FOREIGN-BORN WORKER IN CHILE
It is called Resident Subject to Contract the foreigner who comes to Chile to develop working activities. Also, the spouse, parent and children of both or one of them are granted with this title, provided that they are living at the expense of the visa holder and not performing any paid activity.
In order for a foreign-born worker to work in Chile, he/she must accredit previously residence or legal permanency in the country and be duly authorized to work, which is achieved by means of a signed work contract.
Also, the foreign-born worker may start its working activity, once granted the corresponding residence visa in Chile or the special work permit for foreigners with a visa being processed.
It is necessary to know that the requirements to work in Chile are the following, namely:
- That the firm, institution or employer who contracts the foreign-born worker has a legal address in Chile.
- That the work contract is signed in Chile before a Notary Public, by the employer and the worker or whoever represents this one. Concerning professionals or specialized technicians, these may accredit their respective degree duly legalized in their country of origin.
- That the activities performed by the foreign-born worker in Chile be not considered hazardous or threatening for national security. If there were any doubts concerning the latter point, a report shall be requested from the Ministry of National Defense.
- That the hiring of the worker and the work contract comply with all the relevant contingency and working rules and regulations, plus the ones requested by immigration for the obtaining of a subject to work contract visa.
On the other hand, the work contract for foreign-born workers in Chile, must comply at least with the following contents:
- Signing place and date of the contract (contract to be signed before Notary Public)
- Name, nationality and address of the employer and the worker.
- Function(s) or task(s) performed in Chile.
- Working day and place where the occupation shall be performed.
- Determination of remuneration, which cannot be inferior to the minimum salary and that could be paid in national or foreign currency.
- Duration of the contract (starting and finishing date of labor relation).
- Initial date of the activities.
- Travel clause, establishing that the employer commits itself to pay the worker and to the members of its family, until the end of contract, a return ticket to the worker to its country of origin or to the one agreed by the parties, pursuant to law. This obligation of the employer shall exist until the foreign-born worker exits the country or obtains a new visa or a definitive permanency.
- Contingency regime clause, where the employer commits itself to carry out the corresponding tax deduction and to deliver it to the institutions of social security, unless the parties have recourse to the Law Nº 18.156.
- Income tax clause, where the employer commits itself to the payment of the income tax corresponding to the foreign-born worker’s remuneration.
It is necessary to consider, that the duration of the work contract for the foreign-born worker, may be:
- The granting of visa to the resident subject to contract, as a requirement of the foreign legalization service, may be valid up to two years, which may be extended for equal periods.
- In case the worker has a subject to work contract visa, and the labor relation ends for any reason, its residence visa expires. To regularize this situation, it is necessary to have a new employer, and request in the Foreign Legalization Service the change of employer in the subject to work contract visa.
With respect to the above mentioned, the foreign-born worker must have a series of necessary and relevant documents. On the one hand, the former contract settlement, or appearance document, or evidence in writing made by the national Work Inspection Department, which consists in a drawn up and written letter where the worker gives evidence, with a copy, that its former employer ended the labor relation. It also requires a new work contract, that must meet the requirements already described.
On the other hand, it is important to consider that the contingency situation of the foreign-born worker in Chile is regulated by the common and general rules on the subject, that is to say, by the Decree Law Nº 3.500. However, the Law Nº 18.156, grants the possibility of not to pay completely the deduction payments to the foreign-born worker who meets some requirements, it is to say:
- That companies sign contracts with foreign technical or professional personnel.
- That the foreign-born worker is affiliated to a contingency regime abroad.
- That the work contract contains a clause relative to the contingency affiliation abroad.
It is necessary to make clear that, in case the foreign-born worker does not pay deduction in Chile, he will be deprived of the benefits of the Chilean contingency system, except for those derived from the coverage of industrial accidents and occupational diseases, which deduction payment are mandatory for the employer.
Similarly, the hiring of foreign-born-workers is subject to inspection, according to what stated in the regulations of the Foreign Legalization Service, dependent on the Ministry of Interior, through the Department of Foreign Legalization and Migration.
The inspection of the work, contingency, hygiene and security according to the Work Code, are of exclusive competence of the Work Directorate, bound to protect all workers, without exception, whether Chilean or foreign-born citizens.
At last, it is necessary to stress that there are certain special situations of the foreign-born worker in Chile, that is to say, a subject to work contract residence visa may be granted for free and without a written contract, when it comes to artists, scientists, teachers, writers, and in general, people of special relevance in the cultural field or highly prestigious figures. Besides, when they are sponsored by public or private institutions of a recognized solvency. And, when their activities are performed with charitable, teaching or diffusion purposes.