Immigration Status of Persons Who Have Applied for Residency
Let's start by defining who a foreigner with an application in process is; we can categorize him or her as a person who has applied to the Directorate of Migration and Immigration to request a change of immigration status from TOURIST to any other condition, whether TEMPORARY or PERMANENT.
The first step in that process is to request an appointment to present the request for a change of status. With the granting of the appointment and the subsequent presentation of their documents, the application process passes in to an INTERMEDIATE stage, if the we can call it that; in effect, the person is not yet a resident, nor have they acquired the rights of the desired migratory status. But, they do acquire the possibility of staying in the country beyond what they were initially be authorized as a Tourist. This is know as being “en tramite” or literally “in process” while the sisli escort Migration and Immigration Directorate deals with the application. It is NOT a new status, it is not a consolidated legal situation, it only an indefinite period during which the applicant may stay in the country while their application is being resolved.
Because Migration and Immigration is frequently unable to give a response in a timely manner, within the period that the migration law requires, the determination of “overstay” and “extra validity of the documents” is generated. Therefore, by law, the applicant cannot be “punished” because of the ineffectiveness of the administration.
These rules seem simple and straight forward. Other rules, however, open a LEGAL LIMBO in which some residency applicants find themselves.
As we know, foreigners who have not submitted an application for migratory regularization (residency) and maintain a non-resident permission – commonly known as being a “perpetual tourist” – or those who have not requested an extension of their tourism, are obligated by law to leave the country when their current visa term expires. In this regard, Article 33, Paragraph 3 of the law says:
Foreigners will have the obligation to leave the country when the period of permission authorized by the immigration authority expires, unless there is a request for a change of category or an extension granted by said immigration authority. Any irregular stay in Costa Rican territory will cause foreigners to pay an immigration fine equivalent to one hundred dollars, currency of the United States of America (US $100.00), for each month of irregular stay in the country or, failing that, will prohibit their entry for a period equivalent to three times the time of their irregular stay. (Ed: An “Irregular stay” is interpreted as overstaying the allowed time of their Tourist Visa.)
This same subsection exhaustively indicates the exceptions; outside the case of requesting an extension of tourism, feasible only for foreigners who are authorized for periods of less than 90 days – maximum term to extend tourism – it is also indicates when a change of category has taken place.
As noted before, it is clear in the text of Paragraph 3 that foreigners requesting immigration regularization are not obliged to leave the country upon expiration, if they have started such a process. Here, however, we must then refer to Article 89 of the same legal text, which indicates:
Foreigners admitted as non-residents may change their migratory category while they are in the country, with special reference to those included in article 68 of this Law, upon payment of two hundred dollars, currency of the United States of America ( US $200.00).
The question that has always arisen from this, not only under the present law No. 8764, but also with the previous immigration laws No. 7033 and 8487, is: What is the legal status of an applicant for residency? (Someone who has entered Costa Rica on a Tourist Visa and remains after its expiration while their application is en tramite.)
In effect, none of the migratory texts specifically address that question, emphasizing for years the criterion that when requesting a specific migratory condition, the interested party accesses an expectation of right. In this transitional state, the foreigner would not be completely illegal, although they would not be effectively legal either, since the migratory category they seek has not yet been authorized!
What is dictated by the laws is more than a bit contradictory and confusing because it technically places those people in a LEGAL LIMBO and raised the question: Are they are obligated to comply with the requirements of the Tourist category in Article 33, Paragraph 3, the immigration status under which they entered Costa Rica and have left behind, or do they exist with a special category under their pending request?
The question can arise when an applicant en tramite leaves the country for any reason and returns; does a new entry visa date obligate them to comply with Article 33, Paragraph 3 or Article 89? The answer is that it is understood that the entry permission visa that is assigned to them at the time of re-entering the country will be irrelevant, and only the denial of their residency application can force them to leave the country. En tramite status formally gives the applicant the right to remain in the country during the period of process of their application for temporary or permanent residence, regardless of the date on a more recent Tourist Visa.
I close by pointing out that the rights and limitations of foreigners are clearly defined in Article 19 of the Political Constitution, and in the content of Article 31 of the General Law of Migration and Immigration, for which we derive the fact that both Costa Ricans and foreigners have the same individual and social guarantees.