Problem with B2 Visa whilst K1 is pending...

[PBJ 60]

  On 4/28/2014 at 5:36 PM, baron555 said:

How could you have visited under the VWP when you in fact have stated you are ineligible for that?

This was covered in the OP and in other threads. I have been cautioned by police twice a long time ago but did not declare these as arrests on the VWP questionnaire during multiple trips to the US. This was a genuine misunderstanding as to the nature of an arrest, and also an underestimation of the magnitude of the VWP questions.

I realise now this was inaccurate and I may be liable for misrepresentation. I have to accept this as part of the process.

Edited April 28, 2014 by PBJ

[Harpa Timsah 13,259]

So I reread your thread here about the CIMT: http://www.visajourney.com/forums/topic/493150-criminal-record-two-cautions-a-problem/#entry6968221

I think I would try to get more exposure on here about the incidents, because I am not convinced that you actually have a CIMT. I am not super familiar with them, but I am sure that there are others on this forum who could help.

I think redoing the ESTA was hasty to say the least; I don't think you can take it back now either.

I would look in the INA and FAM about CIMTs; you can find it at uscis.gov.

Good luck. Don't panic.

[PBJ 60]

  On 4/28/2014 at 6:48 PM, Harpa Timsah said:

So I reread your thread here about the CIMT: http://www.visajourney.com/forums/topic/493150-criminal-record-two-cautions-a-problem/#entry6968221

I think I would try to get more exposure on here about the incidents, because I am not convinced that you actually have a CIMT. I am not super familiar with them, but I am sure that there are others on this forum who could help.

I think redoing the ESTA was hasty to say the least; I don't think you can take it back now either.

I would look in the INA and FAM about CIMTs; you can find it at uscis.gov.

Good luck. Don't panic.

Thank you. You're so nice. As I understand it from the Dos definitions of CIMT under INA/FAM (http://www.state.gov/documents/organization/86942.pdf), it appears that 'burglary' is indeed a CIMT. These guidelines further state that my testimony of events is not relevant in deciding so, only that the 'charge' is relevant (for the record, I was not charged, only cautioned, I just can't think of another word to describe its listing on my police certificate).

I will admit I am more concerned about the controlled substance violation, for which I also received a caution. Both were admittedly naughty transgressions of a silly young man. Perhaps the combination of the two does not bode well, I don't know.

I am regretting resubmitting a new ESTA, and no I am not intending to try again, if thats even possible. To do so would be false now that I understand the correct answers to respective questions about arrests. But at least there is now a record consistent with my K1 documents filed, and i'm willing to honestly and clearly explain this action during my interview. Hopefully that will mean something come that day.

[PBJ 60]

Here's something I'd like to challenge, from the same DoS FAM guidelines:

When adjudicating a visa application for an applicant whom you (consular officer) have reason to believe has committed a crime involving moral turpitude, the officer must determine whether:

(1) The offense was purely political (see 9 FAM 40.21(a) N10);

(2) The offense committed involves moral turpitude (see 9 FAM 40.21(a) N2);

(3) The applicant has been convicted (see 9 FAM 40.21(a) N3); and

(4) The applicant has admitted or may admit that he or she has committed acts which constitute the essential elements of a crime (see 9 FAM 40.21(a) N5).

Is the CO required to determine all four points simultaneously, or any one of the four in isolation? Or do they take score?! Here, for these four queries, my answers would be NO to political, YES to CIMT (I think!), NO to conviction, and YES to admittance.

[Harpa Timsah 13,259]

You don't admit to the burglary; you said it was wrong place wrong time. You also don't have a conviction. You don't have to pass or fail all of those points, those are just the points that the officer needs to consider.

The caution as I understand is a UK legal term; the Uk subforum might be able to help with a comparison, but otherwise I would keep your questions in the wide forum to get the most answers. Is a caution a ticket? Did you pay a fine? Did you get arrested and go to the police station?

You also could use the advanced search tool here for prior pots on CIMTs.

How old were you when this happened?

9 FAM 40.21(a) N2.3-4 says that possession is not a CIMT, so the real issue is your (non) burglary, unless you get hung up for drugs at the medical.

I guess what's done is done for the ESTA, even if it was in error.

Edit: Okay, my reading on cautions says "You have to admit an offence and agree to be cautioned. You can be arrested and charged if you don’t agree.

A caution is not a criminal conviction, but it could be used as evidence of bad character if you go to court for another crime."

So, it says it is not a conviction, but you have to admit something. Rather confusing. Do you pay a fine?

Edited April 28, 2014 by Harpa Timsah

[paddington_bear 30]

Also, PBJ, if you look at the timelines here, a lot of people are getting their interviews scheduled as soon as two weeks after their medicals in London. If the CEAC says "ready," and you filled out your notification of readiness since your medical is booked, it's likely you could have a much sooner date.

It's likely my fiance's medical won't be until the end of may, but we're projecting an early July K1 issue because of it...I agree with the others that you will see her so much faster simply by getting ready to move and leaving as soon as the K1 is in hand....

[PBJ 60]

  On 4/28/2014 at 7:44 PM, Harpa Timsah said:

You don't admit to the burglary; you said it was wrong place wrong time. You also don't have a conviction. You don't have to pass or fail all of those points, those are just the points that the officer needs to consider.

The caution as I understand is a UK legal term; the Uk subforum might be able to help with a comparison, but otherwise I would keep your questions in the wide forum to get the most answers. Is a caution a ticket? Did you pay a fine? Did you get arrested and go to the police station?

You also could use the advanced search tool here for prior pots on CIMTs.

How old were you when this happened?

9 FAM 40.21(a) N2.3-4 says that possession is not a CIMT, so the real issue is your (non) burglary, unless you get hung up for drugs at the medical.

I guess what's done is done for the ESTA, even if it was in error.

Edit: Okay, my reading on cautions says "You have to admit an offence and agree to be cautioned. You can be arrested and charged if you don’t agree.

A caution is not a criminal conviction, but it could be used as evidence of bad character if you go to court for another crime."

So, it says it is not a conviction, but you have to admit something. Rather confusing. Do you pay a fine?

Yes, you are exactly right on defining a caution under UK law. There is no comparative penalty in the US. You do indeed admit to an offence, and in my case with the burglary I was caught loitering in a recently-burglarised commercial property. At 19 years old and with a head guided by beer and curiosity and misadventure, we thought it was funny. Understandably the police did not agree, however on reviewing CCTV they could see we indeed were not the perpetrators and let us go with just a caution. This is effectively a slap on the wrists and a 'don't do it again/behave yourself' kind of admonishment. There is no fine, there is no condition, but we were held at the police station whilst they saw through their investigation to the actual crime.

I am prepared to explain this to a CO and I hope it can be seen for what it is. In case my testimony is irrelevant in their judging of my situation, I am hopeful that my subject access report expands on the official response and action from police at the time. This is pending delivery.

Perhaps slightly more serious with the drug possession offence, but I would still claim the same silly youth/misadventure. It was the first time, the only time, and most definitely the last time I interacted with a controlled substance. For that reason, and I presume for the lower status of the drug under UK law (class B), I was only cautioned - again no fine, no conviction, no conditions.

[PBJ 60]

  On 4/28/2014 at 8:13 PM, paddington_bear said:

Also, PBJ, if you look at the timelines here, a lot of people are getting their interviews scheduled as soon as two weeks after their medicals in London. If the CEAC says "ready," and you filled out your notification of readiness since your medical is booked, it's likely you could have a much sooner date.

It's likely my fiance's medical won't be until the end of may, but we're projecting an early July K1 issue because of it...I agree with the others that you will see her so much faster simply by getting ready to move and leaving as soon as the K1 is in hand....

Thank you for a positive vibe - much needed!

CEAC has indeed been 'Ready' since 24 and I have since submitted everything, booked my medical and completed notification of readiness. I presume that following delivery of medical results (end of next week), I can expect to see a status update and then an interview letter.

Are you saying an interview may be issued ahead of the medical on the 6th?

I did want to visit since I have plenty of business to wrap up here before I move proper. Also a very important baby is due in the family in August, and i've promised to wait to see her. Its a lovely complication to have, so you can see that even with the Visa in hand by July, i'm still needed here in the UK for a while after!

[Hypnos 6,579]

I believe British cautions are considered convictions for US immigration law purposes.

[Mbrennan 15]

  On 4/28/2014 at 8:20 PM, PBJ said:

Are you saying an interview may be issued ahead of the medical on the 6th?

/quote]

No unfortunately it's not issued until your medical results are returned. About 2 weeks after that a date may be set. For example, my medical was April 7th, interview letter (packet 4) was mailed to me April 16th, for an interview date of May 9th.

I had heard you may get an earlier date if you put an earlier travel date and/or wedding date. I put early June as a travel date.

You can also check the US embassy London's twitter page for updates on what date they are up to for filing 'readiness for interview applications'

[PBJ 60]

  On 4/28/2014 at 8:21 PM, Hypnos said:

I believe British cautions are considered convictions for US immigration law purposes.

Great news...

[Harpa Timsah 13,259]

I just read a blog that says that the Embassy in London is currently asking for clarification from DOS on whether or not cautions are convictions.

I have seen other UK members get family visas with cautions or convictions and clear VWP misuse; this seems much less clear, to me.

What happened to the theft of a traffic cone guy? He was approved. I remember some discussions over his case.

Edited April 28, 2014 by Harpa Timsah

[Hypnos 6,579]

I remember the traffic cone guy; I had thought he was denied but I don't recall it 100%.

[paddington_bear 30]

I was going to say, I don't think the embassy grants interviews before the medical. They require the results first--but everyone in the London forums seem to be saying that they got their interviews quite quickly, and they all turned their readiness forms in before the medical

Things are moving so much faster for you (your NOA2 was issued REALLY fast), so I'd just encourage your fiancee to think of that--the surprise trip may have been because you thought htis process would take 7 months, but it's taking 4....there are still some CSC filers from your month waiting NOA2s, and there are certainly filers from TSC waiting too. SO the process is going really well I'm guessing your interview will be as speedy!!

[Harpa Timsah 13,259]

He made a million threads that he was sure to be denied but then he was approved and it was a total nonissue. I am sure of that. I tried to find his threads but there are too many! I remember some good examples about other cases too in that discussion.