What an overseas company should do when its employee is arrested for a minor criminal offense in the U.S.

Part 1 of this three-part series addresses the company’s need to understand the nature of the employee’s criminal problem

While no overseas company would expect an employee to encounter legal trouble on business in the United States, it occasionally happens. Swift and sure action is needed to resolve the employee’s U.S. legal problem and to minimize the damage the matter might cause to the employee’s ability to travel to the United States to conduct the company’s business. This article is the first of a three-part series discussing possible scenarios and outlining the basic steps a company should take when an employee is arrested on a minor criminal offense in the United States. Part 1 addresses the company’s need to understand the nature of the employee’s criminal problem. Part 2 will provide insights into how the company may help the employee resolve the problem in the U.S. courts. Part 3 will discuss approaches to minimize the possible negative effects of the event upon the employee’s ability to travel to the United States in the future.

Getting a handle on the problem

When an overseas company’s legal department hears from an employee or a manager that the employee has encountered legal trouble while on business in the United States, several important steps need to be taken quickly, not only to learn about the matter, but also to minimize the damage the incident could potentially do to the employee’s ability to undertake future business travel to the United States.

Typically, the company will have been advised that a U.S. federal or state law enforcement agency arrested the employee, perhaps in a U.S. city, or perhaps at an airport. Naturally, the company will want to assess immediately the nature, scope and severity of the problem. Even an arrest for a relatively minor offense in the United States can have a negative effect on the employee’s ability to return.

Should the employee stay or go?

Accordingly, one of the company’s first steps in learning about the problem should be to confirm whether the employee has returned yet to his or her home country. In many cases involving minor offenses, which are the focus of this series of articles, the employee may not have informed management of the incident until well after the arrest. The employee may have obtained his release from custody in the United States by posting a cash bond. Not fully understanding the nature of the obligations under the bond to return to court, or not understanding the new difficulties the employee might have in re-entering the United States as a result of the criminal matter, the employee may already have boarded a flight home.

If the employee has not yet returned home, the best advice may be to stay in the United States in an effort to resolve the criminal matter quickly before returning home. In any criminal matter, felony or misdemeanor, a properly counseled employee can attempt to negotiate a prompt resolution of the charges, and, in many cases, this will be the employee’s preferred cause of action. Doing so, and securing the employee’s attendance at the necessary court hearings, may be easier if the employee has remained in the United States, especially if the offense is a misdemeanor matter involving a relatively minor offense. (More serious offenses naturally are more difficult to resolve quickly and will likely require a different analysis.)

On the other hand, if the employee has left the United States, counsel and the employee will need to grapple with the question of the employee’s re-entry. While counsel might work out a very favorable agreement with the prosecuting authorities, most U.S. jurisdictions will require the employee to appear in person. This series of articles will delve into greater detail later about the immigration issues associated with minor criminal matters, but re-entering the United States after an arrest usually will entail disclosure of the arrest to U.S. embassy staff or to other U.S. immigration or customs officials. The employee’s prompt return to the United States to resolve a minor criminal matter is not necessarily a sure thing, and it is usually easier to appear in court and resolve the matter without having to negotiate U.S. entry requirements for persons who have been arrested.

The company’s legal department, then, should instruct the employee to stay in the United States at least until the company and the employee can consult with a qualified U.S. criminal practitioner who will handle the matter and consider the question of how quickly and easily the matter can be resolved. If the employee already has left the United States, the issue of re-entry will be one that the U.S. practitioner, with the necessary help of a U.S. immigration lawyer, will be left to manage.

In rarer, more serious cases, the company will learn that the employee is detained at a U.S. police station or jail facility pending the posting of bond. In these cases, the company can devote its attention to securing counsel to aid in the employee’s release on bond, if possible, and can ensure that counsel consults with the employee about the issue of re-entry.

You did what during your trip to the United States?

The next immediate step is for the company to find out just what happened. A full understanding of the charges, and of the employee’s version of what happened, will be necessary to the company’s decision to aid the employee and to secure qualified U.S. counsel.

The employee is the natural first stop for information about the nature and seriousness of the offense. Interviewing the employee about all of the facts of the event, or about his or her version of what happened, is not necessarily required here, though most companies will want to know all of the facts as soon as possible. Initially, the most critical information for the company at the outset is simply what crime was alleged to have occurred, and how serious an offense it is in the applicable U.S. jurisdiction.

The distinction between “misdemeanors” and “felonies” is important. A felony in the United States carries a maximum penalty of more than a year in jail, and U.S. authorities — including border control agencies — view felonies as far more serious matters. While any criminal offense is “serious” in some sense, felony matters implicate a broader set of additional legal and reputational concerns. More commonly, the employee, while on business in the United States, was accused of committing some more minor offense, such as theft, solicitation, or misdemeanor drunk driving.

Having ascertained quickly the nature and seriousness of the charged offense, the company can move on to finding qualified U.S. counsel and helping the employee obtain a favorable resolution.

Contributing Author

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Gabriel A. Fuentes

Gabriel A. Fuentes is a former Assistant U.S. Attorney and a partner at Jenner & Block, LLP. His experience includes representing corporations and individuals before...

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