Legal Update

 

By Romulo Pacheco

 

Can a Resident or a Non-Resident Work Legally? Part One

Over the years I´ve had many inquiries about Resident and Non-Resident foreigners legally being employed and working in Costa Rica. As a practicing attorney, I offer the following observations and guidelines on this subject.            

 

To begin with, the current immigration laws distinguish between two categories: Non-Residents and Special Categories (permits and others), and Residents (permanent, temporary). In this article I will address the laws and rules applying to Non-Residents and Special Categories, and cover those for Permanent and Temporary Residents in the next installment.

 

What are the rules for Non-Residents regarding employment? According to article 92 of the General Law of Migration and Foreigners (No. 8764 of September 1, 2009), Non-Residents (which includes tourists, foreigners on medical stay, and foreigners in transit) CANNOT BE EMPLOYED. Under this law there can, however, be exceptions made for those who work:

 

1) For companies engaged in the international transport of goods

2) As special guests of the High Government of the State

3) As guests of public or private institutions

4) As business managers, provided they do not receive salaries in the country

5) For media service workers whose wages are paid abroad

 

Many people who ask about this law are foreigners classified under the categories of Non-Residents. Most have, or are in the process of, applying for a Resident Authorization, whether permanent or temporary. It is important to note that, in accordance with the law, when an application for residency has been submitted by a foreigner, and is in-process, that person does NOT automatically obtain the intended immigration status; they enter a waiting period, or “legal limbo,” where additional issues may arise.

 

With regard to labor issues, the immigration law always refers to the qualification “authorized.” This means that even if a foreigner has opened an immigration application file with an expectation of approval, the status of Resident or Permittee is not authorized until the Administration gives formal approval to it. Although in the practice many foreigners, such as company executives, begin work as soon as they start the process, this is wrong; legally, they are required to wait until there is a corresponding resolution of approval before beginning work.

 

Article 175 of the previously mentioned law regulates this situation by literally stating; “No person or legal entity, public or private, may hire foreign workers who are in the country in an illegal condition or whom, even if they have legal status, are not entitled to carry out such activities.” Said another way, even if a person has applied to perform a specific job function, in the case of temporary residents or special categories, they cannot engage in tasks different than the one authorized (a painter cannot work as a plumber, etc.), without the specific authorization of the Administration, for which they would have to be recognized under a specific category.

In this sense, Permanent Residents without conditions (parents of Costa Rican minors, for example), temporary residents free of status (foreigners married to nationals, for example) and other special categories free of conditions (such as those seeking refugee status or those performing cross-border work) will not be subject to this labor restriction. The qualification “free of conditions” will always have a purely working connotation.

 

Returning to the point of this article, referring especially to whether foreigners can start work once they have started the residency application process, I must emphasize that the correct action under the law is to wait until the DGME (Director of General Immigration and Foreignhood) issues a formal authorization. Doing otherwise would be like moving ahead without permission. The practical problem of complying with the law is that the process for obtaining residency can take much longer than the three months indicated by law as the maximum period to resolve the application, once it has been submitted.

 

To recap:

  1. Employers should not hire or employ foreigners until their final authorization by the DGME. (If they do so early, employers are exposed to potential fines.)
  2. Being authorized to stay in the country as long as the residency process takes to be approved does not authorize, and it is not equivalent to, being authorized to work.