Immigration LawForeign Workers and Covid-19

The Covid-19 has brought great challenges with it. Finding a balance between the challenges of public health, individual freedoms, maintaining employment, and income generation is not and will not be easy. From the labor field and already more than 8 weeks after the National Government decreed the Health Emergency and with it hundreds of decrees, resolutions and circulars in different matters; we have seen the different paths that employers have taken with a view to making the dismissal of their workers the last option. Alternatives such as: working from home, teleworking, variations in working hours, cuts in extra-legal benefits and wages, paid leave and suspension of contracts; have been the order of the day, being applicable to workers, including foreigners. So, what will be applicable to them and what effects will this type of measure have on these foreigners?

It should be recalled that the territorial principle is enshrined in the Substantive Labor Code, which states that the labor laws applicable to a foreign worker are the same as those applicable to a Colombian national.

Accordingly, flexible working hours, vacation schedules, withdrawal of layoffs due to reduced income, protection mechanisms for the unemployed, benefits in terms of the percentage of pension contributions, etc., will be fully applicable to foreigners.

All these measures can be adopted depending on the degree to which businesses are affected by the effects of the pandemic. However, there are many companies that, despite having taken measures to alleviate the situation in the future, have had to suspend their contracts, in which case immigration regulations do not contemplate whether the work visa would remain in force despite the suspension or whether, on the contrary, it would lose its validity. In my opinion, and in spite of the fact that there is a modification of the conditions by which the foreigner obtained the visa, a situation that could be interpreted by some as a cause for early termination; such result would not be generated since the contract is the fundamental element that grants legal life to the work visa, whether it is a visitor or a migrant visa, which will continue in force and therefore the visa too.

However, if the employment contract, regardless of its form, is terminated, the termination must be notified through the Information System for the Report of Foreigners (SIRE), and the Single Registry of Foreign Workers (RUTEC) within the terms of the law. Additionally, paragraph 8 of Article 57 of the Substantive Labor Code, as well as Article 2.2.1.11.5.7 of Decree 1067 of 2015, must be reviewed to determine whether the reasonable costs of the return of the foreigner and their family to their place of origin must be covered, since this obligation will cease if the termination of the contract, in labor matters, is caused by the fault or will of the worker. In the first instance, in migration matters, it will be impossible to avoid this obligation, unless there is a mutual agreement between the parties, or if the foreigner, by their own will, does not use this benefit.

Finally, those foreign workers who are in Colombia and need to make a change of visa on the occasion of the termination of their contract, may do so before the office of the Ministry of Foreign Affairs despite the circumstances.