Being Hired as a Foreign Worker by a Peruvian Employer
By RGB Avocats - Corporate Lawyers in Peru
As with most countries’ approach to the employment of foreign workers, Peruvian regulations establish certain restrictions regarding the employment of foreigners in order to give preference to Peruvian workers.
Peruvian companies trying to hire foreign workers must comply with two requisites, before said workers can start rendering their services for the company. First, the work contract to be held between the Peruvian company and the worker must be approved by the Peruvian Ministry of Labor. Secondly, the contract can be executed (i.e. the worker can be included in the payroll) only once the foreign worker obtains his or her visa/carné de extranjería (foreign resident card) from MIGRACIONES (Peruvian entity in charge of Immigration and Naturalization).
Notwithstanding the aforementioned there are some notable exceptions to these requisites. Once such case is for nationals coming from Colombia, Bolivia, Ecuador and Spain, who only require that their contracts are sent to the Ministry of Labor, and do not need approval.
Another exception would be the case of foreigners married to Peruvian citizens, or who those who have parents, children or siblings who are Peruvian citizens or possess a carné de extanjeria with the migratory category of inmigrante, or those who have immigrated from a country with which Peru has concluded a citizenship agreement (such as Spain). Foreign employees who belong in one or more of the latter three categories are referred to as “Exonerated Workers”, and do not require the approval of their labor contract.
The required documentation to prove family ties will largely depend on the relationship of the applicant with the Peruvian citizen. Consequently, what the applicant needs to prove is that his family member is a Peruvian citizen and his relationship with such family member. As such: (i) in the case of a spouse, a marriage certificate and a copy of the Peruvian ID (DNI) of the citizen will suffice, (ii) in the case of a foreigner with Peruvian siblings, the birth certificates of both the applicant and the Peruvian citizen, together with the latter one's Peruvian ID (DNI) will work
Note that employers should include a clause in the labor contract, making reference to Article 3, section (a) of Legislative Decree N° 689, explicitly stating that the family relationship of the employee to a Peruvian citizen grants you exemption from prior approval of your work contract.
Exonerated Workers are also exempt from certain restrictions which apply to non-exonerated foreign employees, for example, the restrictions which establish that the total number of foreign workers in a Peruvian company must not exceed 20% of its payroll, and the wages of foreign workers must not amount to more than 30% of the total wages paid out by the company.
In the case of foreign workers who are not considered “Exonerated Workers” other types of exemptions are permitted, for instance, for highly skilled workers and those to be employed in managerial positions. It should be noted that the Ministry of Labor used to require in such circumstances, that the employer present the worker’s diploma or work certificate, providing proof of his or her qualifications. However, the law has recently changed and nowadays a sworn statement indicating previous work experience or specialized education in the field will suffice, in order to submit the contract for approval.
Additionally, work contracts must comply with several regulations. They cannot exceed 3 years, but may be renewed. Also, the employer must undertake to train Peruvian employees in the foreign worker’s field and guarantee that the foreign worker and his or her family will return to their home country.
Authorization should not take more than 5 business days. Once the contract is authorized the worker must apply for his or her working visa or for a carné de extranjería. Please note that this process may take at least two months. Note that if the foreign worker entered Peru with a tourist visa, he or she must obtain a permit to sign contracts before signing the work contract.
Finally, it should be noted that recently, in an effort by the Kuczynski administration to reduce bureaucratic obstacles, several key procedures have been eliminated from Peruvian labor legislation. As such, labor contracts subject to definite periods, which had to be registered online with the Labor Ministry within 15 days of their subscription, no longer have to be registered at all.
Likewise, the previously established requisite, which required employers to register their internship agreements, has also been eliminated. However, the company is still required to register all of its interns in its electronic employee spreadsheet.
RGB Avocats - Corporate Lawyers in Peru