In U.S. immigration applications, if an applicant has applied for a non-immigrant visa, such as an L-1 visa, a criminal background and security check will be done through a biometric screening. The results will then be sent to the Federal Bureau of Investigation (FBI) to run background and security checks. If the applicant’s background shows a conviction on record, the report will be reviewed.

There are mainly three types of convictions that will negatively impact the immigration application, those are:

•  Aggravated felonies: murder, sexual abuse of a minor, money laundering, drug or human trafficking;
•  Illegal drug involvement: drug trafficking, personal use and possession convictions;
•  Crimes of moral turpitude: rape, fraud and murder, generally crimes with malicious intent.

In these instances, the applicant will be disqualified; however they still have the option to request a waiver of inadmissibility. The acceptance of the waiver remains at the discretion of the authorities. In other jurisdictions, the authorities may have more flexibility in applying their discretion. This means there might be more opportunities for the applicant to provide evidence or explanations as to why the conviction should not affect their visa application.

Ultimately, the success of this process depends on the specifics of the individual case, including the nature of the conviction, the time that has passed, the applicant’s current situation, and the policies of the jurisdiction involved.

In some immigration applications, a past criminal conviction may surface, creating challenges for the team managing the process,often encouraging the applicant to disclose the conviction to their employer. This disclosure puts the HR team in a tough spot, as they must assess the impact on the proposed assignment, the employee’s continued employment, and legal or ethical considerations.

A recent case involved a successful employee who was set to relocate as part of a business expansion but had an undisclosed assault conviction. Despite avoiding prison, the employee had not informed the employer about the conviction, leaving both the employee and their lawyer uncertain about how to approach the situation. The employer, recognizing the employee’s value, decided to cancel the relocation but retained the employee in their current role.

In another instance, a new employee, who had completed all necessary checks before starting, failed to disclose a ‘spent’ conviction. While such convictions are usually not considered relevant, they can affect immigration applications. The employee’s omission led to an unexpected visa refusal, making relocation impossible and leaving their role in question.

To prevent such situations, employers must follow legal guidelines, which can limit the information they are allowed to ask from employees. However, one way to minimize the impact of a criminal conviction on immigration processes is by consulting immigration professionals, ensuring a smooth and diplomatic handling of the issue.