The challenge of regulating immigration


Immigration to Chile has increased fivefold over the last 35 years. Nevertheless, suitable legislation that facilitates the integration of migrant arrivals into Chilean society remains pending, especially considering the significant contribution of immigrants to the national economy, consumption and a wide range of other areas. Currently, the government is drafting a new immigration bill, while businesses are facing the challenge of incorporating appropriate standards related to the recruitment of foreign employees. 

By María Akbulyakova

It is not only European nations that are currently receiving large numbers of migrants in search of safety and a better quality of life. In recent decades, Chile, with its strong economic growth and new possibilities in the labor market, has become a highly attractive migrant destination, particularly within the Latin American region. And while authorities are devising a new immigration policy, the business sector is demanding urgent solutions in response to the employment opportunities arising as a result of this trend.

Between 1982 and 2015, the nationwide socioeconomic CASEN survey shows that the number of immigrants resident in Chile has risen fivefold, from 83,000 to 465,000. Moreover, Ricardo Sandoval, the National Head of the Department of Immigration and Migration, which falls under the remit of the Ministry of the Interior, explains that following the national census of April 2017 this figure will rise to between 600,000 and 700,000, largely because the overall number will also include non-Chileans with temporary-residence status. The results of the census will be published in 2018.

Similarly, almost half of all foreign residents in Chile arrived after 2010. To date, Legal Decree 1,094, which was passed in 1975 to regulate immigration matters, remains in force. Sandoval explains that this Decree “structures the relationship with immigration under the logic of threat and control, which ends up making the conditions for integrating non-Chileans into society highly precarious”.

Chile, just like a number of other countries, and perhaps even more so, needs immigration in order to secure its economic, demographic and cultural development. Levels of immigration in the country are far below the global average, representing just 2.7% of the general population. This compares to 5.1% in Argentina and an average of 11.3% in developed countries, according to the United Nations.

The foreign arrivals: where do they come from exactly?

Immigration to Chile is distinctly South American in composition, with Peru (30%), Colombia (13.6%), Argentina (12%) and Bolivia (10%) topping the list of countries of origin. However, in recent years the arrival of foreigners from Central America (Haiti, the Dominican Republic and Cuba) as well as Venezuela has increased significantly.

The majority of migrants are arriving in search of employment opportunities, with almost 60% aged between 20 and 50 years old. And their efforts are paying off: they enjoy a higher employment rate than Chileans (72.4% compared to 53.4%) and a higher average monthly wage (CLP$585,000 versus CLP$456,000). However, both recent migrant arrivals as well as Chilean businesses are facing distinct obstacles in terms of job recruitment, largely due to the granting of limited visas, workplace quotas and problems related to degree recognition.

Draft legislation in progress 

Accordingly, the ‘visa subject to a contract’, which was the only available work visa until recently, places additional responsibilities on the employer, including having to pay for the return ticket of the migrant and limiting the visa to the duration of the employment contract. 

In 2013, then-president Sebastián Piñera introduced a migration bill to Congress which sought to expand the variety of visas available. However, following the change of government in 2014, the progress of this bill stalled and the incumbent administration has committed to introducing its own draft legislation.

The bill currently being devised was originally planned for the beginning of 2017. However, the Ministry of Interior has disclosed that this bill remains in the “financial evaluation” stage, without having provided any further information. During her recent public address to the nation, President Bachelet postponed the date on which this bill will be submitted to Congress until the second half of the year.

To ease the labor situation, in 2015 the government introduced a new type of temporary work visa which is not subject to conditions related to an employment contract. “We have created a kind of ‘stopgap’ solution”, explains Sandoval. “While there is no (new) legislation in place, we have taken a series of administrative measures such as a temporary work visa, a civil union, modifications to access to housing, health and education, justice, and so on”.

Critical voices 

Despite such modifications, Chile is currently in noncompliance with the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, which it ratified in 2005, says Tatiana Albuja, founder of the Movimiento de Acción Migrante (Migrant Action Movement). In addition to enshrining the equality of rights and duties of national and migrant workers, the Convention also establishes eight categories of work visa, including for self-employment, seasonal labor, frontier workers and project-tied work positions, among others.

In Chile, the trade and services sector is that in which the largest number of migrant workers are employed. As Manuel Melero, President of the Chilean National Chamber of Commerce, Services and Tourism notes, stores, hotels and restaurants employ approximately 58,000 migrant workers. More generally, he adds that current legislation “is clearly not accounting for the complexities or magnitude of the migration process underway in Chile”.

This issue is also particularly significant for the agriculture sector, which is one of the most sought after in terms of migrant jobs and in which there are a large number of short-term posts. It is necessary “for temporary agricultural workers to have some kind of work visa for a specific period of time (as happens in places such as Israel and New Zealand)”, argues Ricardo Ariztía, President of the National Agriculture Society. At present, employees are provided with a short-term contract (of 20 to 30 days) or another pre-determined period, which makes it difficult for them to obtain a visa.

In the meantime, the variety of the regulations in play continues to grow. “Now, a migrant has 90 days to find a job because they are not permitted to work on a tourist visa. Nobody fully grasps the vicious circle that this creates: if a migrant wants to work they have to show their Chilean ID card, but in order to apply for an ID card, they need a contract from an employer. This creates a large vacuum”, says Víctor Hugo Lagos, who is responsible for the legal assistance program at the Servicio Jesuita a Migrantes, an organization which assists foreigners gain the required authorization to live and work in Chile. One possible solution, he adds, would be to grant more general work visas that are not tied solely to one contract or promise thereof, as is the current situation.

Quotas

Regarding the business sector, one of the major challenges of existing legislation is the quota system that stipulates that only a maximum of 15% of the workforce is allowed to be of migrant, as framed under the national Labor Code. There are a number of exceptions to this rule, including companies with less than 25 employees, migrant spouses of Chileans and technical professionals, among others, which according to Ricardo Sandoval means the legislation “does not work in reality”. The Head of the Department of Immigration and Migration explains that no change to this quota was included in the technical proposal submitted by the agency to the Ministry of Interior in order to draft the bill. However, he believes that it will form part of discussions in Congress and, therefore, could be included within the new legislation.

Nevertheless, the business sector is certain of the important role played by this quota. Although the overall total rate of migrant labor in the Chilean workforce is below 3%, certain sectors with a strong contingent of migrant labor, such as construction, agriculture and commerce, contend that the 15% quota acts as a serious obstacle to their further development.

Agriculture, for example, utilizes a system of contractors in order to meet this quota. “The contractors are individuals who accompany a group of workers and offer specific work-related services. The service is provided by the contractor and we, as employers, are not obligated to demand that the 15% is met, despite the fact that nowadays it nearly always is”, states Ariztía.

In the construction sector, which employs over 11% of all migrants resident in Chile, the overall rate of migrant labor is 3.5%, according to Javier Hurtado, Director of Research at the Chilean Chamber of Construction. However, he admits that certain businesses have reached the limit. “The migrant quota of 15% is absurd because if a person looking for work is allowed to enter the country, there is no reason to subsequently limit them in their ability to do so”, he stresses.

Moreover, this condition favors informality in the labor market. Despite being low (16%), according to the Direction of Labor, migrant reports of violations of employment regulation has gone from just over 1,000 in 2014 to more than 900 in just the first half of 2017.

A significant role in the labor market
The contribution of immigration to the Chilean labor market is likely to be crucial over the coming years. According to a study compiled by the Avanza Chile foundation, only 35% of all employment posts due to emerge over the next decade will be filled by Chilean manual labor. Therefore, the question according to Ricardo Sandoval is, “who is going to come and fill the rest of these positions to be able to finance the State’s tax revenue?”

Manuel Agosin, Dean of the Faculty of Economics and Business at the Universidad de Chile, believes “there is a shortage in the workforce in certain areas of work that Chileans no longer want to do, that are unskilled in nature. You can see it in places like shopping centers and supermarkets, where the cleaners are Haitian because Chileans are now unavailable for such work”.

Furthermore, migrants resident in Chile have, on average, a higher education level than locals: 12.6 years of study for the former compared to 11 for the latter. However, the complication in this regard relates to the process of validating their professional qualifications in Chile. Whereas this process is straightforward for Venezuelans, it is more complex for Haitians, many of whom have a college degree. This is because there is no bilateral treaty between Chile and Haiti which governs this particular aspect, explains Víctor Hugo Lagos. In addition, the sole institution with the powers to oversee this validation process is the Universidad de Chile, which has a limited ability to respond to the increasing numbers of migrants entering the country.

According to research conducted by a group of academics from the Universidad Católica, from a sample of 580 foreign migrants only 13% were able to validate their degrees, meaning that fewer than 30% work in their specialist area. “There is ample space for qualified workers, in education for example, and we need more doctors” warns Manuel Agosin. Additionally, “Chile is facing a human capital deficit of 4,000 people a year in terms of information technology and related knowledge”, adds Ricardo Sandoval. 

The demographic contribution

Foreign migrants offer Chile far more than simply employment. According to the United Nations’ Economic Commission for Latin America and the Caribbean (ECLAC), by 2050 Chile will have the highest rate of persons aged 60 or over (30.6%) in the region, second only to Cuba (38.4%), as well as the highest life expectancy, which is projected to reach 87.9 years old. These statistics will place Chile in the club of ‘aging economies’, which means that national economic resources are consumed at a greater rate by older persons than by children and younger persons.

“In addition, a high percentage of people retiring (in the country) are doing so with pensions lower than the minimum wage. This means that Chile’s dependency rate, which is the number of persons who will be dependent on the government to be able to fulfil their basic needs, will increase over time”, warns Sandoval.

Moreover, Chilean women are having increasingly fewer children: in 2014, the World Bank recorded the birth rate in Chile at 1.76 children per woman, compared to 5.1 in 1960. On the contrary, the birth rates in the neighboring countries of Peru and Bolivia are 2.5 and 2.9, respectively. Both rates exceed the figure of 2.1 which is widely accepted as necessary for successful population reproduction.

“That is the key point: Chile needs migration. It is not only about jobs but also that the economy demands consumption. If the population simply shrinks, who will do the consuming in the country?” asks Sandoval.

There is widespread consensus that Chile requires skilled and unskilled labor to fill the shortage of personnel in industries such as health, education and technology, and that there needs to be an increase in the number of young persons to counter the effects of an aging population. The challenge is to make progress towards migration legislation, according to Chile`s actual needs, and that safeguards the rights of the inmigrants in the country, witch number increases daily.

Text Box: Worker support 

Mónica Tobar, Vice President of Human Resources at Walmart Chile, explains that the company employs 1,820 workers from 38 different nationalities. Because of this international composition, the Global Mobility department was created in 2009 to provide support to migrants across numerous areas, for example, in the process of applying for residency, searching for employment and enrolling their children in local schools. “We also focus on the language barrier, such as assisting Haitians by building links with institutions that provide them with Spanish classes. We are also pushing for our contracts to be written in Spanish and French in order to facilitate clear understanding of all rights and responsibilities”, states Tobar.

She adds that one of the worldwide key pillars of Walmart, is to promote diversity and inclusion, and Chile is no exception in this regard. “Having diverse work teams and an inclusive working environment is a competitive advantage as it helps us to be far more creative”, she concludes.

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