A guide to the new Chilean immigration law

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Written by: Marcela Salazar, Catalina González, Munita & Olavarría

Chile has introduced a complete overhaul of its immigration system, with consequences for employers.

At the end of a seven-year legislative process, on April 20, 2021, the new in-depth reform of Chilean immigration law was published.

The new law, the “Immigration and Foreigners Law” (No. 21,325) replaces Legislative Decree No. 1,094 which has been in force for more than 40 years since 1975. The law creates a new system of immigration, restructures Chilean immigration and offers a more organized and controlled migration system.

The new law is a response to the number of immigrants, which has increased considerably in recent years in Chile, but also the result of socio-political crises in various Latin American countries that consider Chile as politically and economically stable and therefore wish to migrate. for the country.

In addition, the COVID-19 pandemic has accelerated the legislative process for the new law, as although the government has closed its borders as a preventive measure during the pandemic, irregular border crossings in the northern part of Chile have been reported. ending with the death of at least two migrants who entered this year through a mountain pass in the Andes.

The purpose of the law is to regulate the entry, stay, residence and exit of foreign nationals, their rights and duties, but also the power of the government to expel migrants who have entered Chile irregularly.

The law entered into force on February 12, 2022, with the publication in the Official Journal of Decree no. 296 (the Executive Order approves the Regulation of the Act). Following the entry into force, on May 14, 2022, of Supreme Decree No. former Legislative Decree, will no longer be in effect.

The main changes to the immigration law are presented below.

1. New Immigration Authority

The law replaces the Immigration and Migration Department of the Ministry of Interior with a new institution called the “National Migration Service”. The former immigration office has been criticized, in particular for long waiting times and delays in granting visas.

The National Migration Service and its regional directorates were created to regulate migration processes throughout the country. It is expected that all procedures and waiting times will be accelerated with the creation of the National Migration Service and its Regional Directorates. The national territory will be better covered, without concentrating all the procedures in the Metropolitan Region, in particular in Santiago.

In addition, the Service shall report the status of processing applications for residence permits every 60 working days.

2. Reform of visa categories

The law establishes new migration categories and subcategories, which will be processed and granted by the National Immigration Service. There are five main categories of visas:

Transitional stay (90 days)

This is the permit granted by the Service to foreign nationals who enter the country without the intention of settling there. It allows them to stay in Chile for a limited period.

Since the entry into force of the law, holders of a temporary residence permit who are in the country cannot apply for a residence permit in Chile. Previously, these foreign nationals could apply for a visa or residency by entering Chile as a tourist and applying through a procedure in the country. Now, the change of status in the country is limited by law.

Nevertheless, the law provides for certain exceptions to this new regulation, for example, for holders of a temporary residence permit who comply with the requirements of the law, such as proving that they have family ties with Chileans or with residents permanent, cases in which their stay in Chile is in accordance with the objectives of the National Policy on Migration and Foreigners or in other cases identified by the Undersecretary of the Interior by resolution, after a report from the Migration Service. These people will still be able to change their residency status in Chile.

The subcategories of this license are as follows:

  • foreign nationals entering the country for recreation, sport, health, study, business, family or other similar purposes;
  • crew members of ships, aircraft or land or rail transport vehicles belonging to companies engaged in the international transport of passengers and goods;
  • those provided for in the international treaties signed by Chile and currently in force;
  • foreign nationals living in border areas;
  • authorization when a person is granted conditional admission on humanitarian grounds;
  • Resident officers carrying out their missions.

Official residence

This category of permit is intended for diplomats and officials of international organizations.

Temporary residence

Temporary stay is granted to foreign nationals who can prove that they have family ties or interests in the country and whose stay is considered useful and convenient.

The law establishes the minimum subcategories of temporary residence, defined by a Supreme Decree (No. 177) which was published on May 14, 2022 in the Official Gazette. It establishes the following migratory subcategories of temporary residence:

  • family reunification permit;
  • permits for foreign nationals who carry out legitimate remunerated activities;
  • allowed foreign nationals moving to the country to study at state-recognized educational institutions;
  • permits for seasonal employees;
  • permits for work opportunities.
  • permits for foreign nationals under the custody of the Chilean Gendarmerie;
  • permits for foreign nationals who are in Chile by order of the national courts of justice;
  • permit granted for humanitarian reasons (with sub-classifications);
  • authorization for individuals under international agreements;
  • permits for members of officially recognized religious organizations;
  • permit for foreign nationals under medical treatment.
  • authorization for retired foreigners and pensioners;
  • residence permit for former holders of the definitive residence permit;
  • permits for investors and associated personnel;
  • multiple-entry business permit;
  • permits for refugees and political asylum seekers.

The Supreme Decree establishes the general and specific conditions for obtaining the temporary residence subcategories set out above. It is important to bear in mind that, as a rule, applications for temporary residence permits must be made from abroad via the electronic platform provided by the Migration Service.

There is an exception to this rule for applications for family reunification permits, permits for humanitarian reasons and permits for persons whose stay is in line with the objectives of the national policy on migration and foreigners (and other cases established by the Under Secretary of the Interior by resolution), which may be made from Chile.

Likewise, requests from people who already hold a temporary residence permit and wish to change their migratory subcategory, extend it or change the quality of the residence permit in relation to dependents, can be requested in Chile through the electronic platform provided by the Migration Service for this purpose.

Permanent residence

This authorization can be granted to foreign nationals who already have a valid temporary residence to reside indefinitely and carry out any legal activity in Chile.

However, according to Supreme Decree No. 177, holders of any of the following permits are not eligible to apply for permanent residency:

  • permits for seasonal employees;
  • permits for foreign nationals under the custody of the Chilean Gendarmerie;
  • permits for foreign nationals who are in Chile by order of the national courts of justice;
  • Authorization for foreign nationals under medical treatment.

Qualified nationality

The new category of “qualified nationalization” aims to facilitate the acquisition of nationality for those who have family ties with Chileans. Under it, foreign nationals who have only two years of continuous residence can opt for nationalization if they meet one of the following conditions:

  • He has been married to a Chilean for at least two years and they share a common house. The marriage must be registered in Chile.
  • He is a second degree blood relative of a Chilean or was adopted by Chileans.
  • He/she is the child of a Chilean who lost his nationality before his birth.

Online application

All applications will now be submitted via the National Migration Service website available at the following link: https://tramites.extranjeria.gob.cl/.

4. Penalties

The law introduces new immigration-related offenses and penalties, with different categories based on their seriousness.

5. Key points for employers

It is important to note that the law contains new regulations for employers. The law establishes the principle that foreign nationals enjoy the same labor rights as Chileans and all employers must comply with their legal labor obligations, without prejudice to the irregular immigration status of any hired foreign national. This is without prejudice to the sanctions that the labor inspectorate may apply.

In addition, employers are only allowed to hire foreign nationals who have temporary residence or permanent residence permitting them to work, or those who are duly authorized to do so. In the event that an employer hires foreign nationals without the proper permits, this will constitute a serious immigration offense subject to a fine that will vary depending on the number of employees in the organization.

In addition, the law allows foreign employees to report their employers for non-compliance with immigration, labor, or any other type of law. Foreign employees who are not authorized to carry out remunerated activities will not be penalized for working without authorization if they make such denunciations against their employer.

In conclusion, significant changes have been introduced by law that will affect foreign nationals coming to Chile and modernize our immigration system for the future.

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