Sezzybean

I had a caution 12 years ago for being in possession of a class A drug. I now need a visa for the US and it says I have to declare any cautions even if they are spent. Obviously, this I what I'm going to do.

The fly in the ointment is that I have been to American twice since I got the caution (once in 2007 and once in 2009) and it wasn't declared on either because my mother filled out all the forms and didn't know I had a caution.

Now Im panicking as actually the lack of declaration is worse than the actual caution in itself. Plus I didn't realise cautions had to be declared.

Can you give me some advice about the likely outcome? As if it's going to cost be a lot of money for them to say NO WAY then I will turn down the job and not bother at all.

Kind regards.

old.sparkles

Sorry, I can't help with any advice - but I have moved your post over to our US visa section where you are more likely to get responses.

Sezzybean

Thank you sparkles, I appreciate it.

ian-mstm

Take a deep breath and relax. In order for there to be a problem, the government has to demonstrate that there was willful misrepresentation on your part during your earlier entries to the US. In other words, they would have to demonstrate that you knew the cautions had to be declared and that you deliberately did not declare them. Since this didn't happen, there's nothing to be worried about. Declare the offense on your visa application and let things take their course.

Your biggest problem just now, is likely the length of time it'll take to process the visa. In all likelihood, your visa will be denied because of the offense (the US is pretty draconian when it comes to drug offenses), but you will likely be recommended for a waiver. In that scenario, the waiver will take about 6 months to process before the visa is ultimately approved. If you need to travel to the US soon - well, that's not likely to happen.

Ian

Sezzybean

Ian, thank you.

I shall go through the motions and see what happens.

I'm preparing myself for the worst outcome so it's not a shock or a crushing disappointment when they ultimately turn round and say no. I doubt I will be able to hold the job long enough for a waiver but I can still get the visa and maybe try again in the future.

Again, thank you!

crg

I'd switch 'demonstrate' to 'determine' because the burden of proof is squarely on the traveler and the decision is not subject to review.

Some old and minor drug offenses can actually be waived by the consulate without DHS concurrence and that can cut down the time.

Sezzybean

Thank you! I will keep all this in mind. 😄

mikelincs

What sort of visa are you trying to get, from your post you say'I will turn down the job'. I do suspect this will be a great deal changer, from what I have understood, a drugs could well mean you are inadmissible, full stop, but people like Ian will know a lot more than me.

Sezzybean

I thought they did it on a case by case circumstances?

If that's wrong then I respect what the American authorities say, whether it's in my benefit or not.

Although, it does seem a little unfair to punish people for errors in judgment made when they were younger. We are all human, and we all make mistakes whether those are legal or moral ones.

Still, it will be, what it will be! I shall wait and see!

ian-mstm

Normally, I'd agree that the burden of proof is on the traveler, but I don't believe that's true in the case of willful misrepresentation. The government has to make the claim that there was willful misrepresentation and then has to demonstrate its existence by examining the traveler's record.

Also, the traveler can never prove that willful misrepresentation didn't exist insofar as it's impossible to prove a negative - which would create an undue burden on the traveler.

Ian

ian-mstm

A drug conviction will make you ineligible for an immigrant visa - and, since there are no waivers for immigrant visas, yes - it's a permanent ineligibility. For a non-immigrant visa, however, waivers are available.

Ian

mikelincs

He is talking about deciding whether to accept a job or not, so I assumed it was likely to be for an immigrant visa.

Sezzybean

lol I am a 'she'.

And Ian is right, I do not need to live in America, I just need to be able to come and go for my new job. Although this new job is looking more and more unlikely by the hour.

Still, I'm in employment so at least I haven't handed in my notice at my current job.

crg

The alien bears the burden to overcome all grounds of inadmissibility per INA 291. I do agree that in practice and application of the law, the consular officers generally don't throw fraud around haphazardly (since it involves extra work and effort). They try to be prudent and can seek an advisory opinion from DHS At the end of the day, the Supreme Court routinely upholds the Doctrine of Consular Nonreviewability

INA: ACT 291 - BURDEN OF PROOF

Sec. 291. [8 U.S.C. 1361] Whenever any person makes application for a visa or any other document required for entry, or makes application for admission, or otherwise attempts to enter the United States, the burden of proof shall be upon such person to establish that he is eligible to receive such visa or such document, or is not inadmissible under any provision of this Act, and, if an alien, that he is entitled to the nonimmigrant; immigrant, special immigrant, immediate relative, or refugee status claimed, as the case may be. If such person fails to establish to the satisfaction of the consular officer that he is eligible to receive a visa or other document required for entry, no visa or other document required for entry shall be issued to such person, nor shall such person be admitted to the United States unless he establishes to the satisfaction of the Attorney General that he is not inadmissible under any provision of this Act. In any removal proceeding under chapter 4 against any person, the burden of proof shall be upon such person to show the time, place, and manner of his entry into the United States, but in presenting such proof he shall be entitled to the production of his visa or other entry document, if any, and of any other documents and records, not considered by the Attorney General to be confidential, pertaining to such entry in the custody of the Service. If such burden of proof is not sustained, such person shall be presumed to be in the United States in violation of law.

GeneralPowerpoint

What visa is being applied for?