Labor Roots Residency

Labor roots residency is a process that allows foreigners in an irregular situation in Spain to obtain a temporary residence permit for one year. This option is aimed at those who can prove they have had an employment relationship in the country, giving them the opportunity to regularize their situation and access rights and benefits as legal residents.

What is labor roots residency?

To the question “What is labor roots residency?” it is a regularization modality that allows foreigners in an irregular situation in Spain to obtain a residence permit for work reasons. To qualify for this regime, one must prove they have worked for at least six months in the country over the last two years continuously. Additionally, it is required to show that the employer is willing to continue the employment relationship or offer a work contract. This type of roots residency seeks to regularize those who, despite being in an irregular situation, have demonstrated integration into the Spanish labor market.

Who can apply for labor roots residency?

Until now, labor roots residency has been a little-used permit managed by various Immigration Offices. However, following the Supreme Court’s interpretation in its recent ruling and the reform of the Immigration Regulations, we at Lexmovea believe that labor roots residency has undergone significant changes in its main applicants. It is essential to clearly understand all the requirements for labor roots residency and meet each one of them. To apply for labor roots residency in Spain, you must meet the following requirements:

• Be a non-EU citizen: Not be a citizen of the European Union, the European Economic Area, or Switzerland, nor a relative of citizens of these countries with the right to community residence.
• Demonstrate identity: Have a valid passport, travel document, or registration card that proves your identity.
• Continuous stay in Spain: Have resided in Spain continuously for at least two years prior to the application. Absences cannot exceed 90 days in the last two years.
• No criminal record: Not have a criminal record in Spain, or in your country of origin or the countries where you have resided in the last five years before arriving in Spain.
• Demonstrate employment relationships: Have had employment relationships for at least six months in the two years prior to the application. These relationships may have been regular or irregular.
• Meet labor requirements: The employment relationship must involve at least 30 hours per week, and the salary must be equal to or greater than the Minimum Interprofessional Salary (SMI). You may have worked for one or more employers.

Continuous stay of 2 years in Spain

Similar to the well-known social roots residency, labor roots residency can be processed if you have resided in Spain continuously for at least two years. This stay must be immediately prior to the application for the permit. Therefore, it is essential to document the residence in Spain and ensure there has been no absence from the country for more than 90 days during this period.

To prove the stay in Spain, you can provide documents that include your full name and the dates, such as historical registration, invoices, money transfers, or medical records.

Prove work for at least 6 months

During the two-year stay, you must have worked for at least six months. Additionally, the employment relationship must have some relevance. This means you must prove:

• Employment for others with a contract or contracts that involve a labor activity of 30 hours per week, or 15 hours per week over a 12-month period.
• Self-employment continuously for six months.

Documentation for the labor roots residency application

It is essential that all documentation is complete and in order to avoid delays or rejections in your application. If you have doubts about which documents to present or how to obtain them, we recommend consulting with an immigration expert, such as Lexmovea, to receive personalized advice and ensure the success of your process. To apply for labor roots residency, you must present the following documentation:

Labor Roots Residency Documentation

• Completed EX10 application form (signed): It is important to correctly indicate your address, contact phone number, and email address, as they may contact you through these means.
• Complete copy of your valid passport: If you have had other passports before, you should also attach copies or a police report in case of loss or theft.
• Criminal record certificate from the country of origin: The certificate must be original, apostilled or legalized (the apostille lasts for three months), and translated by a sworn translator in Spain.
  If the certificate is issued by your consulate or embassy in Spain, make sure it is apostilled by the Ministry of Foreign Affairs, European Union, and Cooperation (MAEC).

Documents to prove the two-year stay:

You must present any document that proves your continuous stay in Spain for at least two years, such as:

• Documents to prove the employment relationship:
  If you have had residence authorization and lost it:
  • Employment history certificate.
  • Employment contract.
  • Pay slips or other documents proving the employment relationship.
    If you worked without residence authorization:
  • Final court ruling.
  • Administrative resolution confirming the labor inspection and social security violation report.
  • Conciliation report in judicial or administrative proceedings.

Documents after admission of the procedure for Labor Roots Residency in Spain:

Upon the acceptance of your labor roots residency application, you must pay the temporary residence fee for exceptional circumstances. This fee corresponds to Model 790-052 and can be paid at collaborating banks or online through the electronic headquarters of the Ministry of Territorial Policy.

Legal Framework for Labor Roots Residency

Labor roots residency in Spain is based on the following regulations and modifications related to the new labor roots law:

• Organic Law 4/2000, of January 11, on the Rights and Liberties of Foreigners in Spain and Their Social Integration: This law establishes the legal framework for foreigners in Spain and includes labor roots residency as one of the pathways to obtain temporary residency (Article 31.3).
• Royal Decree 557/2011, of April 20, which approves the Regulation of Organic Law 4/2000: This regulation develops the Immigration Law and establishes the specific requirements, procedures, and necessary documentation to apply for labor roots residency (Articles 123 to 130).
• Royal Decree 629/2022, of July 26, which modifies the Regulation of Organic Law 4/2000: This modification introduced important changes to the requirements for labor roots residency, such as reducing the minimum stay in Spain and making labor requirements more flexible.

Labor Roots Jurisprudence:

• Supreme Court Ruling, Administrative Litigation Chamber, Fifth Section, January 24, 2024, Appeal 8727/2022: This ruling establishes that asylum seekers whose application has been denied and is under appeal cannot obtain labor roots residency during that period.

Asylum and Labor Roots Residency: Is it Possible?

With several rulings issued by the Supreme Court, a new interpretation of labor roots residency was established. With the entry into force of the reform of the Immigration Regulation, this category has been configured significantly differently, though it still remains an important figure for regularizing an illegal foreigner in Spain.

Currently, it is necessary to demonstrate that you have worked for at least six months within a two-year period. This employment relationship must have occurred during a legal stay or residence. Therefore, both asylum seekers and individuals working during an appeal process will not be able to count this work experience to apply for labor roots residency under these exceptional circumstances.

To prove the employment relationship and its duration, the applicant must present any evidence certifying the existence of a prior employment relationship during a legal stay or residence. This includes performing a labor activity in the last two years, where, for employment as a salaried worker, a minimum of 30 hours per week for six months, or 15 hours per week for 12 months, is required. For self-employed individuals, continuous activity for at least six months must be proven.

Impact of the Reform of the Regulation

With the entry into force of the reform of the Immigration Regulation, at Lexmovea, we believe that many individuals may qualify for labor roots residency to obtain a work and residence permit. This group includes:

• People who had a work and residence permit, worked, but could not renew it.
• Foreigners with a Highly Qualified Professional Residence Permit who cannot renew their permits.
• People who have a Community Card and are no longer eligible for it.
• Those who have worked as self-employed, among others.

Individuals Excluded from the Labor Roots Residency Application:

• Individuals who had a Red Card, worked, and were denied asylum.
• Initial asylum seekers or individuals within the asylum appeal process.

How to Apply for Labor Roots Residency in Spain

Now that you know where to apply for your Labor Roots Residency, the next question is: How do I apply for labor roots residency? There are several ways to apply for labor roots residency or the Authorization of Residence for Exceptional Circumstances, but the most recommended method is to apply electronically.

Labor Roots Residency Submission

You have two options for submitting your labor roots residency application:

In Person:

• Office: Go to the Immigration Office in your area or province.
• Appointment: You need to request an appointment in advance.
• Documentation: On the day of your appointment, bring the required documentation in original and copy, along with proof of payment for the corresponding fee.

Online:

• Platform: Access the Mercurio platform.

• Options:
  • With a Digital Certificate: If you have a DNI or NIE, you can complete the process using your digital certificate.
  • Authorized Representative: If you don’t have a digital certificate, you can request help from an authorized representative by the General Administration of the State, such as an administrative manager, social graduate, or immigration lawyer.
• Documentation: You must submit all required documentation in digital format.

Important: The labor roots residency permit is valid for one year, allows you to work, and is renewable. Like any other residence and work authorization in Spain, it is processed at the Immigration Office in the city where you are registered, and always by fulfilling the requirements for labor roots residency.

Labor Roots Residency Card

The Authorization of Residence for Exceptional Circumstances, Labor Roots, is a residence and work permit valid for one year. Once you hold this card, you can work both independently and for an employer without the need for further procedures.

Labor Roots Residency Resolution

The waiting time for the resolution of the labor roots residency application is typically 3 months, although this may vary depending on the province.

Labor Roots Residency Resolution

• The authorization granted will be valid for one year, and after that, you can apply for a residence permit or a residence and work permit.
• TIE Application Deadline: You have one month from the notification to apply for the residence and work card (TIE) at the police station.
• Appointment: Schedule an appointment at the police station for fingerprinting and the issuance of the TIE.
• Documentation for the Appointment:
  • EX-17 application.
  • Paid fee using model 790-012.
  • Original passport.
  • Favorable resolution.
  • Registration certificate.
  • Recent photo.
• TIE Issuance and Pickup: You must return to the police station within 30 to 40 days to collect your TIE.

If the resolution is unfavorable:

• Appeal Options: You have two options to appeal the decision:
  • Administrative Appeal: You can file an appeal with the Immigration Office within one month of the notification.
  • Judicial Appeal: You can file a contentious-administrative appeal with the courts within two months of the notification.

It is important to act quickly in case of a denial and seek legal advice to evaluate your options and defend your rights.

Renewing Labor Roots Residency

Like any other permit in Spain, it is necessary to renew it before its expiration to avoid being in an irregular situation. To renew this permit and modify it to a Residence and Work Authorization for an Employer or Self-Employment, certain requirements must be met, especially regarding labor conditions. You can also renew it by proving your own economic means or those of a direct relative.

Differences Between Social Roots and Labor Roots Residency in Spain

What is the difference between these two types of roots residency? Are they the same? Which one is better? These are common questions. Here are the key differences between each permit:

Social Roots Residency:

• To process this permit, you must prove continuous residence in Spain for the three years prior to the application, have a full-time job offer, demonstrate personal resources, or show the intention to start a business.
• Given the current labor situation in Spain, obtaining a job offer or starting a business is very challenging, making it difficult for many foreigners to meet the requirements for Social Roots Residency.

Labor Roots Residency in Spain:

• To process Labor Roots Residency for immigrants, the Immigration Office will verify that you have resided in Spain for at least two years continuously before the application and that you have had an employment relationship for at least six months. No job offer is required.
• Unlike Social Roots Residency, Labor Roots Residency does not require a job offer, nor does it require proving personal resources or starting a business. This significantly increases the number of people who can meet the requirements for this permit, offering another pathway to regularize and obtain a residence and work permit in Spain.

Frequently Asked Questions About Labor Roots Residency

1. What documentation is required to prove the labor relationship for Labor Roots Residency? To prove the labor relationship for applying for labor roots residency for immigrants, you can present work contracts, pay slips, company certificates, work history reports issued by Social Security, and any other documents that show the employment relationship and its duration.
2. Can I apply for labor roots residency if I come from asylum? Before the regulatory reform, it was possible to apply for labor roots residency if the requirements were met. However, following the Supreme Court ruling, the time worked during asylum or during the asylum appeal process does not count towards applying for labor roots residency.
3. How long does it take to resolve a Labor Roots Residency application? The resolution time can vary, but generally, Immigration Offices have a maximum period of three months to resolve the application. If no response is received within this period, it is considered a rejection by administrative silence.
4. What happens if my Labor Roots Residency application is denied? If your application is denied, you can file a motion for reconsideration with the same Immigration Office or take the judicial route through a contentious-administrative appeal.
5. Can I include my family in my Labor Roots Residency application? No, the Labor Roots Residency application is individual. However, once you obtain the residence and work authorization, you can apply for family reunification to bring your immediate family members to Spain.
6. Is it possible to apply for Labor Roots Residency if I have worked irregularly? No, one of the main requirements is to have worked legally, either with legal stay or residence in Spain during the six months of work that must be accredited.
7. What is the difference between Labor Roots Residency and Social Roots Residency in terms of stay requirements in Spain? Labor Roots Residency requires continuous residence in Spain for two years, while Social Roots Residency requires three years. Additionally, Labor Roots Residency does not require a job offer for processing, unlike Social Roots Residency.
8. Can I work in any sector with the Labor Roots Residency authorization? Yes, the Labor Roots Residency authorization allows you to work both as an employee and self-employed in any sector of activity.
9. What happens if I have been out of Spain for more than 90 days in the last two years? If you have been outside Spain for more than 90 days in the last two years, you would not meet the continuous stay requirement and therefore could not apply for Labor Roots Residency.
10. Can I apply for Labor Roots Residency if I am in the process of renewing another type of residence permit? No, you cannot apply for Labor Roots Residency if you are in the process of renewing another residence permit. You must wait for the renewal process to be resolved before applying for Labor Roots Residency.
11. Is it possible to apply for Labor Roots Residency if I am in Spain as a student? No, the student residence permit is not considered a legal stay or residence for applying for Labor Roots Residency. However, you could change your immigration status if you meet the necessary requirements. In any case, labor roots residency is not usually a good option for students.
12. What is labor roots residency? Labor roots residency is a concept in Spanish legislation that allows foreigners in irregular situations to obtain a residence and work permit. This process is based on the existence of a labor relationship with a company that has employed the worker for a minimum period of time.