Sec. 402. Discretionary authority to deny family-sponsored classification petition by petitioner listed on national sex offender registry
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Section 204 ( 8 U.S.C. 1154 ) is amended by adding at the end the following: The Secretary Homeland Security may, in the discretion of the Secretary, deny a petition under subsection
(a)for classification of a spouse or child if— the Secretary has confirmed that the petitioner is on the national sex offender registry maintained by the Federal Bureau of Investigation for a conviction that individually (disregarding any aggregation due to any other conviction) resulted in incarceration for more than 1 year; the petitioner has been given at least 90 days to establish that the petitioner is not the person named on the registry or that the conviction did not result in incarceration for more than 1 year and has failed to establish such fact; and the Secretary finds that granting the petition would put a primary or derivative spouse or child beneficiary in grave danger of being sexually abused. In making the determination under paragraph (1)(C), the Secretary shall use the following principles: In evaluating a petitioner who has filed a petition for a spouse, consideration should be given to indications of how well the petitioner and the spouse know each other. Petitions filed on the basis of marriages between men and women who have had little direct, personal contact with each other should be viewed with suspicion. In cases where the petitioner and the spouse have had little direct, personal contact with each other, evidence should be submitted to establish that they have gotten to know each other in some other way. Consideration should be given to when each offense occurred for which the petitioner was incarcerated for more than a year, how serious it was, the sentence that was imposed, how long the petitioner was incarcerated, the age of the petitioner when it was committed, and the characteristics of the victim. Evidence of rehabilitation should be evaluated with respect to whether it diminishes the risk of sexual abuse to the primary or derivative spouse or child beneficiaries. The records for any previous petitions shall be examined to determine whether they provide or might lead to evidence that is pertinent to determining whether granting the petition would put a primary or derivative spouse or child beneficiary in grave danger of being sexually abused. If the Secretary intends to deny a petition under paragraph (1), the Secretary shall provide the petitioner with a notice that states the reasons for the intended denial and provides the petitioner with at least 90 days to submit rebuttal evidence. Rebuttal should focus primarily on the factors that led the Secretary to believe that granting the petition would put a primary or derivative spouse or child beneficiary in grave danger of being sexually abused. All final denials under paragraph
(1)may be appealed to the Board of Immigration Appeals. The petitioner may file a new petition whenever the petitioner has additional evidence that the petitioner believes might be sufficient to warrant granting the new petition. In all cases in which it has been confirmed that the name of a petitioner under subsection
(a)is listed on the national sex offender registry maintained by the Federal Bureau of Investigation, and regardless of whether the Secretary may exercise discretion under paragraph (1), the Secretary shall give the petitioner at least 90 days to establish that the petitioner is not the person named on the registry. If the petitioner fails to establish that the petitioner is not the person named on the registry within the time allotted, the Secretary shall provide the beneficiaries with a written copy of the information on the registry that is available to the public before making a decision on the petition. The beneficiary shall be informed that the registry information is based on available records and may not be complete. In all cases in which it has been confirmed that the name of a petitioner under subsection
(a)is listed on the national sex offender registry maintained by the Federal Bureau of Investigation, and regardless of whether the Secretary may exercise discretion under paragraph (1), the Secretary shall provide the Secretary of State with— a separate document with information about the record on the national sex offender registry that is available to the public; any additional information it has that raises concern that a primary or derivative spouse or child beneficiary may be subject to sexual abuse, including information from the registry that is not available to the public; and information about any previous petitions under subsection
(a)filed by the petitioner. When a petition under subsection
(a)is granted, if the petition is filed by a petitioner who has failed to make the demonstration of mis-identification described in paragraph (5), the consular officer shall conduct an interview with the primary or derivative spouse or child beneficiary of the petition before issuing a visa to the beneficiary. At least part of the interview must be held without the presence of the petitioner. During the private part of the interview, the beneficiary will be given a written copy of the information about the petitioner from the registry that is available to the public. This document must be written in the beneficiary’s primary language. The consular officer is required to advise the beneficiary that approval of the visa petition does not mean that there are no reasons to be concerned about his or her safety. The consular officer may return files to the Secretary of Homeland Security for further consideration in cases where the consular officer is concerned that granting the visa might put a primary or derivative spouse or child beneficiary in grave danger of being sexually abused. When returning a file under the previous sentence, the consular officer may add any additional information or observations the officer has that might have a bearing on whether the visa should be granted, including the results of any field examination that has been conducted. .
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Sec. 402
Discretionary authority to deny family-sponsored classification petition by petitioner listed on national sex offender registry
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