Under sections 204(a)(1)(A)(viii) and 204(a)(1)(B)(i)(II) of the Immigration and Nationality Act (INA), a U.S. citizen or lawful permanent resident (LPR) who has been convicted of a “specified offense against a minor” as defined in section 111(7) of The Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, 120 Stat. 587 (“Adam Walsh Act”) is generally barred from having a family-based immigrant visa petition approved on behalf of any family member. The definitions in section 111(7) of the Adam Walsh Act are codified at 42 U.S.C. 16911(7). This bar also applies to K-nonimmigrant petitions for fiancées of U.S. citizens or permanent residents.
The offenses considered to be “specified offense[s] against a minor” under section 111(7) of the Adam Walsh Act are as follows:
- A. Offenses involving kidnapping [unless committed by a parent or guardian]
- B. Offenses involving false imprisonment [unless committed by a parent or guardian].
- C. Solicitation to engage in sexual conduct.
- D. Use in a sexual performance.
- E. Solicitation to practice prostitution.
- F. Video voyeurism as described in 18 U.S.C. § 1801.3.
- 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
One provision, section 111(7)(F) (codified at 42 U.S.C. 16911(7)(F)) incorporates the Federal criminal definition for “video voyeurism” found in 18 U.S.C. 1801.3 [link]. A conviction for “video voyeurism” as described in 18 U.S.C. 1801.3 only applies for Adam Walsh Act purposes where the offender intended1 to commit the offense against a minor. The following is the text of 18 U.S.C. 1801.3:
- (a) Whoever, in the special maritime and territorial jurisdiction of the United States, has the intent to capture an image of a private area of an individual without their consent, and knowingly does so under circumstances in which the individual has a reasonable expectation of privacy, shall be fined under this title or imprisoned not more than one year, or both.
- (b) In this section-
- the term “capture”, with respect to an image, means to videotape, photograph, film, record by any means, or broadcast;
- the term “broadcast” means to electronically transmit a visual image with the intent that it be viewed by a person or persons;
- the term “a private area of the individual” means the naked or undergarment clad genitals, pubic area, buttocks, or female breast of that individual;
- the term “female breast” means any portion of the female breast below the top of the areola; and
- the term “under circumstances in which that individual has a reasonable expectation of privacy” means-
- (A) circumstances in which a reasonable person would believe that he or she could disrobe in privacy, without being concerned that an image of a private area of the individual was being captured; or
- (B) circumstances in which a reasonable person would believe that a private area of the individual would not be visible to the public, regardless of whether that person is in a public or private place.
- (c) This section does not prohibit any lawful law enforcement, correctional, or intelligence activity.
(Added Pub. L. 108-495, §2(a), Dec. 23, 2004, 118 Stat. 3999.)
Short Title of 2004 Amendment
Pub. L. 108-495, §1, Dec. 23, 2004, 118 Stat. 3999, provided that: “This Act [enacting this chapter] may be cited as the 'Video Voyeurism Prevention Act of 2004'.”
It is important to note that a conviction need not be in violation of the Federal video voyeurism statute in order to trigger the Adam Walsh Act provision which results in the denial of an immigrant visa petition. Instead, the conviction need only be for an offense “as described in 18 U.S.C. 1801.3.”
In general, a U.S. citizen or lawful permanent resident seeking to file a family-based immigrant visa petition should first consult with an experienced immigration attorney. Such an attorney will be able to assess the case and determine the path forward for addressing any issues that may arise in the petitioning context. This is especially important in cases where the petitioner has a criminal history that may trigger the prohibitions of the Adam Walsh Act.
Please see our full article on the Adam Walsh Act and immigration law to learn more [see article].
- See our article on Matter of Izaguirre, 27 I&N Dec. 67 (BIA 2017) [see article] for more information about how a conviction for an offense where the perpetrator believed that he or she was soliciting a child, but was in fact soliciting an undercover police officer, is a qualifying offense under the Adam Walsh Act.