S/. 3.242 pen

Immigration in Peru: the new Immigration law and its Rules of Procedure

 

By RGB Avocats – Corporate lawyers in Peru

As many foreigners are already aware of, the Peruvian government passed a new Immigration Law (Legislative Decree N° 1350) on March the 1st 2017 (hereinafter the “Law”). The rules of procedure (Reglamento), which is another regulatory piece which helps interpret and define the scope of the provisions within the law, was supposed to be published on the same day but was instead delayed until March the 27th 2017, when it was passed by means of Supreme Decree N° 007-2017-IN (hereinafter the “Rules of Procedure”).

However, it should be noted that the government entity in charge of immigration in Peru (MIGRACIONES), must still publish the compilation of administrative procedures (Texto Único de Procedimientos Administrativos), which will explicitly establish the requisites for each visa and procedure contained within the Law and Rules of Procedure. The entity is scheduled to release this compilation within 3 months.

That being said, here are some of the most notable changes contained within the Law:

1- The Tourist visa: border-hopping is no longer allowed

Before the Law was passed, foreigners could apply for a Tourist visa which was issued for a total of 183 non-renewable days. This allowed foreigners to briefly exit the country, upon the expiry of their visa, and apply for a new one in order to re-enter the territory. This practice, known as “border-hopping” has been banned by the new Law, as the Tourist visa will now be granted for a maximum period of 183 non-renewable days within a term of 365 days. This means that the holder of a Tourist visa will have to wait a total of 182 days, from the expiry of their visa, to apply for a new one.

2- Be wary of infractions and fines

The Rules of Procedure has established a series of infractions, which can lead to fines depending on the seriousness of the infringement:

Infraction Sanction

Infraction Sanction
1. Overstaying the term of a visa. 0.1% of a Tax Unit (UIT*) per day of excess: PEN 4.05 for the year 2017.
2. Exiting the country with a different travel document (be it passport or ID) than the one used to gain entry. 5% of a Tax Unit (UIT): PEN 202.50 for the year 2017.
3. Not updating your personal information on your Foreign ID Card (Carné de Extranjería) within 30 days after the change took place (change of domicile, civil status, employer, etc.). 1% of a Tax Unit (UIT) per month of excess, after the change took place: PEN 40.50 for the year 2017.
4. Not applying for an extension before the expiry of your visa, whilst staying in the country. 1% of a Tax Unit (UIT) per day of excess: PEN 40.50 for the year 2017.
5. Carrying out activities which do not correspond or are not allowed for your visa/migratory category. 10% of a Tax Unit (UIT): PEN 405.
*A Tax Unit (UIT) is a fixed amount established by the Peruvian government, which is updated every year. The Tax Unit for the year 2017 is PEN 4,050.00.

 

3- The temporary migratory categories

The Rules of Procedure makes a huge imprecision, regarding the concept of “temporary migratory categories”, as it erroneously established that the beneficiaries of such categories cannot receive income from Peruvian sources. However, we find Temporary and Designated Workers, within the category of temporary categories. Thus pay no mind to that faulty definition, as Peruvian tax law establishes that foreigners earning income from Peruvian sources must pay their taxes to the corresponding Peruvian entity (SUNAT), unless agreed otherwise by means of a double taxation agreement.

4- The Business visa: technical assistance contracts are now permitted

As stated in our previous article, this migratory category will now allow the holder to carry out activities related to technical assistance or similar, in addition to business activities, whether of commercial or legal nature or related to the execution of contracts. However it still remains a temporary visa, which will be issued for a maximum period of 183 non-renewable days in a period of one year.

Foreigners living In the Schengen Area should note that they are exempt from this visa and can freely ask for this migratory category upon entry. Beneficiaries will be allowed to stay within Peruvian territory for a period of 90 days, within a term of 6 months, and will be allowed to sign contracts without prior approval or permission from MIGRACIONES.

5- The Designated Worker visa: be mindful of your activities

Previously a temporary visa issued to foreigners who were expatriated to Peru, to render services on behalf of their company, this migratory quality has significantly changed in regards to its scope of application:

i) The Temporary version of this visa remains much the same as the previous law, allowing expatriated workers to render specific services related to a specific function or perform work which requires professional, commercial or specialized technical knowledge. The visa is granted for a term of 183 renewable days, in a period of one year.

ii) The newly created Resident version of this visa, however, limits its scope of application to highly specialized workers, who are commissioned by an international corporation, for the repair or maintenance of technically complex or advanced machinery, systems or mechanisms, as well as the performance of corporate audits and international certifications. The holder of this visa may not receive income from Peruvian sources, meaning they will have to be paid directly by their employer abroad. The visa is issued for a term of 365 renewable days.

6- The Worker visa: independent contractors now included

The Law has extended the scope of application of the Worker visa, which was previously limited to salaried workers. The new Worker visa now allows independent contracts, with an outstanding service contract, to apply for this migratory category. Likewise, the new visa allows the beneficiary to work both in the private and the public sector. The term of stay, granted to temporary workers is 183 renewable days; whereas resident workers will be granted 365 renewable days.

It should be noted however that the Rules of Procedure introduces two blunders, in regard to independent contractors applying for this visa. First off, the text requires applicants to have an active Tax Payer ID (RUC), issued by SUNAT. This is a paradox, considering that the applicant must have a Worker visa in order to apply for a Tax Payer ID (RUC).

Secondly, the Rules of Procedure erroneously establish that independent contractors cannot carry out activities on their own or for different companies, which is entirely contradictory to the definition of “independent contractor”! We believe that legislators may have hastened the release of the Rules of Procedure, without bothering to check for inconsistencies; in the meantime the text is in clear contradiction with the Law, which supersedes it.

7- The Education visa (Formacion): new category which replaces the Student visa

The Law has established a new category for foreigners interested in pursuing higher education in Peru. This new category now allows the holder not only to enroll in classes at Peruvian universities and institutes, recognized by the government, but also to carry out all forms of internship. The visa can be granted for a temporary stay, for a period of 90 renewable days; or as a resident visa, for a period of 365 renewable days.

It should also be noted that nationals belonging to the Schengen Area are exempt from this visa, and can ask authorities to be granted the category of “Student” upon entry, which shall last for a period of 90 non-renewable days in a term of 365 days.

8- The Relative of Resident visa: beneficiaries are now legally allowed to work!

The Law has expanded the legal scope of people this migratory category in order to include: spouses; domestic partners; the children of either, under the age of 18; the children of either, under the age of 28, provided that they are single and currently following studies at a university or institute certified by the government; the parents of either. Likewise, this piece of legislation expressly grants the holders of this visa the right to carry out remunerated activities, without prior approval or permission.

Finally, it should be noted that, in the event of death, abandonment or separation from the Peruvian resident, the relative shall retain their migratory status.

9- The Investor visa: an opportunity turned into a blunder

Previously known as the “Independiente” visa, applicants required an investment of USD 30,000 in order to apply for this migratory category, which is why it mostly remained unused. Now, the administration has increased the required amount to at least PEN 500,000.00 (around USD 162,500)! As if that wasn’t restrictive enough, no transfer of shares will be considered as an investment. Thus the administration has ensured that investors will instead opt for the Business or Worker visa for generations to come.

10- The Permanent visa: previously known as the “Resident visa”

The Resident visa (not to be mistaken with the category of resident visas) was a specific type of visa granted to foreigners who had legally resided in Peru for 2 years, and it allowed the holder to carry out the activities of his choice. Now it has been renamed as the Permanent visa and the requisite has been increased from 2 to 3 years of legal residence. A swing and miss by the administration, considering foreigners can apply for Peruvian citizenship after 2 years of legal residence.

11- A new headache: the creation of an ID card for temporary visas

The Rules of Procedure have established the creation of an ID, granted exclusively to the holders of temporary visas, which would like to carry out activities non-related to their migratory category (e.g. a holder of an Education visa trying to apply for a part-time job). Though the idea might sound good on principle it just means more paperwork, considering that there is already a procedure in place for work permits. It just means double the trouble.

As a whole, the Law and its Rules of Procedure place particular emphasis on the fundamental rights of immigrants, a position which is very welcome. Likewise, both legislative pieces are clear and precise. However, it’s our view that the Rules of Procedure need to be amended in order to correct the different misconceptions pointed out within this article.

By RGB Avocats – Corporate lawyers in Peru

take Spanish clases online