"KNOW YOUR RIGHTS"

By Tatyana Behar
on December 25, 2012

THE U.S. STATE DEPARTMENT PUBLISHES A NEW PAMPHLET FOR THE PROTECTION OF FOREIGN SPOUSES & FIANCEES.

If you are either the spouse or fiance of a U.S. citizen you may obtain a special fiancée, or "K-1" visa to be admitted to the United States. There are, however, certain requirements that have to be met before you can qualify for a K-1 (fiancé(e)) or K-3 (spousal) visa. More important, however, is how do you find out more about the person to whom you just got engaged to or are about to marry, to ensure your own safety before making a permanent move to a new country?

Obviously, there are many risks associated with meeting a new person who lives overseas, does not speak your language and who may have a dark past that you would like to know about. To address those concerns, the U.S. Department of State has recently issued a new "Rights and Protections Pamphlet" which is currently being posted on the websites of the U.S. Embassies and Consulates around the world. This crucial informational pamphlet published by the U.S. Department of State is geared towards spouses or fiancées of U.S. citizens who are encouraged to read about their rights related to domestic violence prior to their personal interview at the Embassy. K-1 and K-3 visa applicants are encouraged to question Embassy personnel about the information contained in the informational pamphlet.

The U.S. citizen ("USC") spouse of a fiancé(e) beneficiary, referred to as the "petitioner", may submit a petition for you to come to the U.S. on either a K-1 or K-3 visa, subject to certain notable limitations. A petitioner is prohibited to file a fiancé(e) petition if, for example he/she has been convicted of a "specified offense against a minor" as defined in the Adam Walsh Child Protection and Safety Act of 2007. There is an exception, to this limitation, however, where the U.S. Department of Homeland Security, in its discretion, issues a determination that the USC poses no risk to the beneficiary.

A "specified offense against a minor" may present an obstacle for a petitioner in having a fiancée petition be approved by USCIS. This is an offense that involves any of the following: (A) kidnapping (unless committed by a parent or guardian); (B) false imprisonment (unless committed by a parent or guardian); (C) solicitation to engage in sexual conduct; (D) use of a minor in a sexual performance; (E) solicitation to practice prostitution; (F) video voyeurism; (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; or (I) any conduct that by its very nature constitutes a "sex offense against a minor."

The "sex offense" provision also applies to foreign convictions, unless those were not obtained "with sufficient safeguards for fundamental fairness and due process" for the accused. This means sex offense convictions entered into in developed countries with strong, reputable legal systems, such as the U.K., Canada or Australia. This definition will probably not include such countries as Venezuela, Pakistan or Uganda. The other exception to the definition of a "sex offense" are "offenses involving consensual sexual conduct." It is defined in the Adam Walsh Act as "an offense involving consensual sex...if the victim was an adult".

There is also a way of obtaining a Waiver of the Criminal Bar pursuant to the Adam Walsh Act when applying for a K-1 Fiancée Visa. The Waiver under this provision is in the "sole and unreviewable discretion" of DHS upon a determination that the "petitioner poses no risk to the beneficiary." USCIS must take into consideration that the purpose of the Adam Walsh Act is "to ensure that an intended alien beneficiary is not placed at risk of harm" by the petitioner.

USCIS interprets the 'poses no risk to the beneficiary' provision to mean that the petitioner must pose no risk to the safety or well-being of the beneficiary, which includes the principal beneficiary and any alien derivative beneficiary."

It is very critical that a Petitioner submit relevant evidence which demonstrates, beyond a reasonable doubt, that s/he poses no risk to the safety and well-being of the beneficiary. The burden is upon the petitioner to rebut and overcome the presumption of risk. There are various documents which may be submitted to satisfy the burden of proof. Those may include: (1) proof of completion of counseling or rehabilitation programs; (2) psychological evaluations; (3) evidence of service to the community; and (4) police and court records relating to the offense. Other helpful evidence may include testimonials of friends or family members describing the circumstances of the offense.

The "totality of circumstances" test should be applied, wherein USCIS shall consider all known factors that are relevant to determine whether the petitioner poses any risk. Such factors may include, but are not limited by the following: (1) the nature and severity of the offense; (2) petitioner's criminal history; (3) the nature, severity, and mitigating circumstances of prior arrests or convictions of violent or criminal behavior that may pose a risk; (4) the relationship between the petitioner and the beneficiary; and others.
The petition will be denied unless USCIS can conclude that petitioner poses no risk to the beneficiary and/or derivative beneficiaries.

When the beneficiary is a child, the degree of risk is heightened and will be presumed. Such presumption is irrespective of the nature and severity of the petitioner's specified offense and other past criminal acts and is also irrespective of whether the petitioner and beneficiary will be residing either in the same household or within close proximity to one another. Thus, USCIS will automatically presume that risks exist where the intended beneficiary of the petition is a child. The petitioner may still rebut such presumption by submitting any of the relevant evidence listed above. Consequently, if a K-2 derivative beneficiary visa is involved and a child will be coming to the US, this provision will be analyzed.

The good news is that where children are not involved as beneficiaries, there is no presumption against the petitioner. However, pursuant to Adam Walsh Act, USCIS must still "closely examine" the petitioner's offense, because past acts of spousal abuse or other acts of violence must be taken into considered. The fact that past acts were perpetrated only against children or that petitioner and beneficiary will not be residing in the same household or in close proximity are not, alone sufficient to a finding of no risk.