Top takeaways:
-
- Even the most stringent of employee background checks can miss something that could trigger potential immigration application ineligibility.
- Full transparency of any arrest or criminal conviction in an employee’s background, no matter how seemingly small or when it may have occurred, is essential for any candidate undertaking an immigration application.
- The sooner the immigration processing team members know about the existence and circumstances of any convictions, the better chance they have of making a recommendation on best next steps or attempting to mitigate the effects
Addressing the impact of criminal convictions on immigration applications is a challenging and sensitive issue. In most instances, background checks enable potential employers to know of any past convictions before hiring, helping them to react proactively to any future issues related to the conviction. However, situations could arise when this information is discovered during employment and can have unintended consequences on a company assignment or employment-driven relocation.
A comprehensive disclosure of criminal records is generally mandated during the immigration application process. The level of detail needed and the subsequent impact significantly depend on the specifics of each case.
Understanding the Balance between Applicant and Employer
Situations might arise where information about a past conviction surfaces during the immigration application process. This can put the team managing the immigration process in a challenging situation, acting as the confidant of the applicant and having to juggle the best interests of both the applicant and the employer.
Often, this can mean encouraging the applicants to disclose the details to their employer or consenting to the their representative doing the same. Once disclosed, it places the HR team in a difficult situation. They not only need to understand the ramifications of the issue on the proposed assignment or relocation but also have to evaluate the viability of the individual's continued employment. This can involve labor law, policy, and ethical considerations.
A recent case involved a long-term employee who had achieved significant success in their role, so much so that they were asked to relocate as part of a business expansion initiative. However, during the relocation process, it was discovered that the individual had been convicted of assault during their employment. The individual, having avoided a prison sentence, had not disclosed the conviction to their employer, leaving both the employee and their lawyer in a challenging position regarding how to approach the situation with the employer. Despite the undisclosed conviction, the employer recognized the employee's strengths and contributions to the business. Ultimately, while the relocation was canceled, the employer made the decision to retain the individual in their current role.
The Policy of Full Disclosure
In another instance, a new employee who had completed the necessary checks before commencing employment had a 'spent' conviction, which they did not disclose. While 'spent' convictions are no longer active and not considered relevant for most purposes, they may factor into immigration applications. Here, the employee did not declare their conviction, leading to a surprise visa refusal. This event made the relocation untenable and left the future of the employee's role uncertain.
Avoiding such instances is not guaranteed. Employers must operate within the confines of the law, sometimes restricting the information they can request from prospective and current employees. One way to lessen the impact of a criminal conviction on an immigration application is to engage the services of immigration experts ensuring the matter is handled professionally, efficiently, and diplomatically.
US
