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Alice H
Alice H, Solicitor/Partner
Category: Law
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Experience:  Partner in national law firm
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I have an opportunity to relocate to the USA on a company-sponsored

Resolved Question:

I have an opportunity to relocate to the USA on a company-sponsored Visa which would also cover my family.
In December 2014, my son was interviewed by the Police in connection with j/95i offence, possession of drugs: Misuse Drugs 1971 S5(2) Possess Controlled Drug class B. Will this prevent his entry to the USA on my work visa?
Submitted: 2 years ago.
Category: Law
Expert:  Alice H replied 2 years ago.
Alice H : My name is ***** ***** I'm happy to help with your question today.
Alice H : What was the outcome of his arrest and interview? Was he cautioned or charged?
Customer:

My son is 15, he was referred to the Children's reporter, he wasn't arrested or cautioned as far as we're aware. We were subsequently visited by a social worker who has recommended "no further action" to the children's reporter.

Alice H : If he was not arrested/cautioned or charged then this incident need not be declared in the visa application. Your son has no criminal record and is eligible for entry to the U.S. If you need confirmation of this view, I can refer you to the relevant part of the U.S. embassy website.
Customer:

We were advised that the interview would show up on the enhanced disclosure check that takes place on entry to the US as part of the ESTA program. We were then advised to submit for an APOC check verify this. What would the situation be if he had been charged?

Customer:

Hello - you appear to be off line now and the site says "customer action required" - can you please advise what action is required?

Customer:

Hello - can you help with this question?

Expert:  Alice H replied 2 years ago.
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Customer: replied 2 years ago.

Hello - I asked a follow up question. What would the situation be if my son had been charged or cautioned for

j/95i offence, possession of drugs: Misuse Drugs 1971 S5(2) Possess Controlled Drug class B? Thanks

Expert:  Alice H replied 2 years ago.
There appears to be a glitch for which I apologise.
Under the ESTA visa waiver scheme "...all applicants who have been arrested should also complete the personal data form VCU1 (PDF), and should provide as much detail as possible concerning their arrests/cautions/convictions, including those in a third country...."
Furthermore, "...we (US Immigration Service) recommend that anyone who have ever been arrested and/or convicted of an offense apply for a visa...."
On the basis that your son was not arrested, cautioned or convicted of any crime it seems to me that he is not required to disclose the drugs matter.
However, it is possible the incident will appear on an ACPO certificate (although there is a strong argument to say it should not because of his age and the method of disposal) and so to avoid any issue arising later you could apply for a visa and ACPO certificate although under the U.S. Immigration rules it does not appear to be obligatory.
Customer: replied 2 years ago.

Thank you.

If he was cautioned or charged under j/95i offence, possession of drugs: Misuse Drugs 1971 S5(2) Possess Controlled Drug class B then, the ACPO certificate would show that but it wouldn't automatically prevent him from being granted a visa. Is this something that would be reviewed case by case?

Expert:  Alice H replied 2 years ago.
Correct.
An arrest/caution or conviction is not an automatic bar to entry to the U.S.
The immigration rules say that if a person has a criminal history then that information must be disclosed to the authorities. An assessment is then carried out as to whether entry should be granted or not.
Had your son been arrested and/or cautioned he would probably still have been granted entry - minor indiscretions by young people who are travelling with older relatives are usually disregarded for immigration purposes.
I am sure, on the information you have provided, that your sons interview under caution and referral to the youth panel will not prevent entry to the U.S.
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