Immigration description Article
Spain is a destination of great attraction for international foreign students, both undergraduate and postgraduate or masters. The number of non-EU students does not stop growing year after year, and this international talent enriches the Spanish labour market and enhances the internationalization of Spanish companies, but how can one attract or maintain that talent within our borders or in our companies?
First of all, we must take into account that foreigners can be in Spain in a residence or stay situation. This is stated in article 29 of the L.O. 4/2000, known as the Immigration Law.
We could define the stay as the fact of staying within the territory of the Spanish state for a period of time not exceeding 90 days in periods of 180 days for tourism or business purposes. Precisely, this general rule for all cases of stay in Spain has its exception in studies stays, Article 33 of the same Immigration Law: “the validity of the authorization will coincide with the duration of the studies for which it is enrolled […]”
So, for example, suppose a Chinese national wanting to take a marketing course during a 9-months teaching period in Spain. The student may be authorized to take the course for which he or she enrolled on a stay program, even if it is longer than 90 days. However, the truth is that the initial authorization to stay for studies, a priori, does not allow to exercise a paid work activity, – either on their own or another’s -, so that the student can be authorized to remain in Spain, he must justify that its sole and main purpose is to carry out the marketing studies and that he has sufficient financial means to stay in Spain without having to carry out a work activity.
This limitation of foreign students to carry out work activities with the study permit may be modified with the request, by the employer, for an authorization to exercise a paid activity on behalf of another, as far as this does not limit the pursuit of the studies, which will be when the work activity overlaps with the class schedule of the course for which he was initially authorized to remain in Spain. On the other hand, there is also the possibility of formalizing an agreement of practices; insofar it does not overlap with the teaching schedule. So, for example, the foreign student may be doing an internship in a company from 8 a.m. to 4 p.m. if the classes then start at 5 p.m., always linked to the university and without being a professional activity.
A fact to be taken into account is that since the approval of Royal Decree 1493/2011, of October 24, there is the obligation to register the student with Social Security when the student receives economic compensation, whatever the concept or the way in which the retribution is perceived. The fact that the law assimilates the internship student to an employed employee means that the former acquires the status of insured and beneficiary for the purposes of healthcare in Spain, pursuant to article 3 of Royal Decree 16/2012, of April 20, urgent measures to guarantee the sustainability of the National Health System and improve the quality and safety of its benefits.
There are also possibilities to change status, no longer in a study situation and having a residence and work permit without having to return to your country of origin to process a visa or take into account the existence of candidates registered as job seekers (what is known as “national employment situation”), for this an employer who wants to hire the student once he has completed his studies is required, as long as the student is offered a job and meets the law requirements. In this sense, there are two possibilities; either to request an authorization of residence and work for others, – provided that the student has stayed more than 3 years in Spain as a student -, or to request a residence authorization as a highly qualified professional without requiring a previous stay of specific period of time.
In order for the first of the authorizations to be able to be granted, the job offer must be a minimum of one year and conditioned on the foreigner having completed his studies until then, there is no need for the job to be related to the studies carried out neither a requirement of category or determined salary.
On the other hand, on support for entrepreneurs and their internationalization, Law 14/2013, of September 27 introduced a new regulation for highly qualified professionals, with the purpose of encouraging the growth and the economic reactivation of the country. The term “highly qualified” will determine, precisely, the difference between the choice of one or the other option. We will be before a highly qualified professional when one of the assumptions established in article 71 of the same law is fulfilled; when the company meets some characteristics (for example, having an average of more than 250 workers in Spain); when the professional is part of a business project of general interest; or when he / she is in possession of a degree and / or postgraduate degree from a university or business school of recognized prestige, in addition to that the job position reflects that high qualification according to the position and salary offered. One of the “pros” for the employer is that the residence and work authorization will only enable him to work in the contracting company and applicant for the permit, which facilitates the maintenance of that “talent” in the company. This means that, if he / she is dismissed or voluntarily resigns, the worker must apply again for a permit with the new contracting company.
As we can see, there are several alternatives so that the foreign students can incorporate in the Spanish business fabric, even in a gradual way, perhaps beginning with agreements of practices that evolve in work contracts that allows authorizations of work for students, and that once finalized the studies lead to authorizations of residence and work of one kind or another according to the level of qualification and responsibility of the position.
At AGM Abogados we can analyze all your possibilities and help you design the appropriate roadmap for each professional career, as well as process the necessary permits for each phase for you.