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Senior Partner
Senior Partner, Solicitor
Category: Law
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Experience:  Solicitor with more than 30 years experience
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Im a British citizen and am intending to marry a US citizen

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I'm a British citizen and am intending to marry a US citizen on a K1 fiance visa. She is my world. The only thing I'm afraid of is my past. 2 Years ago I was stopped by police and given a written caution for possession of marijuana (less than 30g). I was not arrested or convicted, the drugs were confiscated and I was sent on my way. Obviously, I'm not going to lie about it when applying for police records, when I'm having my physical or at the embassy interview. I have been clean ever since the incident, it no longer holds interest for me at all, so I am not worried about any drug tests. But if I acknowledge that I have had a history with marijuana does that ruin my chances altogether? I've been informed by immigration lawyers that a caution is treated as a conviction at the US Embassy. What can I do?
Ho = What immigration lawyers did you speak to? Was this a caution in the uK or the US ?
Customer: replied 4 years ago.

It was in the UK.

I asked at Avvo and got two responses from lawyers based in the US. The first just said "Get a lawyer".

The other has since pointed out that I can file for a I-601 for a waiver, under section 212(h) of the Immigration and Nationality Act after my interview at the embassy should my application be denied (which it probably will). He was also the one which told me that the US embassy in London treats cautions as convictions. While I could contest that it wasn't a real conviction it would be difficult and near impossible without legal help.

He finshed by saying if I was refused a visa and a waiver I could try and prove that my fiance would be under 'severe hardship' without me - but that too is difficult to prove.


I also asked the same question at Right Legal Advice but was answered with what seems to be jibberish, I don't know, maybe you can make sense of this:


"You need the legal wording in application form, which will cover it and not held you liable for misrepresentation, which could be the base of refusal.

We can help you in this regard.

Let us know when you care filling the application forms".

This whole thing is just eating me from the inside. I'm such an idiot. I'm so scared that this is all just going to blow up in my face because of my past stupidity (yes, I'm a worrier). Any knowledge, tips, advice, anything you have that might make the process easier.


-Will I definitely need a waiver?

-How difficult will it be to obtain it and the visa?

-Are there any statistics on how many people with similar problems are successful with their applications/are granted visa with waivers?

-Do I have any real chance or is my dream and impending marriage over?

-Can I stop worrying so much?

The issue here is more to do with US practice than anything else. I understand that the specific question in the visa application is whether you have ever been arrested or convicted. Which is odd in that you could be arrested and convicted but on the basis only of a caution then the answer to the question is No.

A caution may show on certain CRB checks but so far as I am aware the US authorities do not have any access to the UK records and certainly their US based immigration authorities cannot make such checks.

So you have a choice really - say No to the question ask risk them taking a negative view if in fact it even comes to light or dispose the caution and a for a waiver.

I think the answer from Right legal advice is simply to help you with the correct wording for filling in the form. You need of course to be able to give a correct and justifiable answer.

Customer: replied 4 years ago.

As much as I would like to say that I haven't been in trouble at my interview, I'm not sure as to how possible that will be. I have to submit a Police Certificate to both the medical and the interview.


When applying for the certificate itself there is the question on thew application form saying:

"Have you ever been Arrested, Cautioned, Warned or Reprimanded or been convicted of a criminal offence in England, Wales, Northern Ireland or Scotland? You must declare all convictions including those you believe to be spent under the Rehabilitation of Offenders Act 1974". It then asks for details if the answer is yes.


Now, even if I were to say "No" on the form, do you know if the certificate would be delivered to me showing the Caution or not? Because if the certificate returns with the caution I have failed to mention, both embassy and the Doctor will see the caution which will (for some inane reason) be treated as a conviction.


Is there any evidence at all to suggest that the US embassy conducts backgroud checks and CRB checks on UK citizens applying for a Visa?

I was no aware that this required you to provide the certificate and a police certificate will disclose the caution so you cannot ignore it. You will just have to apply for a waiver if they reject you. Sorry.
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Customer: replied 4 years ago.

Ok, thanks for your advice anyway.