By: Diego Hernandez
Background
In order to understand the process of registration of guarantees, it is necessary to know the origin of the figure of the guarantor as such.
The figure of the guarantor in Guatemalan immigration law was created with the enactment of the Immigration Law in 1997. Its objective was to verify the minimum income of foreigners applying for residency in order to ensure their subsistence in the country. However, it was only briefly mentioned, and its registration process was never instituted.
It was until 2019, with the entry into force of the National Migratory Authority Agreement No. 9-2019, which contains the Regulations for the Registration of the Guatemalan Ordinary Migratory Status of Migration, where this process was regulated as such.
Said legal body regulates everything related to the registrations made before the Guatemalan Immigration Institute, as well as the requirements and the procedure for each one. Among the registrations is the Guatemalan guarantor, which has a specific section in this regulation.
What is a guarantor and what are its obligations?
The Guatemalan guarantor is the person, whether individual or legal entity, who voluntarily commits to the Guatemalan Immigration Institute to be jointly and severally liable for the foreigner who is undergoing a visa or residency process to regularize his/her immigration status or who already has one granted, as applicable.
Article 22 of the aforementioned law establishes that among the obligations that are assigned to the person and that must be fulfilled with the foreigners, are to cover any expenses for stay, food, return, as well as to be responsible for an eventual repatriation and/or expulsion.
They must also respond with obligations before the Guatemalan Institute of Migration once they obtain their guarantor status, such as updating their registry annually, informing of any death of the foreigners, as well as giving notice of any resignation or dismissal, as applicable to the specific case.
Who needs a guarantor and who can be a guarantor?
The immigration law is clear in indicating which applications require a Guatemalan guarantor in order to be approved. In a first idea, it is thought that any person could be constituted as guarantor for the processes, but actually the capacity to be a guarantor will depend on the type of application being made.
Currently, there are three cases for which a guarantor is required.
- For tourist or traveler visa applicants. They are nationals of category “C” countries, in cases where they submit their application and do not have a round-trip transportation ticket. In these cases, the guarantor may be an individual or legal entity.
- For applicants for temporary residence. In these cases, the person who will be constituted as guarantor will depend on the type of residence being applied for. For migrant workers, it will have to be the employer, and for artists, intellectuals, researchers and scientists, it will be the contractor of the services. For investor residencies, the provisions for tourist or traveler visa applicants will apply.
- For applicants for permanent residence who have been temporary residents for a period equal to or greater than five years. In these cases, the guarantor must be the one who provided the guarantee for the previous temporary residences; therefore it can only be a legal entity.
Requirements of the guaranteed file
Mainly, what the Guatemalan Immigration Institute is looking for with the guarantor file, is that the income of the person is verified, as well as that he/she is up to date with the fulfillment of his/her tax obligations, in order to determine if he/she has the economic capacity to provide the guarantee.
Regardless of whether it is a first registration or an update, the documents that make up the file are the same. However, the requirements vary depending on whether it is an individual or a legal entity.
- Individual person
- Personal identification document and legalized copy.
- Tax solvency for the immediately preceding month, issued by the Superintendence of Tax Administration.
- Proof of income issued by an authorized accountant when not in a dependency relationship, or labor proof from the employer indicating the salary earned if in a dependency relationship.
- Bank statements for the last three months.
- Updated unified tax registry.
- Lack of current criminal and police record.
- Ornamental ticket, when applicable.
- Proof of active membership, when applicable.
- Legal entity
- Personal identification document or passport of the legal representative or agent, and legalized copy.
- Notarial certificate of appointment or testimony of the public deed of the mandate, duly registered before the corresponding registries, and legalized copy.
- Financial statements and balance sheet of the previous fiscal year; or proof of registration with a chamber of commerce or guild.
- Legalized copy of the company’s and corporation’s commercial patents.
- Updated unified tax registry.
- Fiscal Solvency of the previous month, issued by the Superintendence of Tax Administration.
- Certifications of report of companies, auxiliary of commerce and mandates of the entity issued by the General Mercantile Registry of the Republic, if applicable.
Provisional and definitive registration procedure of guarantor.
The guarantee registration process is divided into seven specific steps and lasts approximately two months from its presentation to its final ratification:
- In this stage all the documents required for each file are managed and collected.
- This refers to the formal presentation of the file before the Guatemalan Migration Institute, once it is completed. At the moment no proof of entry is issued, only a copy of the application form stamped.
- Once the file has been submitted, it is reviewed by the immigration consultant.
- In case additional information or documentation is required or there is a need to clarify any situation within the file, the migration advisor will inform the guarantor in order to correct it and continue the process.
- Field Inspection. This step consists of the immigration advisor going to the guarantor’s headquarters or domicile in order to verify its existence, as well as to consult and request documentation regarding the future foreigners for whom the guarantor will provide a guarantee. This inspection may be carried out ex officio and without prior notice at any time during the process, including when it has already been approved. At the advisor’s discretion, this step may be omitted.
- Once the field inspection or analysis is completed, the file moves to a verification status, and in a matter of days it is transferred for approval. Once ready, the migration advisor contacts the guarantor to indicate that the guarantee can be ratified.
- As a final step, the immigration consultant requires the legal representative or individual to go to the offices of the Guatemalan Immigration Institute to ratify the guarantee. This step consists of revalidating the guarantor’s data, registering a signature and photo of the guarantor, thus concluding the process.
Once the guarantee is ratified, it is valid for one year from the date of the appointment. As mentioned in the obligations that the guarantor has before the Guatemalan Immigration Institute, it is necessary to update its registration annually, at least one month in advance.
Relevant considerations
- As long as the guarantor’s registry is not updated, it will not be possible to enter residency or visa applications. Therefore, it is recommended to consider a tentative date for the entry once the guarantee is close to being approved, so that the documents do not expire.
- Throughout the registration process, it is recommended that the workers at the guarantor’s domicile be aware that they will eventually be visited in order to be prepared when the inspector arrives, and to be able to meet his or her requirements.
- Once the first registration of the guarantee has been made, the ratification step will no longer be necessary for subsequent updates, unless a different legal representative or agent is registered.
- Regarding the requirement consisting of the financial statements, which usually take time to be issued, it is advisable to submit in substitution the proof of registration with a chamber of commerce or trade association. If this is not available, the financial statements of the previous fiscal year may be submitted provisionally, under the condition of incorporating the updated ones to the file later.
- In relation to the powers that the legal representative or agent must have, it is important that they be delimited in a detailed and specific manner for the registration of guarantor before the Guatemalan Immigration Institute, both for foreigners and their dependents. By virtue of the fact that a broad and general interpretation of the faculties can be a motive of prior imposition on the file.