Drug offences & US immigration

At some point a few weeks back, someone on here was asking about a drug caution and whether it should be declared on an American immigration application. I am an American attorney and took it upon myself to correct one of the moderators on this board who incorrectly advised that a drug caution needn't be declared.

My point was twofold.
1. While a caution is not an arrest in the UK, as there is no corollary in the US, a caution should always be declared so long as the it is within the relevant time period of the question. The same goes for spent offences. The US does not recognise that things can be "spent" in the way the UK does. So long as the question does not limit as to time (i.e. "within the last seven years") cautions and spent offences should always be declared on American visa applications. Best not to hide things and reasonably explain them away.

If you're found making a false statement, even if it's an hones mistake, you can be permanently barred and undoing that can be expensive and time-consuming!

2. I also noted at some point, in rebutting this moderator that regardless of the nature of the offence ALL drug offences should be listed. And case in point, we have Nigella's little story:

http://www.dailymail.co.uk/news/article ... light.html

Anyone who errs on the side of not declaring illegal behaviour on an American immigration application is running a serious risk. And anyone who advises others to takes such risks are committing malpractice, in my opinion.

Again for an ESTA visa, the question asks whether you have been arrested or convicted, thus, if not, there is no need to declare, in my opinion. Though, for most cautions (and really should be all), you will be arrested and thus it would need to be declared and an Embassy visit would be in order.

There is a vast difference between declaring information you are obliged to and declaring information which would be wise to, the latter not being mandatory. I think you should wise up with your malpractice term. The only question that relates directly to drugs (but for the arrest/conviction) asks if the applicant is a drug abuser or addict, a person who was once cautioned for a drugs possession can indeed be neither.

Except that US law explicitly prohibits those that have committed drug offences from using the Visa Waiver Program (and thus ESTA) in the first place.

Yes, those who are arrested or convicted are, indeed, no-one disputes that.