Will a U.K. “Caution” Affect My U.S. Immigration Application?

A “caution” is a criminal disposition in the United Kingdom that may be issued to an offender by the police as an expeditious way of dealing with minor offenses that do not require court intervention. Historically, cautions have not been treated as convictions or as “admissions” for U.S. immigration purposes because of the lack of court involvement and deprivation of liberty or property. This treatment, however, has now changed.

In late 2013, U.S. Customs and Border Protection (CBP) became concerned that foreign nationals with cautions were entering the U.S. without having their criminal histories properly vetted and asked the Department of State (DOS) to put a process in place to address these concerns. For several months, all U.K. visa applicants with cautions had their applications held in abeyance while DOS implemented a new policy.

CBP’s concerns arose from a July 2008 change in the process by which U.K. police administered cautions. Offenders are now questioned to ensure that they agree to having committed the essential elements of the underlying offense. Moreover, the caution document itself was changed to include language that the caution could potentially prevent international travel and immigration. Therefore, CBP takes the position that cautions issued following the July 10, 2008 change in procedure will likely be considered to constitute “admissions” and may be grounds for visa ineligibility, similarly to a conviction. Applicants with cautions issued prior to the July 10, 2008 change in procedure may still be found ineligible for a visa if they make an admission to a consular officer in accordance with DOS protocol.

Applicants with post-July 2008 cautions will require a waiver of inadmissibility for both nonimmigrant and immigrant visa applications.  Nonimmigrant waivers may take over six months to adjudicate. Immigrant waivers are limited in scope and do not waive most offenses involving a controlled substance.

As a caution is issued following an arrest, aliens with cautions (regardless of when issued) for crimes involving moral turpitude or controlled substance offenses are not eligible to travel to the U.S. on the visa waiver program/ESTA. Instead, they must apply for a visa at a U.S. Embassy where their offenses must be disclosed and vetted by a consular officer. Notably, the U.K.’s Rehabilitation of Offenders Act, by which certain minor offenses do not need to be disclosed in the U.K. after a certain period of time, does not apply to U.S. immigration law. Therefore, all offenses for which a caution was issued must be disclosed.  Immigration law requires full disclosure of any criminal arrests or charges, regardless of the disposition and regardless of whether or not the charges or arrests were sealed, expunged, vacated or otherwise erased.

It is critical for non-U.S. citizens who have been charged with a crime to contact experienced immigration counsel early in the criminal process in order to assess the consequences of a conviction and to work out a strategy with criminal counsel that would not jeopardize the client’s immigration status.