New Immigration Law Looming
A new immigration law has recently been approved, and with it come important changes in many residency categories, as well as in the treatment of illegal residents in the country (TT, Aug. 26, Nov. 4).
Although the new law was opposed by many organizations that deal with immigrants – the Catholic Church and the Ombudsman’s Office, among others – it has been promoted as necessary and of vital importance by Immigration authorities.
After many months of debate, and an initial approval that was declared unconstitutional by the Constitutional Chamber of the Supreme Court (Sala IV), a final version was approved Oct. 27. The law was recently published on Dec. 12; an eight-month moratorium started on this date, after which the new Immigration law will go into effect in mid-August of next year.
Upon first glance, the categories of rentista and pensionado remain largely the same; but when you examine the changes carefully, several potentially major problems become evident. A few of the issues pointed out here may be clarified in the regulations for the law, which will be issued at some point in the future but do not exist at this time.
IT should be noted that the law is not free of mistakes: what appears to be a clerical error apparently went unnoticed by the legislative system. Articles 77 and 78 both refer to the rentista category, and establish different requirements for approval. Article 77 basically keeps the same requirement of $1,000 a month per family for five years (which translates to a $60,000 deposit from which the bank guarantees your annuity).
Article 78 then states that the requirement is $2,000 monthly for husband and wife, plus $500 extra for each dependent to be included in the application, which would double the deposit or more. We have yet to learn how this will be solved.
One important change is that the rentista and pensionado categories become temporary residencies, whereas today they are permanent residencies. Under the new law, holders of temporary residency will be able to change to unconditional permanent residency only after three years. This
change is currently not allowed, although it was common practice until a couple of years ago.
The catch is that temporary residencies will only be granted for two years.
How the abovementioned benefit will apply is uncertain, because the new rules will not allow any temporary resident to hold this status for more than two years.
This is one reason why I would like to emphasize that if you are not currently a legal resident, you should take the necessary steps to legalize your immigration status now, before the new law goes into effect. It is my opinion – yet to be tested by the practice to be adopted by Immigration – that people who currently have or acquire their rentista or pensionado resident status before the new law goes into application, and keep it for more than three years, will be allowed to change it to unconditional permanent residency.
The new law includes inversionista (investor) as a residency category, though no requirements are mentioned. This will leave the list of requirements in the hands of the Executive Branch and subject to change from time to time, as a variable Immigration policy.
ANOTHER change is that residencies under all these categories must be filed through Costa Rican consulates abroad, as with other types of residencies. This change may seem simple, but in reality it represents major problems for new applicants.
The first obstacle is that the application must be sent to Immigration by the consulate. There have been many problems with this type of procedure in the past, as the application becomes a two-stage process. In the beginning, the consulate collects and legalizes the basic documents, such as birth certificates, marriage certificate and passport copies. After the file has reached the appropriate
department at Immigration, a resolution is drafted asking the applicant to complete the file with a sworn statement, proof of fingerprinting and any document not filed at the consulate. This causes significant delays, as all files have to be reviewed twice, and several appointments have to be obtained to follow up on the file.
While other residency categories have been modified, most of the existing work residencies and permits remain basically the same, even though their classification has changed. In the past, a common practice by Immigration authorities when reviewing work permits and work residencies was to consult the Ministry of Labor regarding the availability of qualified Costa Ricans for the position in question. Now, this consultation will be mandatory, making work-related residencies and permits very restricted.
THE law places emphasis on penalizing what is termed “trafficking of people and illegal immigration,” and special attention is given to prohibiting people who do not hold working status from performing paid activities. This should concern those “perpetual tourists” who have been “beating the system” by leaving the country for a few days every three months.
This common practice, which is not permitted today, will subject these people to the very real possibility of rejection at the border or airport upon their next entry. As per the new law, working as a tourist carries the risk of detention and immediate deportation with a five-year prohibition against entering the country.
The new law defines penalties for those who employ illegal immigrants or tourists, and establishes a legal obligation to cooperate with Immigration by informing about foreigners being employed.
Infringement of these obligations will carry significant civil and criminal penalties. Restrictions are also set forth for hotel owners, managers and staff who accommodate foreign citizens: they will be under obligation to keep records of all their guests in a special registry, which must be made available to Immigration authorities at any time, and the hotel may be subject to penalties if it provides its services to illegal immigrants. This may be difficult to check and enforce in reality, but the implications are nonetheless unsettling.
MANY changes that we still have no information about will be enacted through the regulations for the law, to be published in the future, to complete the law and include issues that were left out (not necessarily inadvertently).
My advice is to take advantage of the moratorium and legalize your situation in Costa Rica now, as it seems all the changes that have been going on at Immigration, in addition to the new law coming into effect, will make residencies even more complicated and restrictive than they are now.
For more legal advice, contact Lang & Asociados at 204-7871 or visit www.langcr.com.
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