Costa Rica: General Considerations for Hiring Foreign Personnel after the Pandemic

Written by:

Jose Andrés Gutiérrez
 

Our Political Constitution is clear indicating that foreigners shall enjoy the same individual and social duties and rights as Costa Ricans (Article 19), this includes therefore the right to be able to work in Costa Rica. For this reason it is significant to have some basic considerations when hiring foreigners; this is even more important taking into account some changes that have been incorporated into the system of the Directorate General of Migration and Foreigners (DGMF) due to the COVID-19 pandemic.

 

The first step is to know the immigration status of the foreigner in order to determine if he/she has the legal capacity to work. The simple fact of presenting or attaching to the labor application a Migratory Identity Document for Foreigners (known as DIMEX), does not necessarily grant a valid status to be able to work in Costa Rica, since there are temporary residences such as that of a dependent, which although they give a legal status within the country does not grant a work permit. The same applies to the rentista immigration category which, although it is true, grants a work permit to develop an independent economic activity, it does not grant the possibility of being a salaried person, i.e., hired by a company.

 

If the foreigner is going to request for the first time a residence (and work permit) or to change the migratory category in order to be able to work, it is important to validate his legal status within the country. If the person will be requesting a procedure for the first time, and entered as a Tourist, it is vital to know the length of stay granted by the entry stamp in the passport, since it is a requirement to have a valid stay in order to change such status. Although it was common before the pandemic to grant a maximum of 90 days as a legal stay in the country, the reality is now very different and the length of stay has been reduced. Since the opening of air borders for tourism in November 1, 2020[1], one of the new requirements for entry is to have a travel insurance for the same period of time that the person will be in the country. For this reason, if a person purchases a travel insurance with a coverage of only 15 days, for example, it is likely that his authorized stay will be limited to that period, so the person should ask for an extension of his stay as a tourist.

 

In accordance with the new administrative measures established in Resolution DJUR-01-01-2021JM, published in Scope N°5 of La Gaceta N°6 dated January 11, 2021, the requirements to be able to request the extension of tourist visa up to 90 days, requires the presentation and extension of the insurance. The insurance must cover at least the lodging and medical expenses that may be generated by the COVID-19 disease. This insurance may be one of those offered by any of the insurance companies authorized by the General Superintendence of Insurance in Costa Rica and duly registered before said authority, or a travel insurance with international coverage.

 

If the foreigner already has a job offer, an appointment must be requested for the presentation of the procedure. This appointment may be requested by the foreigner or the person who is going to carry out the immigration procedure. As a measure to avoid saturating the service areas, the DGMF enabled the 1311 call center to schedule appointments for the different procedures offered by the institution, in advance.  The drawback is that these appointments for presentations are being granted much later (about 4-5 months after the telephone request), since there is a maximum number of people that can enter per day; in addition, we must take into account the higher volume of new applications that have entered, since they could not be made between the months of March to November 2020, due to the closure of the DGMF. This delay, between the date the appointment is requested and the date of presentation, has created a legal vacuum regarding the temporary status of foreigners, since it is almost guaranteed that the maximum time as a tourist will be exceeded.

 

According to the information provided by the call center of the DGMF to our legal team, the recommendation and essential requirement will be to verify that, at the time of making the telephone appointment, it is possible to demonstrate that the person had a legal stay permit as a tourist, and such status will be verified with the day of application and not the day of document presentation. This extension or suspension of the expiration date will also apply to the validity of documents issued abroad, since it will be sought that their validity coincides with the date of the appointment request.

 

In cases where a company is going to transfer personnel from a subsidiary abroad to our country, it is always advisable to seek the necessary advice prior to the arrival of the foreigner, as there are a number of documents that will be required to be issued in their country of origin, or the place of residence where they have lived for the last few years, such as a criminal record certificate, certificates of bachelorhood and/or marriage or university diplomas.

 

These documents must always be legalized in the country of issuance, or duly apostilled, if it is a signatory country of the Hague Convention, which facilitates the method of legalization of the same certificates. Having the proper advice prior to the beginning of the process, facilitates the reduction of the time of the immigration process.

 

A common practice, due to the long waiting times for the issuance of a residency approval, is that foreign employees start working without having the legally valid status to do so (despite the risks that this implies), which in essence would be the resolution of approval of their status and due processing of their DIMEX. However, the labor-employer obligations take effect from the first day of the beginning of such work relationship within the country. Foreign workers must verify that their rights are being applied, otherwise they must go to the competent institutions (Ministry of Labor and Social Security, Costa Rican Social Security Fund, National Insurance Institute, among others); the fact of being in an irregular migratory condition does not exempt the employer from all labor obligations. For this reason, companies and employers are obliged to comply with the obligations as if it were a new hiring of a national. Failure to make such registration may result in additional fines for the hiring company by the Costa Rican Social Security Fund.

 

Remember that the Immigration Law establishes as a responsibility of the employer, to verify the legal permanence of the foreign worker, since the Law indicates that the employer who hires foreigners in an irregular condition will be exposed to a fine ranging from two to twelve times the amount of a base salary[2] (Article 177 Law 8764). Therefore, it is always important that you as a company owner be advised about the legal contingencies that may arise in the normal course of your business. Come to Consortium Legal, your business law firm, where our lawyers, experts in immigration law, will be able to provide you with advice and assistance in the handling of these processes.

[1] The entry of tourists by land will not be allowed except for those cases expressly indicated in Decree No. 42690-MGP-S. This measure will remain in force until March 1, 2021 with the possibility of being reviewed and analyzed by the Executive Branch for its extension in accordance with the epidemiological behavior of the disease. (Decree N° 42824-MGP-S)

[2] In accordance with the stipulations of the Superior Council of the Judiciary, in session No. 119-20, the amount used to set the base salary is ¢462,000.00.

 

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