December 12, 2012

On November 9, 2012, Mexico’s Instituto Nacional de Migración (INM) in Mexico City (the Federal INM) issued the final version of Mexico’s new national immigration law.

Since November 9th, the Federal INM is in the process of working with the INM Sub-Delegation offices (i.e., the State INM’s) to prepare final guidelines, protocols and requirements for the many changes.

In addition, Mexico’s new President, Enrique Peña Nieto, assumed office on December 1st and will be reviewing a full agenda of administrative changes in the Mexican Government. Officials at both the Federal and State INM’s will be mindful of possible new political appointments which may further change or possibly delay implementation of the new law.

Given the level of changes since November, companies considering new assignments to Mexico during the first quarter of 2013 should exercise flexibility while these comprehensive immigration reforms undergo formal policy-making measures. In addition, all foreign nationals requesting any Mexican immigration benefit will be adjudicated on a case-by-case basis until final guidelines are in place.

What’s Changed?

On May 25, 2011, the Federal INM introduced a new immigration law (Ley de Migración) to: replace visa booklets with biometric identity cards; replace the FM-3/FM-2 visa designations with new business visitor, Temporary Residence and Permanent Residence categories; require Mexican companies to register as qualified sponsors and eliminate the ability for business visitors and tourists to regularize their status to long-term work and residence authorization.

General Guidelines

Mexican Companies Must Register As Qualified Sponsors

Unless a Mexican company does not already have a “Basic Immigration File” (“Expediente Basico”) with the INM (http://www.inm.gob.mx/index.php/page/Solicitud_de_Empleadores), Article 166 of the new law requires that all Mexican companies wishing to sponsor foreign nationals for a Temporary Residence Visa, Permanent Residence Visa or Visitor Visa for Lucrative Activity, or to file any work permit renewal application, must first be registered with theFederal INM’s Employer Record of Inscription (Constancia de Inscripción del Empleador):

http://www.inm.gob.mx/index.php/page/pagina_principal/en.html

  • For new company registrants, Mexican companies should expect the INM to take at least four to six weeks to register using the Constancia de Inscripciónwith theFederal INM.
  • Validity of a Mexican company’s registration will depend on the type of industry and certain other qualifications connected with the company. It is expected that company registrations will be valid between one to four years. (At present, registrations are valid for only one year.)
  • In instances where a company has only a one-year registration, the company must file an annual renewal with the INM.
  • All companies must notify the INM of when there are substantive changes concerning the company’s status (e.g., change of address, changes to persons granted corporate Power of Attorney to sign all work permit filings, change of company name, etc.).?

New Categories of Work & Residence Authorization

The long-recognized FM-3 and FM-2 visa designations are now officially replaced with new work and residence categories as follows:

Residente Temporal: “Lucrativo” or “No-Lucrativo”

Temporary Resident Visa: Lucrative Activity (Paid from Mexican company payroll)

Temporary Resident Visa: Non-Lucrative (Paid from home company payroll)

  • Valid up to four years.
  • Tied to the sponsoring Mexican company.
  • In general, after four years of Temporary Residence status, if an employee is willing to be paid from Mexican payroll, he or she is eligible to convert status to a Permanent Residence status.
  • Any foreign national receiving direct payment of professional fees or salary from a Mexican host company to perform any activity for any period of time must apply and receive a pre-approved “Lucrativo” visa. The Mexican host company must apply for the pre-approval with the appropriate INM office.

Residente Permanente

Articles 124 and 125 of the new law are to institute a new points-based system for conferring Permanent Residence status for holders of FM-2 status and for new applications. The general concepts are understood to be as follows:

  • Status will be valid indefinitely.
  • Can apply based on family-based status (e.g., marriage to a Mexican national) or, after four consecutive years of maintaining valid Temporary Residence status, a foreign national may apply on a points-based system for unrestricted work authorization. (Please note that any changes to a Permanent Residence holder’s place of employment in Mexico must be reported by the residence holder to the INM.)
  • For employment-based applicants, example criteria for assessing points are as follows: the applicant’s education level, the applicant’s prior professional experience in specialized occupation or high-demand skills (e.g., science and technology), persons coming as Investors or individuals with international recognition in their field or industry.

At this time, the INM has yet to finalize definitive guidance on how the new points-based system will be implemented in addition to assigning point values to the above-referenced criteria.

New Visitor Statuses 

The old FM-3 Business/Technical Visitor Visa (Negocios or Tecnico) are abolished and now divided by type of Visitante visitor activity:

  1. Visitante sin permiso para realizar actividades remuneradas (Visitor Not Authorized to Conduct Lucrative Activities)

    • Foreign national remains on home company payroll for duration of visit.
    • For stays of up to 180 days. It is not yet determined if the INM will grant extensionsto the visitor status.
    • Covers primarily short-term, “one-off” duties.
  2. Visitante con permiso para realizar actividades remuneradas (Visitor Authorized to Conduct Lucrative Activities)

    • For any period of stay (from 1-180 day stay) if paid from Mexican company payroll.
    • For any activity if paid from Mexican company payroll.
    • Requires prior work permit approval from the INM.
    • For all nationals, a Lucrative Visitor Visa must be issued by a Mexican consular post prior to entry to Mexico.
  3. Visitante Trabajador Fronterizo (Border Worker Visitor)
    • Daily, cross-border commuters from the United States working in Mexico’s “maquiladora” factory zone (a zone running approximately 25 miles into Mexican territory from the U.S. border).
    • This status is also for seasonal agricultural workers from Belize and Guatemala.
    • Valid for up to 12 months, multiple-entry. Duration of stay and multi-entry facility will be determined by the border control officer when requesting this status at time of initial entry into Mexico.
    • Must remain paid on home company payroll.
  4. Visitante Regional- (Regional Visitors for citizens of Belize, Guatemala and U.S.)

    • Permit a stay of up to three consecutive days, per entry.
    • Visitor card valid for up to 12 months. Biometric ID card must be obtained.
    • No restriction on activity, provided stay does not exceed three consecutive days.
    • Must remain on home company payroll.

Visitors not requiring a visa to enter Mexico can complete an FMM Entry Card (Forma Migratorio Multiple) by ticking the appropriate status. FMM holders will be granted a stay of 180 days. Foreign nationals requiring an entry visa must obtain an entry visa (“Visa Consular”) from their nearest Mexican consular post, with duration of stay denoted on the visa.

Quotas on Localized Assignees

Article 119 of the new law will permit the INM to impose an annual quota on Residente Temporal Lucrativo work permits. These quotas are still being decided and final number of available permits will be published at later date in the official gazette.

Inability to Regularize from Visitor to Work/Residence Status

After November 9th, except for truly humanitarian reasons or joining a Mexican citizen or legal resident in Mexico, all foreign nationals wishing to obtain long-term work/residence authorization (i.e.,stays exceeding 180 days) are to no longer file applications with their local INM’s to regularize their visitor status.

(Note: Certain INM’s may permit qualified family dependents of Temporary Residence Permit holders to regularize status once the assignee has registered his or her residence with the local INM. However, regularization of family dependents will be decided on a highly discretionary basis.)

New Work Permit/Consular Application Protocol

Mexican companies registered with the INM must first file the appropriate work permit category. Once approved by the INM, the INM will issue an electronic visa authorization (Permiso de Internacion) in its system permitting application for the visa at any Mexican consular post in the world.

Please note that Mexican consular posts will not issue a residence visa, but an entry visa (Visa Consular)to the employee and family members. The visa will permit the assignee and family to enter Mexico within 180 days from date of issuance.

Mandatory Residence Registration/Travel Restriction

Within 30 days of entering Mexico, the employee and all family members must register with the INM in their host state of residence for their residence permit cards (Tarjeta de Residente Temporal-Temporary Residence Card or Tarjeta de Residente Permanente-Permanent Residence Card).

IMPORTANT NOTE: This 30-day registration period cannot be extended and will not permit entry visas holders to depart and re-enter Mexico. Departure without proof of registration will result in cancellation of the entry visa and the entire process must be initiated as a new application.

Please note that for the immediate, foreseeable future, the ability for local INM’s to issue the permit cards will vary according to the availability of biometric equipment and supplies.

As travel outside of Mexico will not be permitted until registration is completed, employees and family members should exercise great flexibility with business and personal travel needs during the registration period.

New Application Forms/New FMM Form and Residence Cards

There are several new application forms and documents that will be in use.

According to Article 152 of the new law, new Resident Cards will be announced via the official gazette outlining the new card formats. Upon expiration of current FM-3/FM-2 status, the local INM’s will issue the new cards.

The INM has provided an overview of the new forms and residence cards at the following website:

http://dof.gob.mx/nota_detalle.php?codigo=5276971&fecha=08/11/2012

Assignees and Family Members With Existing Status in Mexico

For foreign nationals with existing FM-3 and FM-2 status, the INM is not requiring immediate action for those with valid status and presenting valid immigration documents when departing and re-entering Mexico.

At the time of formal renewal of status, the old FM-3/FM-2 documents will be exchanged for new residence cards.

Caveat Lector | Warning to Reader

This is provided as informational only and does not substitute for actual legal advice based on the specific circumstances of a matter. Readers are reminded that Immigration laws are fluid and can change a moment’s notice without any warning. Please reach out to your local Pro-Link GLOBAL specialist should you require any additional clarification. This alert was prepared by Glenn Faulk, Senior Manager, Knowledge Management.