Relevant Aspects of the Law No. 21,325 on Migration and Foreigners

In a globalized world with high mobility, Chile has faced a significant wave of immigration in recent years, positioning itself as the second country in the region with the highest percentage of migrant population (according to IOM figures). This situation (among others) prompted the State to reform the Immigration Law, in force since 1975, to promote the rights, duties and obligations of foreigners who have chosen Chile as their country of residence.

Ann Bruggeman

After 47 years of existence, Decree Law 1,094 of 1975 was replaced by Law No. 21,235, New Immigration and Immigration Law, which was enacted on April 11, 2021 and entered into force on February 12, 2022 (the ” New Law”), in order to allow safe, regular and responsible migration.

Previous situation

One of the most critical aspects of migration management in our country referred to the long waiting times to obtain a temporary or permanent visa subject to a contract, which could exceed 18 months.

This implied a very precarious situation for the immigrant, given that, during this period, (i) he did not have the necessary identification to work, and (ii) he could not carry out basic administrative and life tasks (such as contracting a cell phone plan or open a bank account).

Due to the above, the New Law has sought to modify and improve this harmful aspect in terms of granting visas. Even so, the new text generates situations that are also problematic.

Current situation

The purpose of this New Law is to prevent the irregular entry of foreigners and, therefore, to promote legal, orderly and safe migration.

However, said law faces practical problems that demonstrate a difficulty in accessing regularity, such as:

• Applicability of the New Law: in general terms, notwithstanding the enactment of the New Law, for the full application of the regulations it is necessary to wait for the Government to issue the respective regulations and supreme decrees. For now, only the declarative parts and the transitory regulations of the New Law are in force, which causes a “legal vacuum” translated into practical problems in the application of the law.
• To avoid “work tourism”, as a general rule, all requests must be made from abroad, through the online platform and eventually the Chilean Consulates, receiving the authorization and the relevant documentation before entering the country. It is a radical change in the regulation, since previously residence permits could be granted after regularly entering Chile as a Tourist and finding employment. Undoubtedly, to the extent that this is applied properly, this will drastically limit access to our country for work purposes.
• Elimination of some special visas, such as the VisaTech, which was granted to professionals in the technological field (IT) and represented a “Fast Track” in obtaining said visa, which only took one month to be granted. Although the current intention would be to replace said visa with a new “Strategic Management Fast Track” that has yet to be approved by the Supreme Decree of the Immigration Subcategory. In this way and until this happens, we will find ourselves in a “limbo” for foreigners who have already qualified to enter the country under the VisaTech but who for reasons beyond their control have not been able to continue the process.

Conclusion

Undoubtedly, the legal changes will create tools to control uncontrolled migration processes and provide benefits by seeking to prevent foreigners interested in staying in the country from having to wait months in Chilean territory without documentation. That said, it is also necessary to highlight that the New Law makes it difficult for a majority of migrants to enter – mainly from Venezuela (30.7%), Peru (16.3%), Haiti (12.5%), Colombia ( 11.4%), Bolivia (8.5%) and Argentina (6.2%) -according to INE figures in 2021- that do not have a professional qualification or links that allow them to access a job offer from the Foreign.

For the purposes of managing your visa or immigration procedures, the EDN Abogados team is specialized in immigration advice and assistance for the granting of visas throughout the process. Do not hesitate to contact our labor lawyers.

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