Guatemala: Immigration and Telecommuting

Written by:

Cristina Sandoval

 

 

The immigration system that regulates every matter related to the movement of people from one country to another is forced to adapt to the requirements of globalization, including labor immigration, which has been considered necessary in order to meet the scope of commercial development. Hence, it must be understood that the concept of labor immigration comprises not only immigration linked to an employment relationship but also immigration derived as a consequence of investment, trade and the provision of services. For such reason the countries, through their legislative bodies, on the one hand, encourage and on the other, limit the movement of people, since they are obliged to ensure their own interests which, on some cases, have been breached by irregular immigration.

 

Over the years, movement or displacement from one country to another for work or services provision has increased. According to a study carried out by the International Labor Organization supported by the United Nations Department of Economic and Social Affairs[1], there are in the world, 258 million of international migrants of which 164 million are migrant workers. This evidences a dominant need for updated policies, adjusted to reality exist, in order to provide protection to migrants and different ways of working that can be developed in different jurisdictions, because, notwithstanding the above, for some sectors, technology has allowed that all or most of the work or service is carried out through electronic devices and digital tools, making physical attendance or commute to a specific place, unnecessary. These work models, such as telecommuting, are being used more frequently and now even more due to the new reality that has caused the digital migration.

 

Consequently, the following question is frequent: is it feasible for foreigners to provide a service remotely in favor of a legal entity or individual person in a different territory? The answer depends on several factors, among them, the type of contract (labor, civil), the time duration (fixed term, indefinite term) and the remuneration.

 

Currently, remote work visas or “work tourists” have begun to cause a boom regarding immigration law, there are countries such as Antigua and Barbuda, Estonia, the Czech Republic and Barbados that have already implemented this type of visas, since it is generally not allowed for a foreigner to keep or develop an employment relationship in another country, without a work permit, even though, the job is remote.

 

In the case of Guatemala, the provision of a service from abroad can cause several obligations of civil, labor, immigration and tax nature. For example, a foreigner providing a service that is not bound to an employment relationship (freelance or a particular consulting), shall not be required to obtain an immigration or work permit, but the tax implications that may arise by working in either jurisdiction shall be analyzed because tax laws may consider that the income generated by services provided in that jurisdiction are levied with a tax. Now then, if a foreigner is hired through an employment relationship by a Guatemalan individual or legal entity, both parties must adhere to all the legal provisions on the matter, as well as obtain a work permit and even a temporary residence (as a migrant worker), even if that person does not reside in the country and this is because companies of any nature existing in Guatemala, must abide by the labor law. 

 

Hence, the fact that the current immigration regulations, in most of Latin America, are not fully adapted to these new and frequent work models that will continue to increase over the course of time, should be considered. Therefore, it is recommended, on the one hand, to companies that hire foreigners, and to the latter, to be sure that they are both aware of the legal implications arising from such hiring and, on the other, to States to modernize and broaden visa options that may represent an opportunity of economic and trade development.

 

[1] https://www.ilo.org/global/standards/subjects-covered-by-international-labour-standards/migrant-workers/lang–es/index.htm

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