Applicants and would be investors will be interested to find that the National Superintendence of Immigration (hereinafter “MIGRACIONES”), is applying new guidelines for the approval of the Resident Worker visa. However, before we begin, it should be noted that these guidelines have not been officially published, rather they are the internal criteria inspectors of this entity are currently working with and which we have come to know through the practice of the legal profession.
New companies beware
In the past, many investors opted for a work-around to the Investor visa, involving the Resident Worker visa, mostly because of its excessive cost: a guaranteed investment of PEN 500,000 (around USD 150,000). This work-around involved incorporating a new company in Peru, which would then hire them under a management position, and using the resulting labor contract to apply for the worker visa.
And although highly successful in the past, this current scheme is risky given that MIGRACIONES has started cracking down on newly incorporated companies and “ghost companies”, that is companies which only exist on paper and do not have premises or employees. Concerning this particular topic, it bears notice that in case of inspection MIGRACONES may ask to the applicants to submit a copy of the hiring’s company tax registry, which in and by itself allows MIGRACIONES to check exactly how many workers are currently employed by it. Consequently, if MIGRACIONES notices that the applicant is the only hired worker for the company they might get suspicious and order an investigation.
Another relevant topic is the establishment or the premises of the company. Indeed, when it comes to incorporating new companies, it is common for law firms to list their own address as the address for the incorporating company. Likewise, sometimes investors like to list their own personal address in the application form submitted to MIGRACIONES. Nevertheless, this is currently no longer a safe strategy.
When it comes to conducting investigations and labor oversight, MIGRACIONES will always visit the address listed for the company. Needless to say, if you’ve listed your home address as the company address, even if temporarily, then MIGRACIONES could consider that you’ve been working, since they found you in “company premises” during the investigation, despite your Worker visa not being approved yet. Applicants should keep in mind that they are not allowed to work until their visa is approved, so this could damage their chances with the application. Likewise, if they visit the law firm which incorporated your company, they might be lead to believe that it’s a ghost company.
Last but not least. It has surfaced that MIGRACIONES´inspectors are asking newly incorporated companies to have a business license in order to prove your company is ready to conduct business activities.
Business licenses are issued by district municipalities in Peru, and the procedure can take an average of 17 business days. Before you apply for a business license, you will first have to apply for a building safety certificate (Inspección Técnica de Seguridad en Edificaciones – ITSE) to ensure your premises comply with all building safety regulations. Likewise, you will require a valid lease or purchase of property agreement.
If MIGRACIONES finds that you do not have a business license, they could consider such a reason grounds for the denial of your Resident Worker visa application. Therefore, it is recommended that, if you are incorporating a new company, you make sure you have at least:
- Bought or leased company premises, where your activities will take place;
- Hired some personnel and registered them on your payroll, with SUNAT (Peruvian National Superintendence of Tax and Customs;
- Obtained a business license.
By the Immigration and Labor Department at RGB Avocats © – Peruvian Attorneys-at-Law
Disclaimer: The information on this page is provided for general informational purposes only, and may not reflect the current law in Peru. It is not intended to be a substitute for legal counsel on any subject matter.