Prasad Patwardhan (Techno-Legal professional) 07 February 2012

Visa application - crime record verification

Would like to get our forum views on a question posed when filling Visa / Work Permit application for China.

Background:

My friend, an Indian citizen was on a US business visit during 2009 got caught by US police for drunk & drive and was given a ticket with a warning in the state of california. The matter got closed. Therefter he travelled again to US on business trips and was not asked anything in this regards by anyone at Airport... in short these subsequent visits were smooth.

Today he is writing a chinese workpermit application and has to answer a question:

Do you have any criminal record in any country.

We need an advise... Whether Drunk and drive ticket qualifies to be called criminal record from Work permit perspective, Would chinese authorities search the online records and treat this as a new offence if we answer YES, What should be the best possible way out...

Reply Follow

2 Replies

(Guest)

@Querist,

If your friend was booked under any of the offence for his/her act uder Indial penal code 1860,he/she is said to have a criminal record. Note that the degree of criminal liability is immaterial in such sense. Such act comes within the jurisdiction of wilful negligent act.

Hope that may help to add up to your knowledge.

Note- All replies should be taken as per the declartion given in my profile page.

Thanks,

Regards,

Tajobsindia (Senior Partner ) 08 January 2013

Value adding on take of Mr. Sumitra;

1. Your question reminds me of a very (controversial) now famous US Supreme Court case ref.: NASA vs. Nelson
2. In my opinion if your friend got smooth entry second time to the same STATE where previously he entered into plea of criminal record without any hiccups then same criminal record cannot be constituted as ‘background check’ by Society of Human Resource Management a non-profit body be it this time he is appearing for employment Visa in another STATE (i.e. China).
3. China after gaining entry into WTO was forced to open Federal Trade Commission’s Bureau of Consumer Protection similar body backhome and one of the Charters therein was for employers who must get permission from a candidate before conducting a background check if a third-party agency is doing the screening. Needless to say China did open up the Bureau but retained the right to give criminal background check to third-party Agency or to STATE as and when situation arise.
4. BTW, not subjecting oneself to breadth analyzer test is Criminal offence in State of California and many other States in USA, since he did offer himself voluntarily after being caught and was let off with warning the matter does not find way into Criminal Record Database to receive 'red flag' attention as background check by HR watch group.

Bottom line I donot see any such hurdles in reference to asked question before us. If your friend finds anything that he think may be of further concern ask him to raise the issue with the employer and or even during Visa interview before such screening is conducted. This will give him a chance to explain himself, while also proving his honesty and integrity.