201705.06
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Foreign Nationals’ Obligations To Hold Their Migratory Condition After Receiving Their Temporary Or Permanent Residency Cards In Mexico

Just this past week I learned about three cases of foreign nationals who had the migratory condition as Permanent Residents in Mexico and lost this condition because they were unable to prove their regular migratory situation in the Country, as they did not physically have the Resident Card or an Entry and Departure Permit, when required by the Migratory Authority. After hearing their stories I decided to write this piece in order to guide foreign nationals residing in Mexico about what they should know in order to keep their migratory condition.

This time I do not intend to address the entry requirements nor the different types of visas. I mainly wish to focus on foreign nationals who already hold or have a residency condition in process.

As overview, it should be noted that foreign nationals that enter and depart as tourists to and from Mexico must return to their country within the term authorized in their multiple migratory form (FMM), which usually is 180 days. The FMM must be returned at the moment of your flight check-in. If you do not have an FMM or if it has expired, you must request another one at the airport Immigration Office; a penalty will apply.

In accordance with Article 47 of the Immigration Law, foreign nationals living as residents in Mexico must notify their departure at the airport Immigration Office, show their current passports as well as the Resident Card or Entry and Departure Permit, as applicable.

Now, addressing the issue: how was the migratory condition of those foreign nationals as Permanent Residents cancelled? Did they leave or enter Mexico with their Resident Cards or Entry and Departure Permits? The Immigration Authority required them to show their migratory document and they could not prove their regular migratory situation; then again, without each foreign national elaborating on the matter, they came in as tourists and consequently canceled their former migratory condition. In another case, the person left the country hence giving-up the migratory condition without knowing it. Does the replacement of migratory document apply in these cases? No, the replacement does not apply.

What was the consequence of an irregular situation and not knowing what to do? They accepted to enter the country as tourists, and foreign nationals cannot hold two different migratory conditions at the same time, hence the latter voided the former. (Immigration Law Articles 61 and 64)

What must these foreigners do to obtain their former migratory condition? Start from scratch; in other words, start the process before any of the Mexican Consulates aboard, apply for a resident visa and meet the requirements. If the application is approved, return to Mexico to exchange the visa for the resident card.

Foreign nationals’ obligations to remain in the country and validate their regular migratory situation:

First rule: In order for a foreign national to be able to stay in the country, he/she must have a regular migratory situation. Foreign nationals may stay in the National Territory holding the migratory conditions of visitor, temporary resident or permanent resident (Immigration Law Article 52).

Only Immigration Authorities can require and withhold foreign nationals’ migratory documents.

Second rule: Resident foreign nationals must notify the airport Immigration Authorities of their departure showing their current passport and their Permanent Resident Card or, as applicable, the Entry and Departure permit. It should be emphasized that Mexico currently has a system of migratory flow that when the foreign national’s passport is scanned, his/her entries and departures are recorded. The passport’s data is linked to the temporary or permanent resident card information that, in turn, stores the information on entries and departures. This information is also used for statistical purposes. (Immigration Law Article 47)

Entry to the country
The foreign national must show the current passport and the Permanent Resident Card or, as the case may be, Entry and Departure Permit.

Third rule: No foreign national is lowed to hold two migratory conditions simultaneously (Immigration law Article 61).
Are the migratory condition, the migratory situation and the Temporary or Permanent Resident Card the same thing? The answer is no; they are not the same.

The migratory condition is the regular migratory situation of a foreign national given his/her residency (Immigration Law Article3, Section VI).

The migratory situation refers to the assumption is which a foreign national is depending on whether he/she has complied or failed to comply the migratory conditions for his/her entry and stay in the country. A foreign national has a regular migratory situation when he/she has met said provisions; and will have an irregular migratory situation when he/she has failed to fulfill them (Article3, Section XXVIII).

The resident card is the document issued by the National Migration Institute (INM) with which the foreign nationals validate their regular migratory situation (Article 3, Section XXIX).

What to do if you find yourself in a similar situation as the above foreign nationals? First: if you are in Mexico and wish to leave the country but forgot your card, the best thing to do is return cancel the flight and return home for the resident card or departure permit.

Note: In case of an emergency, you must be aware that not having the card or departure permit will result in losing your status or the one pending resolution.

If you left Mexico with your resident card or your departure permit but forgot it abroad, I suggest that when entering Mexico mention the airport Immigration Officer that you currently are in an irregular migratory situation in the country but wish to normalize your situation and do not wish to enter as a tourist (Immigration Law Article 69, Section V associated with Articles 69, 89, 132 and 133 of the Law). Your administrative process will begin by which, through your passport, the system verifies that you actually have a resident card and you will be presented before the Migratory Authority. You might be taken to a migratory station. This could get you flustered, but all your rights are protected and you are entitled to have legal counsel with you (Immigration Law Article 70). Probably after a couple of hours, the Migratory Authority could give you an official document so that you can appear at the National Migration Institute to apply for a normalization process. In case of a favorable normalization process, the National Migration Institute will issue a new Resident card with the migratory condition you held.

Review the Immigration Law at: https//www.juridicas.unam.mx/legislacion/ordenamiento-ley-de-migracion
Review migratory procedures at: http://www.gob.mx/tramites
To check the way you can obtain a Temporary or Permanent Resident condition in Mexico, work permits or migratory procedures, contact us at: www.cozumellawyer.com

Atty. Gisela Rodriguez

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