Spain | Moving to a more flexible and streamlined immigration regime aimed at the internationalization of companies

In 2013 a new law on immigration was passed in order to create a new legal migration regime aimed at encouraging the Spanish economy by attracting investment and talent, as well as promoting entrepreneurship and the internationalization of companies. The simplification of the new procedure and requirements has greatly favoured not only investment in Spain but also the hiring and transfer of employees to Spain. It has also meant that most of the work permit applications submitted during the last three years have been processed and granted under this new regulation.

In particular, the so-called “Entrepreneurs’ Law” (Law 14/2013, of 27 September, to support entrepreneurs and their internationalization) created new types of residency and work permits, with much quicker and simplified procedures than those that were set out in the previous immigration regime[1], which shall be referred to as the “General Regime” from this point onwards, and which is still in force. The individuals to whom the Entrepreneurs’ Law is addressed are clearly identified as individuals who possess the professional potential or economic wealth to make a step forward into the future after a few years of recession. Examples of such individuals include:

• Financial investors who have invested at least €2M in Spanish public debt, or at least €1M in shares of Spanish companies or in investment funds, close-end type investment funds or venture capital funds set up in Spain, or in bank deposits in Spanish financial entities; 
• Property owners or real estate investors, who have made a real estate investment of at least €0.5M in Spain;
• Entrepreneurs who are willing to carry out an innovative business of particular economic interest in Spain;
• Highly qualified professionals who were hired by large entities or corporate groups which are based in Spain, or by companies that are in a strategic sector or are developing a project of general interest. Graduates or postgraduates from prestigious universities and business schools would also be classed in this category;
• Researchers carrying out research and development activities for private or public entities in Spain or giving university lectures;
• Employees who were posted in Spain within the framework of an employment or professional relationship, or for professional training purposes with a company or a group of companies.

All foreigners (that is, non-EU and non-EEA nationals) falling within the groups referred to above would need to process their residency and work permit before arriving in Spain. However, they could do so by taking advantage of the simplified application procedures set out under the Entrepreneurs’ Law, which offer:

1. Centralised processing of their application by a single specialised governmental unit. This centralised processing allows applications to be resolved by specialised professionals with relevant market knowledge, and also ensures uniformity in the resolutions. This contrasts with the General Regime, under which the applications are sometimes resolved by different governmental units (depending on the type of authorization requested and the territory where the application is being submitted) that do not always share unified criteria.

2. Waiver of the national employment boundary, which requires proof that the national labour market cannot provide a suitable candidate for the role or that the latter belongs to one of the groups of foreigners that have been legally exempted from complying with this requirement (for example, company managers, highly qualified professionals, employees who were transferred to another company within the group, nationals from Chile or Peru, etc). Given that the ultimate goal of the Entrepreneurs’ Law is to attract talent, this requirement (which protected the Spanish employment market and involved a great number of applications being denied in the recent years of recession) was removed. The requirement is now only applicable to applications made under the General Regime.

3. Expedited processing and ‘positive administrative silence’. The response term which applies under the General Regime (three months for most work authorizations, and 15 working days for visas) has been considerably shortened by the Entrepreneurs’ Law to adjust to business reality. The response term which applies to the work authorizations is now 20 working days, while the response term which applies to visas is now 10 working days.

To secure compliance with the expedite processing, if a resolution is not provided within a timely manner, it shall be deduced that the work authorisation or visa application has been tacitly accepted. This differs from the General Regime, under which, if a timely response is not provided, it is concluded that the application is being tacitly denied.

4. Under the General Regime, once the work authorization has been granted, the individual must personally apply for a residency visa before the Consular Office of Spain in his home country. In contrast, the Entrepreneurs’ Law has exempted the foreigners who are legally in Spain when they submit their application for the work authorization, and who have the relevant certificate of good conduct, from this obligation.

5. The work authorizations which are regulated in the Entrepreneurs’ Law allow foreigners to render services all over the Spanish territory. This contrasts with numerous authorizations of the General Regime, which limit its validity to a specific sector or activity and geographic area.

6. The initial authorizations of the Entrepreneurs’ Law are granted for two years, and can be renewed for additional periods after the first two years are over. This differs from the General Regime, that authorizes working in Spain for a maximum period of one year, and is also renewable.

7. Relatives of the applicants are also welcome to Spain. The spouse (or person with an analogous affective relationship), descendants who are under 18 years of age, financially dependent descendants and ascendants can apply for an authorization to stay in Spain together with the principal applicant, either simultaneously or successively.

The advantages of the Entrepreneurs’ Law, together with the Directive 2014/66/EU, which allows greater mobility of foreign talent within entities of the same company or group companies across the EU, generated an increase in the mobility to Spain and the number of work permit applications being processed under said Law. 

The great relevance of the Entrepreneurs’ Law which promotes the removal of administrative boundaries to welcome entrepreneurship, investment and innovation rapidly revealed. Indeed, now after three years only, almost all professional authorizations are successfully submitted (and granted) under its provisions.

[1] Organic Law 4/2000, of 11 January, on the rights and freedoms of foreigners in Spain and their social integration, and the decree that develops it, Royal Decree 557/2011, of 20 April, which approved the Regulations of the Organic Law 4/2000, on the rights and freedoms of foreigners in Spain and their social integration, after its reform by the Organic Law 2/2009.