If you have received a police caution, you may be wondering if you will be able to travel overseas, and in particular, if you can go to America with a police caution.
The answer to the question, can you go to America with a caution, is not a simple yes or no, and will depend on your longterm plans and goals.
In this article we will go through the various issues so you can decide whether you can travel to the US with a caution unaided, or if you need professional assistance to obtain entry to America.
Can I go to America with a caution?
If you simply plan on going on a holiday to America, traveling on an ESTA, and you don’t plan on staying in the US for work, or to live, then you may be okay to travel to the US with a caution, but you might be in technical breach of the US’s immigration rules.
The visa waiver/ESTA declaration form asks you to disclose “arrests or convictions” related to “serious damage to property, or serious harm to another person or government authority”. The form also asks about any drug related offences.
From the questionnaire you might infer that if you have a caution for, for example, minor criminal damage, you could travel to America for a holiday, even though you have a caution.
The US Embassy’s website however, somewhat contradictorily, states that they “do not recommend that travelers who have been arrested, even if the arrest did not result in a criminal conviction… attempt to travel visa free under the Visa Waiver Program”
The Embassy’s guidance therefore is broader than the ESTA questionnaire and, if followed, would impact many UK citizens who want to go to America, but have an arrest or caution. Literally millions of UK citizens have been arrested, and we imagine if the Embassy’s guidance were followed by every UK citizen travelling to the US, the Embassy would be inundated with formal Visa requests (even more than they are already).
If you have a caution, but weren’t arrested, can you go to America?
It may also be possible for someone to have a caution, without being arrested. For someone who was cautioned for an offence causing “serious harm” but was not arrested, there may be an argument to say they need not disclose anything on the ESTA form as they have neither an “arrest” nor a “conviction”. In practice, if the record were discovered, we strongly suspect the US authorities would take such a non-disclosure as a wilful failure to disclose a relevant fact.
Can the US even see my Police Caution?
The question you might ask yourself, can the US immigration authorities even get to know about a caution unless you tell them?
We have addressed this question in detail in our article here: Can United States of America Immigration Officials see my Criminal Record?
Essentially if you are just travelling on an ESTA, and have no plans to stay in the US for any length of time, then the US authorities are very unlikely to discover your caution (if you are on the Five Eyes database, you will be flagged).
Although the US authorities would typically not have access to UK criminal records, we do not recommend any traveller to America breaching any US immigration rules, particularly if they have long term plans to stay in the US.
Can I get a US visa with a police caution?
If you do plan on working in the US, or obtaining US citizenship, then a caution will cause you difficulties and will need to be declared to US authorities.
In our earlier article we discussed some of the issues related to visa ineligibility and the US: United States Waiver of Ineligibility & Criminal Records
Can I travel to America if I have a police caution?
In our experience the most common issues that arise related to police cautions and travel/work/citizenship in the US are those related to drugs, various forms of assault allegations, sexual allegations, or dishonesty offences (theft/fraud).
When going through a US Visa or Green Card application, you will be asked to provide an ACRO Police Certificate as evidence of your criminal background. If you have a caution, which will be retained until you reach 100 years (unless deleted), it will be disclosed either directly or indirectly on your Certificate. For more details about what an ACRO Police Certificate is, and what will be disclosed, then please visit here: What is a Police Certificate?
If you have failed to disclose your caution on a prior ESTA application, this will in addition be counted against you along with the caution – the failure to disclose may in some circumstances be seen as worse than the caution itself.
If you have a caution for possession of cocaine, or other Class A drugs, a sexual offence, or serious violence offence, you may find that you are permanently ineligible for a US Green Card.
Police Caution Deletion for US Immigration
If you have a caution and it is getting in the way of your dreams of moving to the US, the good news is that it is possible to have your caution deleted.
We have had hundreds of cautions deleted over the years, and we often work closely with US Attorney’s to help Visa and Green Card Applications. We will either get your records deleted, or where this is not possible, we can often provide expert evidence to the US authorities that will help to explain and mitigate a client’s criminal record.
I went to the adjustment interview on Thursday and the immigration officer completely understood our argument and approved the client’s adjustment of status application. He should be getting his actual green card next week.
Thank you so much for your help. We could not have won this case without it.
Can I go to America with a caution?
If you are still wondering if you can go to America with a caution, and you don’t know what to do, then please get in touch.
We offer reasonable fixed fees and will provide frank and no-nonsense advice from the outset.
If you currently do not have a US attorney representing you, we can refer you to specialised US/UK immigration attorneys that we have worked with for years.