Criminal convictions are a difficult subject to tackle. It is generally assumed that in the days of background and security checks, those possessing convictions would either not enter the corporate workforce or if they do, employers are forewarned and able to pre-empt any issues of the convictions on the future employment. If the checks do not reveal a conviction or if the conviction is obtained during employment, then a real dilemma to an HR team may occur as well as cause unplanned consequences on an assignment or employment motivated relocation.
As a blanket rule, each country will require a full disclosure of any criminal matters as part of the immigration application process. The level of detail required as well as the potential impact will very much depend on the specifics. When it comes to United States immigration applications, after an applicant has filed for a non-immigrant visa, such as an L-1, a criminal background and security check will be done through a biometrics screening that is later sent to the the Federal Bureau of Investigation to run the background and security checks. If the background of an applicant comes back with a conviction on record, then the report will be reviewed.
Inadmissible Convictions
Not all criminal offenses will negatively impact an immigration application to the United States. There are three types of convictions that will. Those are aggravated felonies, illegal drug involvement, and crimes involving moral turpitude. To best differentiate between inadmissible convictions and lower-level ones, the crimes under each of the three inadmissible convictions have been defined as the following. Aggravated felonies are those of murder, sexual abuse of a minor, money laundering, and drug or human trafficking. There are other crimes that fall under aggravated felonies, but these are the main ones. As far as illegal drug involvement goes, crimes include drug trafficking, personal use, and possession convictions.
Crimes of moral turpitude are described as crimes with malicious intent. Some examples crimes of moral turpitude are rape, fraud, and murder. In these instances, the applicant will be disqualified unless they request a waiver of inadmissibility. Whether the waiver is granted will be accepted will be at the discretion of the authorities. In other jurisdictions, there may be greater scope for discretion with the ability to document why the conviction should not hinder the application. Again, success very much depends on the specifics.
Best Interests of Applicant & Employer
When a team is forewarned, whilst never a fun process to navigate, expectations can be managed, and the matter handled sensitively and timely, but when it is a surprise that is unearthed as part of the process, it is not uncommon for an immigration lawyer to become the confidant of the applicant, with information shared that has not previously been disclosed to their employer. Almost seen as a necessary evil, the reveal is necessary to ensure that the application is handled in the most appropriate way, however this can place the lawyer in a very difficult position.
Required to act in both the best interests of the applicant and the employer, this often entails encouraging the applicant to disclose the details to their employer or consenting to the disclosure by the lawyer. Once disclosed, the HR team members are placed in a difficult position; not only do they need to understand the impact of the issue on the proposed assignment or relocation but may also need to question whether it makes continuing the individual’s employment viable. This entails labour law considerations as well as some policy and ethical review.
Two such recent events include an individual who had enjoyed successful long-term employment with their employer, to the extent where they are asked to relocate in order to grow their business. During the process it is ascertained that during their employment, the individual was unfortunately convicted of the offence of assault. Having avoided a prison sentence, the individual did not disclose the offence to their employer. The individual, and their lawyer, are then in the difficult position as to what and how this information is conveyed to the employer. In this case, the employer recognised the strengths of their employee and chose to retain their employment, although the relocation was aborted.
Full disclosure
The other instance involves a new employee who had completed the required background and security checks prior to their employment commencing. The individual possessed a ‘spent’ conviction and was not required to disclose the same as part of the checks. Spent convictions essentially mean they are no longer a live conviction and are not considered to be relevant for most purposes. They can however be considered for immigration applications. In this instance, the individual involved did not declare their spent conviction to their employer or to the immigration authorities; all parties involved were therefore surprised when the application was subsequently refused because of the offence.
In this case, the relocation was deemed to be untenable. A question mark still hovers over the future employment of the employee as a valid visa was an essential part of working within the country.
Unfortunately, there is no guaranteed way to avoid instances of the above. Employers are required to navigate the law that is available to them; and therefore, may have restrictions on the information they can ask from perspective and current employees. One way to mitigate the impact of a criminal conviction, or indeed anything else deemed to be adverse to an immigration application, is to ensure an immigration lawyer is engaged to handle the matter professionally, efficiently, and almost most importantly diplomatically.
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