So my fiance from the UK was granted a VWP and has traveled twice to the US. After recently asking questions in regards to a k-1 visa that we're in the process of, it came to my attention that we may have answered one of the questions no, when it should have been yes. He had a caution many years back but couldn't remember what the exact charge was or when. While we were deciding to do the VWP, he applied for a job that required a background check. It came back "No Record." So we were excited and thought we were in the clear. Comes to find out, that is not the case since they don't care if you were convicted or not. How much trouble could he be in for this?

The caution was for Handling Stolen goods (receiving). He had no knowledge of this and that is why he was only cautioned since he was in "possession of it". The question asked if he was ever arrested or convicted of any crime that resulted in serious damage to property. I had no idea that technically fell into that category.

  • Was he actually arrested before being cautioned? – phoog Jan 29 '19 at 23:52
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    AFAIK the USA treats even a street caution as an arrest requiring disclosure here. They also require spent cautions to be disclosed. – Michael Hampton Jan 30 '19 at 1:16

Unless my source for the ESTA question is incorrect, it is

Have you ever been arrested or convicted for a crime that resulted in serious damage to property, or serious harm to another person or government authority?

Since the crime of handling stolen goods (receiving) does not seem to involve serious damage to property or serious harm, it was probably fine to answer "no" to that question.

The DS-160 question for a nonimmigrant visa, however, is

Have you ever been arrested or convicted for any offense or crime, even though subject of a pardon, amnesty, or other similar action?

Because the wording of the question in the visa application is different, it is entirely reasonable to answer the question differently.

How much trouble could he be in for this?

Did he answer "no" to the DS-160 question? If so, he could be in a good deal of trouble, since misrepresentation results in permanent inadmissibility.

If he answered "yes" to the DS-160 question, then it probably depends on the mood of the visa officer. In a worst case scenario, they could argue that he was being deceptive on his prior ESTA application and find him inadmissible. More likely, they will accept that it was reasonable for him to conclude that the crime did not fall within the scope of the ESTA question.

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    Actually there is a waiver for misrepresentation. – Augustine of Hippo Jan 30 '19 at 1:15
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    @HonoraryWorldCitizen yes. "Permanent" is not the best word. – phoog Jan 30 '19 at 4:08

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