The Implementing Regulation of the Organic Law 7/1985, of July 1, approved by Royal Decree 155/1996, of February 2, dedicates its chapter IV to the Work and Establishment of the Foreigners in Spain.

This chapter covers all the issues related to the different kinds of authorizations that enable the self-employment and foreign account of foreigners in Spain. as the requirements and the procedure to be followed for obtaining them.

Within this general scheme, it is necessary to regulate those aspects which may pose greater interpretative difficulties in the implementation of this scheme, given the novelty of its content with respect to the repealed Regulation. 1986.

Such is the case for authorizations that enable certain groups of foreigners to work in our country. Thus, Article 73.3 of the new Regulation refers to the authorisation to work which can be obtained by documented persons with a student card.

For its part, Article 74.2, in conjunction with 77.1 k), is in line with the provisions of Law 5/1984 of 26 March on the right of asylum and refugee status, as amended by Law 9/1994 of 19 May, the Regulation of which is amended by Regulation (EEC) No 737/87. The Commission has already provided for the possibility of granting authorisation to work for the displaced.

Likewise, it is necessary to regulate the possibility of authorizing the development of gainful activities to other persons who have been authorized to reside by a residence permit due to exceptional circumstances, but not have the consideration of displaced persons.

In all of these cases, it is therefore necessary to define the characteristics of the authorisations identified, the requirements to be met by the parties concerned, and the procedure to be followed for obtaining the same, on the basis of The provisions of the Implementing Regulation of the Organic Law 7/1985.

Also, this Order develops, within the preferences for the initial grant of work permits, the assumptions of the key personnel and trust in the service of companies installed in Spain.

The purpose of this regulation is the need to clearly define these categories of personnel, adapting the domestic law to the international commitments entered into by our country, especially as regards the key personnel of foreign companies making investments in Spain.

The procedure to be followed to modify the scope of the work permits is also developed, since Article 81 of the new Regulation provides for this possibility, provided that the interested party makes a request in such a way. sense.

Finally, this Order regulates the compatibility of work permits of different types and nature when the foreign worker wants to simultaneously carry out self-employed and other activities, under the conditions of the and the procedure provided for in the new implementing regulation of the Organic Law 7/1985.

In its virtue, making use of the power conferred on the final provision of Royal Decree to 155/1996 of 2 February 1996, for which the implementing regulation of the Organic Law 7/1985, of July 1, was adopted, of the Interministerial Committee of Foreign Affairs and after the approval of the Minister of Public Administrations, I have:

I. General rules

First. Field of application. -The rules contained in this Order shall apply to the persons covered by Article 68 of the Implementing Regulation of the Organic Law 7/1985 of 1 July 1985, approved by Royal Decree 155/1996, of 2 February.

Second. Criteria for implementation. -Any doubt about the criterion to be followed for the application of the rules contained in this Order will be resolved by the Directorate General for the Management of Migration.

II. Authorities for work

1. Documented foreigners with student card

Third. Scope and characteristics of the authorization to work.

1. Foreigners documented with a student card may be exceptionally authorized to carry out gainful activities on behalf of others, provided that such activities are compatible with the conduct of the studies, according to the requirements and procedures set out in this Order.

2. The authorisation to be granted will allow for work on a particular company and geographical area. The duration will match that of the contract that supports it, with the limit of one year.

3. The validity of the authorization granted may not exceed the duration of the student card, the loss of validity of the card being the cause of extinction of the student card, without prejudice to the provisions of paragraph 4 of the Order.

4. When the activity to be developed matches reading periods, the authorization will enable to work part time.

5. If the activity does not coincide with periods of time, the authorisation shall be made available for full working time, and its duration shall not exceed three months.

6. In the event that the student is authorised to work, the income obtained will not have the character of the resource necessary for his or her livelihood.

Fourth. Granting and renewal of the authorization.

1. In the granting of authorizations to work in favour of students, account shall be taken of the elements provided for in Article 76.1 of the Implementing Regulation of Organic Law 7/1985, approved by Royal Decree 155/1996 of 2 February.

2. The authorisations to work shall be renewed if the circumstances which led to the granting of the work remain, subject to accreditation, if appropriate, of the renewal of the student card. The requirements laid down in Article 78 of that Regulation shall also be considered.

3. For the granting and renewal of these authorisations, the preferences provided for in Articles 77 and 79 of the Implementing Regulation of Organic Law 7/1985 will be assessed.

4. The protection of the application for renewal of the authorisation shall have the effect provided for in Article 90 of the said Regulation, unless the refusal to renew the student card is notified.

Fifth. Documentation for the application of the authorization to work. -For the granting of the authorization to work, together with the official model of application, the following documents shall be presented:

1. Referring to the foreign student:

a) Copy of your passport, travel document or registration card in force. In the event that they are expired, a copy of the same and the renewal application must be provided.

b) A student card in effect or request to renew it.

c) Certification issued by the center where the studies are carried out, related to the period and time of the studies and the practices that, if any, are carried out.

(d) Those documents which justify that, if they are alleged by the person concerned, any of the preferences referred to in Article 77 of the Implementing Regulation of Organic Law 7/1985, or which holds the title or training required for the exercise of their profession.

2. Referring to the company:

(a) The national identity card or tax identification code and registration number in the Social Security, or an accreditable document to be exempt.

(b) A contract of employment in which the essential elements and the basic conditions of the labour supply are included. Where the contract is part-time, it shall express the number and distribution of hours per day, week, month or year, during which the worker is to provide his services.

(c) The supporting evidence of the activities of the undertaking and the job in question.

(d) Similarly, documents deemed necessary to accredit the employer's ability or solvency to meet the obligations of the contract may be requested.

Sixth. Competence and procedure for the granting of authorisations.

1. Applications must be sent to the Provincial Directorates for Labour, Social Security and Social Affairs or to the Foreign Offices, where they are constituted.

2. Applications shall be submitted, in any event, before the beginning of the activity concerned, without the exercise of that activity being initiated until the authorization to work has been obtained. The application for renewal of the authorisation shall be submitted at the latest one month before the date of its expiry.

3. The competence to resolve the application for authorization to work, in favor of foreign students, will correspond to the Provincial Directorates of Labor, Social Security and Social Affairs.

4. The decisions, which shall be reasoned, shall be notified to the applicant. In the event of favourable conditions, the foreign student shall be given the appropriate authorization to work, on the grounds that the fees and duties for his/her expedition have been entered.

5. The employment authority will transfer, from the authorizations granted to work to students, to the Directorate General of the Police (General Commissioner for Foreign Affairs and Documentation), through the Provincial Police Commissioner, or, if operation, of the police services of the Office of Foreigners in the province for its annotation in the Central Register of Foreigners.

6. The transfer to the foreign student of the new card, with the authorization to work, will be carried out by the Provincial Police Commissioner or, where appropriate, by the police services of the Office of Foreigners, who will have to transfer the Delegate of the Government or, where appropriate, to the Deputy Government Delegate in the Province.

7. Where the application for authorisation to work has been submitted within the last three months of the student card, or the duration of the authorisation does not exceed three months, the accreditation of the authorisation granted shall be shall carry out the relevant administrative decision.

2. Foreigners documented with residence permits due to exceptional circumstances, in the cases provided for in the first provision of the Regulation implementing the Law on Asylum Law and the Status of Refugees, approved by Royal Decree 203/1995, of 10 February

Seventh. Scope and characteristics of the authorization to work.

1. Foreigners documented with a residence permit due to exceptional circumstances, in the cases provided for in the first provision of the Regulation implementing the Law on Asylum Law and the Conditions of Refugee, approved by Royal Decree 203/1995, of February 10, will be entitled to the exercise of gainful activities, self-employed or foreign, according to the requirements and procedure laid down in this Order.

2. The authorisation granted to foreigners documented with residence permits in exceptional circumstances referred to in the previous point shall permit the development of any activity as an employed or self-employed person throughout the national territory.

3. The duration of the authorization shall coincide with the validity of the residence permit due to exceptional circumstances, the loss of validity of the permit being the cause of extinction, without prejudice to the provisions of paragraph octavo.3 of the Order.

Eighth. Granting and renewal of the authorization.

1. For the granting of authorizations to work for foreign documented persons with residence permits due to exceptional circumstances, in the cases referred to in the previous paragraph, no consideration shall be given to the Article 76,1 and II of the Implementing Regulation of the Organic Law 7/1985, approved by Royal Decree 155/1996 of 2 February 1996, applying the preference laid down in Article 77.1 k).

2. The authorisations to work shall be renewed if the circumstances which led to the granting of the permit are subsist, subject to the accreditation of the renewal of the residence permit due to exceptional circumstances.

3. The renewal of the renewal of the authorisation shall take the effects provided for in Article 90 of that Regulation, unless the refusal to renew the residence permit is notified in exceptional circumstances.

Ninth. Documentation for the application of the authorization to work. -For the granting of the authorization to work, together with the official model of application, the following documents shall be presented:

1. Referred to abroad documented with residence permit due to exceptional circumstances:

a) Copy of the passport, travel document or registration card in force. In the event that they are expired, a copy of the same and the renewal application must be provided.

b) Residence permit due to exceptional circumstances in force or request for extension of the residence permit.

(c) Those documents which justify, where appropriate, that the person concerned has the required qualification or training for the exercise of his profession.

2. Referring to the contracting undertaking:

(a) The national identity card or tax identification code and registration number in the Social Security, or an accreditable document to be exempt.

(b) A contract of employment in which the essential elements and the basic conditions of the labour supply are included.

(c) The supporting evidence of the activities of the undertaking and the job in question.

(d) Similarly, documents deemed necessary to accredit the employer's ability or solvency to meet the obligations of the contract may be requested.

3. Holders of a residence permit for exceptional circumstances applying for an authorisation to work on their own account, in addition to the requirements of the first subparagraph of this point, shall provide the following documents:

a) Project of the establishment or activity to be carried out, with indication of the expected investment and its profitability.

(b) Accreditation that the authorisations or licences required for the installation, opening or operation of the intended activity or for the professional exercise have been requested. Prior to the delivery of the authorisation, it must be established that the required authorisations or licences are available.

4. The authorization shall be renewed, as long as the foreigner continues to be active, either as a worker or as a job seeker, and must prove this circumstance and provide the documentation provided for in the number 1.

10th. Competence and procedure for the granting of authorisations.

1. Applications must be sent to the Provincial Directorates for Labour, Social Security and Social Affairs or to the Foreign Offices, where they are constituted.

2. Applications shall in any event be submitted before the beginning of the activity concerned. The application for renewal of the authorisation shall be submitted at the latest one month before the date of its expiry.

3. The competence to resolve the application for authorization to work in favour of foreigners, referred to in the seventh paragraph of this Order, shall be the responsibility of the Provincial Directorates for Labour, Social Security and Social.

4. The decisions, which shall be reasoned, shall be notified to the applicant. In the case of favourable conditions, the person concerned shall be authorised to work.

5. The employment authority shall transfer the authorisations granted to the Directorate-General of the Police (General Commissioner for Foreign Affairs and Documentation), through the Provincial Police Commissioner or, if it is in operation, of the police services of the Office of Foreigners in the province for its entry in the Central Register of Foreigners.

6. The delivery abroad of the new card, with the authorization to work, will be carried out by the Provincial Police Commissioner or, where appropriate, by the police services of the Office of Foreigners, which will have to transfer the of the Government or, where appropriate, the Subdelegation of the Government in the Province.

3. Other foreigners documented with residence permit due to exceptional circumstances

11th. Scope and characteristics of the authorization to work.

1. Foreigners documented with a residence permit for exceptional circumstances that do not have the consideration of displaced persons, under the additional provision of the Regulation implementing the Law Regulatory Law Asylum and refugee status may be authorised to work in accordance with the requirements and procedures laid down in this Order.

2. The authorization to work shall be carried out in accordance with the provisions of Article 74.3 of the Implementing Regulation of the Organic Law 7/1985, with a ruling on the granting of the validity of a work permit to the residence permits. exceptional circumstances.

3. The authorization granted shall permit the development of self-employed or self-employed activities throughout the national territory.

4. The duration of the authorization shall coincide with the validity of the residence permit due to exceptional circumstances, causing the loss of the validity of the permit to be extinguished, without prejudice to the effects of the renewal of the authorization.

12th. Processing of the authorizations

1. Applications, in addition to the places provided for in Article 38.4 of Law 30/1992 of 26 November 1992, of the Legal System of Public Administrations and the Common Administrative Procedure, may be submitted in the Directorates Provincial of Labour, Social Security and Social Affairs, in the offices of foreigners where they are constituted, or in the Directorate-General for the Management of Migration.

2. The initial processing of the authorisations shall be carried out in accordance with the requirements and documentation provided for in paragraphs 1 and 9 of this Order.

3. For the renewal of the authorisations, account shall be taken of the requirements and documentation provided for in Articles 78 and 86 of the Implementing Regulation of Organic Law 7/1985. The renewal safeguard shall take the effects provided for in Article 90 of that Regulation, unless the refusal to renew the residence permit is notified in exceptional circumstances.

4. The Directorate-General for Migration Management may waive any of the requirements and documents referred to in this paragraph.

13th. Competition.

1. The granting of these authorizations corresponds to the Directorate General for the Management of Migration, as provided for in Article 74.3 of the Implementing Regulation of Organic Law 7/1985.

2. For these purposes, if the application had been submitted to the Provincial Directorate for Labour, Social Security and Social Affairs or an office of foreign nationals, the file, duly informed for its decision, must be sent to the Directorate-General.

3. However, the resolution of the dossiers may be carried out, after delegation, by the Provincial Directorates for Labour, Social Security and Social Affairs.

4. The decisions, which shall be reasoned, shall be notified to the applicant. If favourable, the person concerned shall be given the appropriate authorisation to work.

5. The employment authority shall transfer the authorisations granted to the Directorate-General of the Police (General Commissioner for Foreign Affairs and Documentation), through the Provincial Police Commissioner or, if it is in operation, of the police services of the foreign office in the province for its entry in the Central Register of Foreigners.

III. Application of certain assumptions

preferences

14th. Displaced persons holding a residence permit due to exceptional circumstances.

The preference provided for in Article 77.1 (k) of the Implementing Regulation of Organic Law 7/1985 shall be deemed to be applied for the persons in whom it concurs, in accordance with the terms set out in paragraphs 12, 2 and 8. respectively, of this Order.

15th. Key and trusted personnel.

1. Those workers who carry out only senior management activities on behalf of the European Community are considered to be in the position of trust, within the meaning of Article 77.2 (e) of the implementing regulation of the Organic Law 7/1985. a company that contracts them, based on mutual trust and that they legally exercise the representation of the company or have extended to their favor a general power.

2. The Directorate-General for the Management of Migration, in the light of the situation on the national labour market, or in a particular geographical area, may, by means of a reasoned decision, authorise the national employment situation to be taken into account. in the processing of work permit applications, when the preference indicated in the previous number is present.

3. It is understood by key personnel, within the meaning of Article 77.2 (f) of the Implementing Regulation of the Organic Law 7/1985, those highly qualified subjects who, having an essential knowledge for the realization of the investment, are specialists or perform functions related to the management, management and administration necessary for the establishment, development or liquidation of the said investment. These persons must have proven experience in carrying out these duties or have carried out similar jobs in the investment firm or in the group of undertakings in which the latter may be integrated.

IV. Modifying the work permissions

sixteenth. General rules.

1. The modification of the scope of the work permits on the basis of one of the cases referred to in Article 81 of the Implementing Regulation of the Organic Law 7/1985 of 1 July 1985 will be dealt with and will be resolved in accordance with the provisions of the in this Order.

2. The authorisations to work referred to in Articles 73 and 74 of that Regulation are excluded from this Regulation.

seventeenth. Arrangements for the modification of work permits.

1. The holders of a work permit may request the modification of their scope. Such a request may refer to the employer, profession, activity sector, geographical area or personal or professional circumstances of the holder. The period of validity of a work permit may not be changed.

2. In cases where the application for amendment affects the profession, sector of activity or geographical area, of an initial work permit, the circumstances laid down in Article 76 of the Regulation shall be taken into account. implementation of the Organic Law 7/1985. Where the amendment of these aspects concerns a renewed permit, the circumstances provided for in Article 78 of that Regulation shall not be taken into consideration, without prejudice to the provisions of this Order.

3. In any event, the applicant shall justify the reasons for the modification of the scope of the work permits.

4. The granting of the modification does not entail the renewal of the permit in force and will produce effects during the period of validity of the permit that it replaces, according to the type of work permit of the applicant.

Eighteenth. Documentation for the work permit modification request.

For the modification of the permit to work, together with the official model of application, the following documents shall be submitted:

1. Referring to the foreign worker:

a) Copy of the passport or travel document in force. In the event that they are expired, a copy of the same and the replacement of the renewal application must be provided.

b) Copy of the work permit and residence in force, the modification of which is requested, if requested in a different province.

c) Three photographs, meat size.

(d) Documents that justify the qualification or training required for the exercise of the profession, when the modification affects the employer, profession, sector of activity or professional circumstances.

e) Those documents that justify, where appropriate, the change of personal or professional circumstances of the holder of the permit, or of a geographical area.

2. In the case of changes in work permits for the change of employer, profession or sector of activity, in addition to the requirements set out in paragraphs (a), (b), (c) and (d) of the previous point, they shall be provided in relation to the undertaking Contractor, the following documents:

(a) Where applicable, national identity card or tax identification code and registration number in the Social Security or proof of free status document.

(b) A description of the activities of the undertaking or the job in question, which justifies the recruitment.

(c) Contract of employment or formal offer of placement, in which the essential elements and the basic conditions of the labour supply are included.

(d) Similarly, documents deemed necessary to accredit the employer's ability or solvency to meet the obligations of the contract may be requested.

(e) The foreign worker shall also demonstrate compliance with tax obligations and the contribution of the undertaking to the social security scheme, in respect of those cases where the requested amendment leads to a change in the activity of the company. self-employed account

3. If a change in an activity for an employed person is requested, the person concerned must provide the following documents:

(a) The project of establishment or activity to be carried out, with an indication of the expected investment, its profitability and newly created jobs, as well as the accreditation of having applied for the authorisations or licences required for the installation, opening or operation of the intended activity or for the professional exercise.

(b) Likewise, the fulfilment of tax and social security obligations must be credited, in the event that the work permit whose modification is intended is authorized to carry out an activity on its own account.

Nineteenth. Procedure.

1. Applications must be sent to the Provincial Directorates for Labour, Social Security and Social Affairs or to the offices of foreigners, where they are constituted.

2. Applications for the modification of a work permit shall be submitted, in any event, during their validity and prior to the change being sought, without the same being allowed to take place as long as the corresponding resolution is not given when refers to the employer, profession, sector of activity or geographical area.

3. The competence to resolve the requests for amendments referred to in this Order shall be the responsibility of the Provincial Directorates for Labour, Social Security and Social Affairs where the permit has been processed, except in the case of the provided for in Article 94.3 of the Implementing Regulation of the Organic Law 7/1985 of 1 July 1985.

4. Where the amendment concerns the geographical area, the decision shall be taken by the competent provincial directorate for the new territorial area requested. The favourable decisions shall be communicated to the labour authority which granted the work permit.

5. The decision to be reasoned shall be notified to the applicant, with the indication, if favourable, of the amount to be paid in respect of expenditure arising from the issue of a new card.

6. Once a favourable working order has been issued, the labour authority will send a copy of it to the Directorate-General of the Police (Commissioner-General for Foreign Affairs and Documentation), through the Police Commissioner, or, if it is operation; of the police services of the foreign office in the province for its entry in the Central Register of Foreigners.

7. The delivery to the foreign worker of the new credit card of the corresponding authorization, as well as the modification granted, after justification of the payment of the expenses resulting from their expedition, will be carried out by the Provincial Commissioner The police or, where appropriate, the police services of the foreign office, which must transfer the government's delegate or, where appropriate, the deputy government delegate in the province.

8. Where the request for amendment is submitted within the last three months of the permit, the accreditation of the modification granted shall be carried out by means of the appropriate administrative authorisation.

V. Work permit compatibility

Twenty. Compatibility of work permits for the exercise of self-employed and self-employed activities.

1. Foreign nationals wishing to carry out gainful self-employed activities at the same time shall obtain the corresponding work permits or authorizations to work in accordance with the requirements and procedures. (a) the provisions of the implementing regulation of the Organic Law 7/1985 and in this Order.

2. Where the processing of the work permits is carried out simultaneously, the permits granted shall have the characteristics and duration provided for in Article 75.I and II of the Implementing Regulation of Organic Law 7/1985.

3. If the application for a work permit for the exercise of an activity of different nature is dealt with during the term of another work permit, the permit to be granted shall have a duration equivalent to the period of validity remaining to the permission from which the foreign worker was already a holder.

4. In the granting and renewal of work permits for the simultaneous exercise of self-employed and other activities, in addition to the elements and circumstances provided for in Articles 76 and 78 of the Implementing Regulation of Organic Law 7/1985 for both permits, the compatibility of both activities in relation to their object and characteristics, duration and working time must be established.

5. Where the application for a work permit of a different nature is submitted within the last three months of the permit from which the worker is entitled, the accreditation of the authorisation to work shall be carried out by means of the of the competent labour authority, giving the same to the Directorate-General of the Police (General Commissioner for Foreign Affairs and Documentation), through the Provincial Police Commissioner or, if it is in operation, of the services police from the foreign office in the province for their entry in the Central Register of Foreign nationals, who will have to transfer to the Government Delegate or, as the case may be, the Deputy Government Delegate in the province.

Final disposition.

This Order shall enter into force on the day following that of its publication in the Official Gazette of the State.

Madrid, 25 February 1998.

BOCANEGRA SANDS