Immigration Guidelines for Foreigners Desiring to Work in Peru

Alberto Varillas

Published in NYSBA International Law Practicum, Autumn 2007, Vol. 20, No.2

I.         Introduction

Foreign citizens who enter Peru seeking employment are subject to the provisions of Decree Law Nº703, Foreignness Law (Ley de Extranjería), and to Legislative Decree N°689, Foreigner Employees Employment Law (Ley de Contratación de Extranjeros) among other laws and regulations.  Tourists are not allowed to work in Peru or even to enter into an employment contract (unless they obtain a special permit only for purposes of executing the contract); therefore having the proper visa when entering Peru is of the utmost importance in order to meet the legal requirements for a foreign citizen interested in working in Peru. This article covers, in a broad way, those legal requirements and contains some additional information regarding the employment contract a foreign citizen will need to enter into with a local employer, as well as a description of some of the main benefits the foreign citizen will be entitled to according to Peruvian laws.

II.      Immigration Law Procedures and Requirements

                  A.      General Framework

                  To better understand Peruvian immigration law, there are several basic principles with which one must be conversant.  These include the following:

          (1)    All visas are for a specific purpose and a specific time. All foreign nationals seeking entry to Peru should hold the correct immigration permission for their intended activities and length of stay.

          (2)    All visitors must demonstrate their intent to leave the country.  Anyone seeking to visit Peru must be able to demonstrate that they intend to enter for a limited purpose and that they will depart when that purpose is accomplished.

          (3)    Failure by a foreign national to maintain lawful status may subject both the individual and the sponsor to significant penalties.  The employer is the sponsor of its employees in Peru.  The failure of its employees to act in accordance with the terms and conditions of their immigration permission (including engaging in activities outside the scope of their status) can result in fines and penalties for the individual and for the employer.

          (4)    Foreign nationals are not permitted on a Peruvian employer payroll or entitled to begin a Peruvian work assignment with an employer without valid work authorization.  No employee may enter Peru in advance of the required work authorization to start working. Preliminary meetings or visits are allowed.

          (5)    Violations of Peruvian immigration laws can have significant adverse effects on the individual and the sponsor. A person who enters Peru is granted entry for a specific purpose.  Undertaking activities that do not correspond to that purpose can have serious adverse consequences for both the individual and the sponsor.  Noncompliance can have a profound effect on the employer’s future sponsorship of other foreign nationals or its activities.  Failure to act in accordance with Peruvian laws and policies can result in criminal and civil penalties.

                   B.      Migratory Status

                            Foreign nationals can be admitted to Peru with the following migratory statuses:

          (1)    Diplomatic, Consular or Official: This status is granted according to special dispositions issued by the Ministry of Foreign Affairs.

          (2)    Political Asylum and Refugee: This status is applicable subject to special regulations issued by the Ministry of Foreign Affairs.

          (3)    Tourist: That status is for foreign nationals who enter to Peru without seeking residence.

          (4)    Transit: This status is for foreign nationals that enter Peru in transit with other country as their final destiny.

          (5)    Business: This status is available for foreign citizens not seeking residence but with the purpose of executing contracts and performing transactions. It does not allow the foreign citizen to receive income from a local source.

          (6)    Artist: This migratory status refers to those foreign nationals coming to develop remunerative artist activities. It is a requirement to have a contract duly approved by the appropriate authority in order to apply for the visa.

          (7)    Crew Member:  This status applies to persons employed in working on or servicing foreign ships, vehicles and airplanes who are not seeking residence. They are not allowed to receive revenue from Peruvian sources.

          (8)    Religious: This status is a special one for members of religious organizations recognized by the Peruvian state. This migratory statute refers to those foreign nationals coming to Peru to perform activities related to the religion they profess.

          (9)    Student: This status is for foreign nationals entering Peru to study at schools or institutes recognized by the Peruvian government.

          (10)  Work: This status is for foreign nationals entering Peru to engage in labor activities under an employment contract with a company operating in Peru or for those national workers from foreign companies who travel to Peru to provide services.

          (11)  Independent: This status applies to foreign nationals entering Peru to make investments, enjoy usufruct from their rent, or practice their profession in an independent way.

          (12)  Immigrant:  This status applies to foreign nationals that come to Peru to develop their activities in a permanent way.

          These migratory statuses are classified into two groups:  (i) temporary visas, i.e., tourist, business, artist, crew member and transit migratory statuses; and (ii) resident visas, which encompass all the others.

C.        Migratory Status of Employee’s Family

          Once the foreign national has obtained the migratory status, such status may be applicable to his or her relatives (parents, spouse and minor children), through a “Llamado de Familia” (or “family call”) request. Certificates of marriage and/or birth as issued by the competent authorities, duly legalized and notarized by the proper Peruvian Consulate are required to apply for a “family call” visa.

          D.     Visas

Many foreign nationals are allowed to come to Peru under a tourist visa without any prior requirement. However, this must be confirmed on a case-by-case scenario based on the foreigner’s nationality.  Entry clearance (i.e., a visa) is normally issued for a specific purpose and is inserted in the passport at a Peruvian diplomatic post outside Peru.

Regardless of the foregoing, holding a Peruvian visa does not guarantee entry to Peru.  An Immigration Officer may refuse entry to any person holding a visa in a number of circumstances, such as the following:

  • The person has been deported from Peru or other country;
  • The person has a criminal record;
  • The Peruvian Health Authority considers entry a serious danger to the Peruvian population;
  • The person has not given all the information relevant to his or her visit to Peru upon making the application;
  • The person has, with or without knowledge, given false information to support the application; and
  • There has been a change of the circumstances or reasons for going to Peru since the visa was issued.

           Entry clearance is normally issued for a specific purpose.  If the reason for going to Peru changes the holder may need to obtain a new visa. 

          The temporary visa may be used by its holder within a period of six months after its date of issuance and allows a single entry and stay in the country during the entire effective period. If a temporary visa bearing the “multiple” seal is granted, it will allow the holder to receive income for a source different from the initial one while the visa is in effect. A temporary visa authorizes the admission and permanence of foreign nationals in Peru for up to 90 days, which may be extended in some cases.

          The holder of a resident visa may use it during a six-month period after its issue date.  It authorizes the admission and residence of a foreign national for up to one year, which may be renewed as long as the foreign citizen fulfills the residence conditions. Resident status allows a foreign national to depart and re-enter the country during the entire effective period.

          E.     Enforcement of Peruvian Immigration Law

          Peruvian immigration law is complicated.  Various agencies enforce the laws, regulations and policies applicable to all foreign nationals entering Peru. The relevant agencies are as follows:

  • The Immigration Authority (or Dirección General de Migraciones y Naturalización - DIGEMIN), whose responsibilities include general immigration matters and issuance of visas and foreign identification cards. The Immigration Police are part of this agency;
  • The Ministry of Labor and Employment, which is in charge of the approval of employment contracts with foreign citizens; and
  • The Ministry of Foreign Affairs, whose responsibilities include the issuance of visas outside Peru.

II.      Coming to Work to Peru

            A.            Obtaining a Visa

            In general, foreign visitors to Peru are admitted under a tourist visa without any prior requirement. Nevertheless, before making travel plans all foreign nationals must determine their entry clearance requirements.

            B.            Business Visa

            Foreign nationals require a business visa to visit Peru on business.  Business trip visas are issued for specific short-term assignments on behalf of a foreign company. The holder of a business-trip visa is not allowed to receive any remuneration for his or her services from Peruvian sources but is allowed to sign documents in his or her name or on behalf of a company. The holder of this visa is not allowed to work in Peru for the benefit of a Peruvian company, even if no remuneration is paid in Peru. Thus, a business-trip visitor may come to Peru to transact business, such as attending meetings and conferences, fact-finding missions, or to negotiate and sign contracts.

            These visas are valid for 90 days and may be extended for a further 30 days.  A business-trip visa usually allows single entry but may allow multiple entries.

            Business-trip visas must be obtained by the individual at the Peruvian diplomatic post with jurisdiction over his place of residence. For such purpose, the following documents are usually required:

  • application form;
  • the individual’s original passport;
  • photographs of the individual;
  • a letter or statement issued by a Peruvian company or the future Peruvian employer indicating the purpose of the individual’s business trip to Peru, the places that will be visited and a guarantee that it will bear the person’s expenses during the trip; and
  • the appropriate fee.

            Processing time varies between diplomatic posts; however, the visa is usually issued in one or two days.

            C.            Work Visas

            This section addresses the most common work visas obtained by foreign citizens coming to work to Peru.

            1.         Residence Visa Based on Employment Contract (Residence Work Visa)

            The residence work visa is based on an employment contract, subject to a minimum term of one year, previously approved by the Labor Administrative Authority and applies to foreign citizens who are employed directly by a Peruvian company.  This visa will authorize residence in Peru for one year, and it may be extended by one-year  terms as many times as required and as long as it is supported by an employment contract.

            An application for a residence visa based on an employment contract must be submitted in Peru to DIGEMIN by a Peruvian company or by the employee while in Peru. In the first case, the visa application will be submitted in Peru, and, once the application has been approved, the employee must attend the Peruvian diplomatic post previously elected for the visa to be endorsed in the employee passport.  If the residence visa is to be applied by the employee while in Peru, the employee should enter Peru with a business visa issued by the Peruvian diplomatic post and apply in Peru for a change of visa. As part of the procedure, an INTERPOL certificate will be needed. This is a document that has to be requested in Peru, and the procedure can be initiated the first time the employee arrives in Peru under a residence visa or business visa.

            A residence visa is usually issued within 45 to 90 days after application. The following documents are usually required:

  • an application form;
  • Tarjeta de Embarque (Immigration Form);
  • a certified copy of the applicant’s passport;
  • an employment contract previously approved by the Labor Administrative Authority;
  • the appropriate fee.

The process is complete when the foreign citizen is granted a foreigner’s ID (carné de extranjería), which will be his or her official identification document for all purposes while working in Peru.  An individual’s entry into Peru will be regarded as illegal, and employee may be subject to expulsion, if he or she is found working in Peru without this visa.

            2.        Residence Visa Based on a Technical Services Agreement

      Another type of residence visa is a visa for foreign citizens who are employed by a foreign company that has entered into a technical services agreement with a Peruvian company for a minimum of a one-year term.  Holders of this visa may not be considered an employee of the Peruvian company, nor may they receive remuneration in Peru other than housing allowances and travelling expenses (if any).  An application for a residence visa based on a technical services agreement must be submitted in Peru to DIGEMIN by a Peruvian company or by the foreign national while in Peru. In the first case, the visa application will be submitted in Lima, Peru, and once the application has been approved, the individual must visit the Peruvian diplomatic post previously selected to have the visa to be endorsed in his passport.  As part of the procedure, an INTERPOL certificate will also be needed and is to be requested locally.   These visas are usually issued within 45 to 60 days after application.  The following documents are usually required:

  • an application form;
  • a certified copy of the applicant’s passport;
  • Tarjeta de Embarque (Immigration Form);
  • a services contract executed between the foreign company and the legal entity to which the service is provided in Peru, legalized by the Peruvian diplomatic post;
  • a document issued by the foreign company appointing the worker to perform the service in Peru, duly legalized by the Peruvian diplomatic post;
  • the appropriate fee.

            This process is also complete when the foreign citizen is granted a foreigner’s ID (carné de extranjería).

               3.        Extension of a Residence Work Visa

             A residence visa based on an employment contract or on a services contract authorizes residence in Peru for one year, which may be extended for another year as many times as required. The extension application should be submitted prior to expiration. If the visa expires prior to the filing of the extension request, the individual will be subject to a fine of US $50.00 for each three months of delay.

            4.        Temporary Work Visas

            If the foreign citizen’s assignment in Peru is for a short term one (i.e., no longer than a year), a temporary work visa, based on the contracts mentioned above in Sections II.C.1 and 2., is also available through a simpler process. In these cases, for instance, no carné de extranjería will be issued.

III.     End of Employment and its Impact on Immigration Status

            Regardless of whether a foreign national employee resigns, is terminated or is transferred outside Peru, cessation of employment in Peru triggers certain obligations and affects the individual’s Peruvian immigration status. In such case, the foreign citizen must return his carné de extranjería and leave the country unless he enters into another employment contract.

IV.    Approval of an Employment Contract with Foreign Citizens

          A.     Overview

           As in most countries, the labor laws in Peru give preference to the hiring of Peruvian nationals over that of foreigners. Nevertheless, hiring foreign employees is permitted under certain formal conditions as explained in this section.

          B.     Limitations and Exceptions to Hiring Foreign Employees

            The law allows no more than 20% of an employer’s personnel to be foreign; moreover, there is a payroll cap of 30% , that is, up to a maximum of 30% of an employer’s payroll may cover foreign employees’ salaries.  In addition to certain other exceptions, these limitations do not apply if the foreign employee is any of the following:

    (1)    married to, or a son, father or brother of a Peruvian citizen;

    (2)    a citizen from a country with which Peru has a double citizenship agreement (e.g., Spain);

    (3)    an immigrant with such a visa in effect;

In addition, an employer may ask for a limitation exception if the employee is any of the following:

          (a)    a specialized or qualified employee in technical matters;

          (b)    part of the management staff of a new activity; or

          (c)    a teacher or scholar.

The contract cannot be executed for longer than a three-year term at a time. However, the term may be extended for no more three year terms as long as necessary.

          C.     Contract Requirements

          Labor contracts with foreign employees must be executed in writing and approved by the Labor Ministry. To be approved, contracts must be submitted along with diplomas or study certificates and labor experience certificates of the employee. A “Technical Trainee Certificate” or similar document and a “Labor Experience Certificate” will meet the requirement when a professional degree is not available.  All documents issued outside Peru must be legalized by a Peruvian consulate.

          The employment contract must include a commitment from the foreign employee to train Peruvian employees for the tasks the foreign employee will be performing, and a commitment from the employer to repatriate the foreign employee upon termination of the contract.

          The approval process at the Labor Ministry should take between five to ten business days.  As mentioned above, only after the employment contract is approved, the proper work visa is granted and the carné de extranjería is issued, may the foreign employee start performing his or her duties and enjoying a salary.

V.      Labor Benefits Applicable to Foreign Employees

          A.     Overview

          In general, foreign employees are subject to the same rights and benefits that a Peruvian employee enjoys. However, since foreign employees are usually appointed to management positions, they will not be subject to the maximum daily work schedule and the overtime payment rules.

          B.     Summary of Benefits

          The following is just a list of the main benefits applicable to a foreign employee.

          (1)    Vacation: The employee is entitled to thirty‑calendar days’ vacation for each complete year of services rendered to the same employer after fulfilling record-keeping requirements established by law, with payment of his full monthly salary.

          (2)    Ordinary Gratuities: Each July 15 and December 15, employees are entitled to a gratuity of one month’s salary for Independence Day and Christmas, respectively.

          (3)    Severance Payment (Compensación por Tiempo de Servicios - CTS): The employee is entitled to semiannual deposits into the employee’s special bank account in amounts equal to approximately half of his or her salary for each six months of employment; deposits can be withdrawn upon employee’s retirement with certain exceptions.

          (4)    Life insurance: Life insurance coverage is mandatory after four years of employment with the same employer. The insurance covers natural and accidental death and absolute permanent disability, with a payment equal to 16 to 32 months’ salary.

          (5)  Profit-sharing: Employees working for a company with more than 20 employees have the right to receive a share in profits, before taxes, which is payable 50% pro rata based upon days effectively worked by each employee and 50% in proportion to employees’ salaries, according to the following scale:

Activity

Sharing %
Mining

8%
Fishing

10%
Manufacturing Industries

10%
Communications

10%
Restaurants, Wholesale and Retail

8%
Other

5%

          (6)     Job Security: If terminated without a just cause provided by law before the termination of the contract term, the employee is entitled to an indemnity of 1.5 month’s salary for each month remaining until the end of the agreed contract term. The indemnity is capped at 12 months’ salary.

          C.     Annual Salaries

          It is customary to agree to the payment of annual salaries for foreign employees. In such cases, the agreement may include in such annual salaries, the benefits mentioned in Section V.B.2 and 3 above, together with some other benefits such as overtime or a family bonus (if applicable). For this agreement to be valid, the monthly salary must be not lower tax 2 tax units (i.e., approximately US $2,000).

          D.     Some Tax Implications

          It is worth mentioning that a foreign employee will be considered as a non-domiciled taxpayer during the first fiscal year working in Peru and, therefore, subject to an income tax rate of 30% on his or her gross income. Subject to certain conditions,  the foreign employee will have the right to be subject to domiciled taxpayers’  rates of 15%, 21% and 30% beginning with the second fiscal year of employment. It is critical for the parties to consider this issue when agreeing on a net salary for the employee.

VI.    Additional Information:

          Some useful information may be found on the following Web sites:

Estudio Aurelio García Sayán in Lima, Peru.