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BIA Holds That, Under The Adam Walsh Act And INA §204(a)(1)(viii)(I), A Petitioner Is “Convicted” Of An Offense Where A Formal Judgment Of Guilt Is Entered By A Court Or, If Adjudication Of Guilt Was Withheld, Where A Plea, Finding, Or Admission Established His Or Her Guilt And A Judge Ordered Some Form Of Punishment, Penalty, Or Restraint On Petitioner’s Liberty

February 23, 2017 Philip Levin

On January 12, 2017, the Board of Immigration Appeals (BIA or Board) decided the appeal of an I-130 immigrant visa petition denied by the Service Center Director (Director) on the basis that the petitioner is barred from having the case approved by the Adam Walsh Act, noted upholding the Director’s decision and dismissing the appeal. Petitioner had been convicted of California Penal Code §243.4(a), sexual battery by restraint, and the Director found the conviction to be for a “specified offense against a minor” under the Adam Walsh Act, noted that petitioner had not established he poses no risk to the beneficiary (his spouse) and denied the petition. Submitting proof that his conviction had been expunged under California Penal Code §1203.4, petitioner argued he had not been “convicted” but the Director held the post-conviction relief did not overcome the conviction because it was obtained per a rehabilitative statute, rather than as the result of a procedural or substantive defect in the proceedings. Petitioner also argued on appeal that the definition of “conviction” found at INA §101(a)(48)(A) did not apply to U.S. citizens like himself; the BIA requested supplemental briefing on this issue.

Initially, in its analysis, the Board held that the definition of “conviction” found at INA §101(a)(48)(A) applies to lawful permanent residents and U.S. citizens and would therefore be adopted for purposes of INA §204(a)(1)(A)(iii)(I), which states that a U.S. citizen petitioner convicted of a specified offense against a minor may only have a visa petition approved if DHS determines he or she presents “no risk” to the beneficiary. Thus, stated the BIA, a petitioner has been “convicted” where “either a formal judgment of guilt has been entered by a court or, if adjudication of guilt has been withheld, where (1) a plea, finding, or admission of facts established the petitioner’s guilt and (2) a judge ordered some form of punishment, penalty, or restraint on his or her liberty.”

The Board went on to find that the §1203.4 expungement, while releasing the petitioner from the penalties and disabilities of the offense, was actually quite limited and therefore had no effect on his conviction for either Adam Walsh Act or INA §204(a)(1)(A)(iii)(I) purposes. The opinion also rejected petitioner’s argument that his crime did not constitute a specified offense against a minor, finding the BIA’s own precedent – Matter of Inrocaso, 26 I&N Dec. 304 (BIA 2014) – allowed DHS to inquire into the facts and circumstances of the violation to ascertain both the victim’s age and petitioner’s underlying conduct. As such, the Director’s determination that petitioner had not met his burden of establishing he was not convicted of a specified offense against a minor was affirmed and the appeal dismissed. Matter of Calcano De Millan, 26 I&N Dec. 904 (BIA 2017).

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TN

The TN nonimmigrant classification allows qualified Canadian and Mexican citizens to enter the U.S. and engage in professional business activities. LPPC will help you navigate through the TN application process by evaluating your eligibility, preparing supporting documentation for your application, and ultimately filing your application. 

B-1

LPPC will guide you through the consular process to receive a B-1 visa for specific short-term business purposes ranging from contract negotiations to seminars and conferences.

O-1

O-1 visas are for persons of extraordinary ability in the sciences, arts, education, business or sports. 

J-1

Administered by the Department of State, the J-1 visa is for students, trainees, academics, researchers, professionals or experts participating in an approved Exchange Visitor program. LPPC will assist you and your sponsor with preparing the necessary paperwork and the consular process so you can begin your program at ease. 

E-1 & E-2

E-1 visas and E-2 visas are for nationals of countries with which the United States has a treaty of friendship, commerce and navigation (FCN) or bilateral investment treaty (BIT). If you are a nonimmigrant trader or investor seeking to conduct business operations or develop a new enterprise in the U.S., we will help you file for the appropriate visa. As a recognized expert in this area, Mr. Levin will provide experienced and dependable assistance with E-1 or E-2 visa applications. 

  • E-1: If you are a national of a country that conducts a significant volume of trade with the U.S. (or if you intend to develop trade between the U.S. and your home country) you might be eligible for entry under an E-1 visa. 
  • E-2: The E-2 visa allows investors from treaty countries to enter the U.S. for purposes of directing and developing a business, with all the commitments and risks implicit in entrepreneurial activity. 
L-1

The L-1 visa category is for executives, managers or professionals employed by foreign affiliates of U.S companies. The L-1 visa is divided into two classifications:

  • L-1A Intracompany Transferee Executive or Manager
  • L-1B Intracompany Transferee Specialized Knowledge
H-1B

Many companies in the United States find themselves increasingly dependent on the talent, experience and energy of foreign national workers in professional, technical or specialized occupational fields. These employees typically enter the U.S. on nonimmigrant H-1B visas for “specialty occupations.” 

With extensive experience in business immigration, you can count on LPPC to guide your company or Human Resources department in preparing and filing an H-1B visa petition.

Green Card

Family preservation and reunification is a priority for our firm. Our attorneys have advised and assisted families from all over the world with entry visas, adjustment of status, and other immigration problems. 

  • Immediate Relatives: If you are the spouse, child, or parent of a U.S. citizen, we can help you obtain a green card through an Immediate Relative petition. 
  • Family-Based Preference: If your relative is a U.S. citizen or lawful permanent resident, we can assist you with your green card application through one of the family based preference categories.
Fiances

If you are a U.S. citizen and your fiancé/fiancée or spouse is overseas, our office will assist you to navigate the CIS requirements and regulations to have the case approved and then prepare you and your spouse for the interview at the U.S. Embassy. LPPC will also help you find the best ways to resolve any problems you encounter if a waiver is required in your case.

Marriage

Immigration through marriage is a common means of obtaining permanent residence in the U.S.  Since 1991, Philip Levin & Associates has helped hundreds of couples immigrate to the U.S. and build their lives together. 

  • I-130 Petition and Adjustment of Status: If you are married to a U.S. citizen, present in the U.S. and eligible to do so, our attorneys will assist you in preparing and filing the necessary I-130 petition and I-485 adjustment of status application in the U.S.
  • Immigrant Visa Consular Processing: If you are married to a U.S. citizen and reside abroad, we will assist you in preparing and filing the IV petition with an Embassy or Consulate-General in your native country. 
  • I-751, Remove Conditions on Residence: If you have been married less than two years at the time your green card was initially approved, our office will help you in the joint petition process to become a permanent resident.