victim." (Emphasis added). Although the victim
was fourteen years old at the time of the offense, the difference in age between the petitioner and the victim,
based upon their dates of birth, is four years and 27 days. Therefore, the consensual sexual conduct exception
does not apply.  https://www.uscis.gov/sites/default/files/err/D6 - Fiancees and Fiances of U.S. Citizen (K-1)/Decisions_Issued_in_2012/Nov052012_01D6101.pdf           page 4.  They were considered AWA but approved. 

[geowrian 22,335]

2 hours ago, Damara said:

I found this with a quick google search. Act states that consensual sexual conduct is not a sex offense if, in part, "the victim was at least 13 years old
and the offender was not more than 4 years older than the victim." (Emphasis added). Although the victim
was fourteen years old at the time of the offense, the difference in age between the petitioner and the victim,
based upon their dates of birth, is four years and 27 days. Therefore, the consensual sexual conduct exception
does not apply.  https://www.uscis.gov/sites/default/files/err/D6 - Fiancees and Fiances of U.S. Citizen (K-1)/Decisions_Issued_in_2012/Nov052012_01D6101.pdf           page 4.  They were considered AWA but approved. 

Good find.

So it took over 2 years for the I-129F approval, and was ultimately approved on appeal based upon a discretionary decision that the petitioner did not pose any harm to the beneficiary, not because it was considered to not fall within AWA guidelines.

For an I-130 in today's world, this looks like a few year long process at best. Also, I'm assuming the previous criminal activities (2 of which would be CIMTs) would be part of the consideration regarding any potential harm to the beneficiary.

Edited February 11, 2019 by geowrian

[JFH 12,189]

23 hours ago, Redheadguy03 said:

Your husband got approved though correct? Were you the one who tried to go to the UK originally? Or am I thinking of someone else? 

He was denied a UK visa. I’m British. He’s a USC. I was approved for a spousal visa but ours was not an AWA case and he also was not under any supervision order. Unlike the OP’s husband. 

[SRNCR 6]

I got a response from a lawyer I contacted today. They said "It may or may not be an AWA issue. In the criminal case, the government had the burden of proof and a deal was cut. In the immigration case, your husband has the burden of proof, so the standards are different. You still have a statutory interpretation issue, but a state court determination does not resolve statutory interpretation for U.S. immigration purposes. It may not even be that there was any interpretation of statute in the criminal matter, which is likely the case."

 

Sounds like something that will need to be pondered further should we engage them. Also sounds like we're going to get a lot of guessing until it comes time to actually challenge the law. I've got an infopass appointment which I will attend soon too because I requested an EAD expedite and they requested I attend to provide the evidence for it so I'll see what I can find out about what's going on. At this point theres actually nothing going on lol but we will have to see what happens in the future. 

[Boiler 43,433]

Never heard of attending to submit info on an EAD expedite, is this something new?

[SRNCR 6]

1 hour ago, Boiler said:

Never heard of attending to submit info on an EAD expedite, is this something new?

No idea. They originally accidentally put the request on my i485. Despite me calling several times during the expedite process and asking them to cancel that request so the new one could be processed on the correct form it never was cancelled and this letter had to do with going to infopass with evidence for my i485 expedite. When I called to ask what to do they said make the infopass appointment and go there with your i765 expedite proof and just tell them again at the infopass that you dont want the i485 expedited. Such a nightmare 😬

[evli1966 88]

No advice 

As a petitioner who fell under the AWA it took us 8 years to get a K1 visa. The determining factor is if he can prove he poses no threat to you.

 

I estimate our legal fees at $24k plus the costs of supporting 2 homes 1 here and 1 there and travel expenses. So well into the 6 figure range.

 

Once here the AOS went without issues.

 

Once you get the I29f or c130 are approved the rest of the process to citizenship is normal unless he reoffend or you do something.

[SRNCR 6]

On 2/17/2019 at 8:54 PM, evli1966 said:

No advice 

As a petitioner who fell under the AWA it took us 8 years to get a K1 visa. The determining factor is if he can prove he poses no threat to you.

 

I estimate our legal fees at $24k plus the costs of supporting 2 homes 1 here and 1 there and travel expenses. So well into the 6 figure range.

 

Once here the AOS went without issues.

 

Once you get the I29f or c130 are approved the rest of the process to citizenship is normal unless he reoffend or you do something.

I sent you a message yesterday just wanted to get some general info on your process if that's okay?

[LDMM 7]

I have just finished the whole Adam Walsh Act attempted immigration thing.   I started the process in 2015 and just received the Denial Notice a couple of weeks ago.   Forgive the long story, but if it helps someone else, good.   Please note: I left my husband voluntarily and moved home from the USA in 2017 so it's a bit of a different situation. 

I was in the USA visiting my husband in 2015 and whilst there, I applied for an AOS.  We had been married for a while. 

We knew about the Adam Walsh provisions, but due to his circumstances, we thought we had a good chance to be granted a waiver.  I have a minor son who applied with me (14 at the time). 
So that was in October 2015 we submitted our full application to USCIS for the I130.  I was granted the I485 3 months later and worked pretty much straight away.  My son went to school and we just went on with life.  We got our biometrics done, and then the Adam Walsh notification and biometric letter arrived around February 2016.  My husband did his biometrics and then we heard nothing until about June 2016 when we received our notice of intent to deny, based on the Adam Walsh provisions.   
So at that time we gathered the police records, as much as we could (some were denied to us, and USCIS had to get them themselves).  We submitted affidavits from me, my son, my husband's family members, professional people in the community, and we saw a psychiatrist for a report.  My husband didn't do any of the usual sex offender testing, though.  We had an immigration attorney throughout all this.   My husband's offence occurred when he was 19, 4 years before the AWA was enacted, and he entered an Alford plea and was granted probation. It was one count of sexual battery, alleged to have occurred during a backyard game. The complainant was a minor so it did result in him being placed on the SOR.  That was his only offence before or after - of that nature (that I knew about).  
So, June 2016 -  the immigration attorney also submitted a very large legal submission on my husband's case, my situation, the law in relation to, etc etc.. It was very well written. I have a legal background as well so my affidavit was long and thorough, as was my son's.  

And then nothing.   
In October 2017 I voluntarily left my husband and brought my son back to Australia.  A long sad story that I will not bore you with.  
Anyway - via my attorney, I withdrew my petition for a visa,  and did so on behalf of my son as well. My ex husband never got around to withdrawing his i130. And I couldn't do it for him. 

Ironically, I now work for an American company and have to visit for work - which is awkward due to the whole ESTA/ AOS thing.  I recently applied for and was granted a B1 visa - after a VERY difficult and unpleasant interview at the Consulate - but fair enough - everything he said to me was right.  No problems with that here.  

Two weeks ago I finally received the Notice of Denial from my immigration attorney from USCIS.  So that means from submission to denial took nearly 4 years.  A timeline for you. 

They denied the application for the following reasons: 

1.  The other offences that had happened after my husband's conviction (including one of violence to a family member - he had a DV conviction I wasn't aware of)

2.  The lack of sex offender testing by the psychiatrist.   (bear in mind, this kind of testing and psyche evaluation runs into over $1000 and I'm kinda glad now I didn't spend it!) 

3.  The presence of my son - any time a minor is involved there is absolutely risk determined to be present and it's almost impossible to remove it.  I think this alone may have even caused a denial even without the other things -  the wording of the notice is pretty strong about having a minor child in the house. 

4.  They noted that I had changed my address (obviously didn't connect the withdrawal notices) and pondered that the marriage wasn't valid anymore - it wasn't, hence why I moved back to Australia on my own.   

5.  My husband has had more convictions since I left -  not AWA ones, but still.  They didn't like this at all.  

 

So all in all, to succeed at an AWA waiver, I would suggest :  one offence only, significant evidence of rehabilitation, the psyche evaluation including the standardized sex offender testing and reporting, no other offences since the AWA matter, no minor children in the household and outstanding record keeping.  

 

I wish you luck - and I hope it helps someone else.   All the best.

   

[AJ- 3]

On 2/11/2019 at 10:29 AM, SRNCR said:

Guys unless you literally are either a lawyer and can give advice or have personally experienced this do you mind if we dont guess anymore on it until I talk to the lawyers? I do appreciate your help though!

I agree with you on that fact that a conviction is what matter. My husband and I have filed the I-130 and I-485 ( I am here in F-1) two weeks ago. My husband had AWA charges but non-AWA conviction. We consulted and attorney and they have done an extensive research and concluded a higher chance of him falling under AWA than not. We hired one anyway cuz we can afford it and will advise to do so if you can. I agree with you about how USCIS just cannot make interruption about the case the way they want, but they will and that have happened in the past. I understand your frustration ( me too) ,but the system is broken, and they have full authority over everything. Overcoming this is a very long and hard process not because of the case facts but the system itself. I would like for us to get in touch as we are both going through same/similar situation. I have red a lot of cases as well as the law itself.

 

Good Luck,

A-