Hello Jonathan. I had a feeling that had been the issue. I was almost done writing the answer below when the "opt out" notice came which meant that I wasn't allowed to respond to you anymore. I had to ask Nicole to opt me back in (thanks Nicola) and it took until now for them to do so. Sorry for delay. As to the follow-up, unfortunately, as a licensed attorney, I can never recommend that you be anything but honest on your applications. The question is very direct and forward. If it wasn't direct and forward and clear, I would say, "If they don't ask, don't tell don't disclose" because failing to disclose something that is not asked for is not lying. However, they specifically ask in the visa applications. If you want me to be specific, I will::
Could you elaborate on the above? Please could you provide an indication of risk?
The risk is low, but it is a risk that I cannot advise that you take. Please re-read what I posted above because IF you do not answer honestly and IF they find out about it, it is a permanent bar for fraud or misrepresentation. Keep in mind that in the future, when you apply for perhaps a green card and maybe U.S. Citizenship in the future as well, they do deeper background checks and if they discover that you misrepresented way back when to get this visa, you could lose all your U.S. immigration benefits and similarly end up with a permanent bar plus a deportation. I've seen it happen a number of times where people are in the U.S. with green cards many years, but then apply for U.S. Citizenship to then be denied and stripped of their green cards because of some old misrepresentation to get an immigration benefit. So be careful. I tell you this because I care and don't want to see you get into trouble.
What is the likelihood they will have access to my spent caution? In your experience have you seen this happen before?
The likelihood is low, but I have seen it become an issue in the future with deeper background checks.
What is the likelihood that if I do disclose spent caution that I will become ineligible?
That's my whole point, the spent caution is NOT a conviction for U.S. immigration purposes. It is NOT going to make you ineligible. What could make you ineligible is if they believe that you are a drug addict. I already explained how to have them not think that you are.
Finally, let's say that in the unlikely event they do believe that you are an addict (which I don't see how they could think that since it will be more than 2 years since this issue and it was just one pill, etc.), there is even a waiver available under INA 212(d)(3)which can either be done by the immigration officer at the interview or after just on their computer (take a look at this link):
You can find more information here:
So first, I really think you need to be honest about this and provide certified copies of the police report and caution, and provide any other evidence that you can show good moral character and medical evidence that you have no issues. I think you would have an excellent chance of approval. Second, even if it does become an issue, you would be an excellent candidate for a 212(d)(3) waiver.
So be honest because I have every confidence that you will be ok.
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