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MOVING TO MEXICO'S A BREEZE

By

jennifer j. rose, and is presented with her kind permission.

jennifer j. rose practices law in Shenandoah, Iowa, and is a foreign legal consultant in Morelia, Michoacan. This article is general in scope and should not be considered legal advice.

.....compared to heading west in a Conestoga

Hot on the lips of every American politician clamoring to seal America's borders, immigration summons images of Ellis Island, undocumented workers, the nanny problem and political and economic refugees. Whether you're sojourning in Mexico as a Mazatlan beachcomber, an aging boomer planning to hang out for a few years, or a 65 year old retiree, you become an alien once you traverse the U.S.'s southern border. Foreigners legally in Mexico fall into one of four categories: nonimmigrant (no-inmigrante), visitor (visitante), immigrant (inmigrante), or one who has immigrated (inmigrado).

The most common no-inmigrante status, one which barely evokes thoughts of citizenship and immigration, is the tourist (turista). Anyone traveling beyond Mexico's border towns (and indeed anyone spending more than three days in one) must obtain a tourist visa or tourist card. This simple free two-part carboned form, formally called an "FMT," is valid for 180 days, is what most people receive at the airline counter and complete en route. Available at nearly any travel agency and the Mexican Consulate, as well as at the aduana, this document applies to land travelers.

All that's needed to obtain the tourist card is proof of citizenship. While a valid passport is the document of preference, a certified copy of a birth certificate accompanied by photo ID, naturalization certificate, or an affidavit of citizenship accompanied by photo ID will suffice. The tourist card is simply a permit to enter Mexico as a visitor. Employment is not permitted, and amount of accompanying goods is limited, although it's not defined.

While the tourist is granted six months' stay in Mexico, customs officials consider appropriate what one might need for a two-week stay. (And I still have a hard time convincing them that four suitcases are a the minimum requirement for a 10-day visit.) Entry by land allows a mere $50 worth of possessions, beyond their clothing; for those traveling in a motor home or recreational vehicle, a more generous attitude applies to electrical appliances and televisions. The airborne tourist has a $300 limit. Back in the old days (about a year ago), Mexican customs officials paid little attention to these limits. Today, they've become quite serious.

Be prepared to show documentation of value and to pay an import tax...even on goods you may be bringing in your own use during a vacation if you're traveling by car. During last May's deadly heat, I crossed at Laredo at 2 a.m., fully loaded, hauling a furnace in the back of my Suburban. Anticipating the tax, I had the invoice in hand, figuring that would limit the agents' taxing enthusiasm. I was wrong; they even taxed me on some old pottery flower pots (but allowed me to determine values). In all the tax amounted to less than the bribe of the old days would've -- but I gladly would've paid the extra $20 to avoid the agonizing sweat, 2-hour delay and paperwork. Even for a simple car trip on a tourist visa, a manifest can avert problems.

MARRIED WITH CHILDREN

If a minor child is not escorted by both parents, a notarized consent from the absent parent is required. A similar consent from both parents must accompany the child traveling along or escorted by a nonparent. A U.S. court order authorizing the travel can substitute for an absent parent who refuses to consent or who cannot be located. If paternity has not been established, have the child's birth certificate available, showing that there is only one parent. Where the child has a passport issued in the child's own name, then consents are not necessary.

IMPORTING YOUR CAR

If you're driving, you'll be able to temporarily import your car for the same 180-day period. At the aduana, you'll need: 1) the original certificate of title, 2) an affidavit from the lienholder authorizing the temporary importation of the car, 3) a valid state registration, 4) a valid driver's license issued outside of Mexico, and 5) Mastercard, VISA or American Express, in the driver's name. You will use the credit card to pay the $11 fee. If you don't have a credit card, then you'll be required to post a bond based upon the car's value. The car permit is good for multiple crossings during its six-month life.

Once you've been granted FM-3 status, which is valid for a year, your car's import permit theoretically should be of like duration. The practice may vary with each border official. Some may insist that your car's one-year period began on the date on which the FM-3 was issued; others will hold fast to the six-month rule. If you end up with a six-month permit expiring before your FM-3 does, your sole recourse will be to make another run for the border when the permit's about to expire.

Conventional wisdom might dictate that annual renewals of the FM-3 and FM-2 would likewise apply to your automobile, but current theory seems to dictate that "as long as you're legal, so to is your car." This may be well and fine so long as your car remains far from the border. If you're close to the border, my advice would be to grin and bear it, fill out more forms, pay the $12 fee, and obtain a new permit rather than impress the border officials with arcane knowledge of the finer points of Mexican law.

IMMIGRATION'S EASY IF YOU'RE A DOG

This full impact of this notion didn't really hit me until a Pemex attendant, noticing my Doberman luxuriating in the back seat of a filled-to-the-roof Suburban, mentioned that it was easier for a dog to traverse borders than a human. All that's needed to bring your dog or cat into Mexico is a U.S. Interstate and International Certificate of Health granted within the past 72 hours, stating that the animal has no communicable diseases. To err on the safe side, a current rabies certificate wouldn't hurt. No permit or visa is needed. To bring a pet back into the United States, you'll need another health certificate and a rabies certificate not more than thirty days old. In 20 years of chauffeuring pets back and forth at least thrice annually, I've never been asked for documentation on either side of the border. (I still would urge you to arm yourself with paperwork.)

AND TO THINK OUR ANCESTORS HAD ONLY CARRY-ON

Once you've obtained your FM-3, you're allowed a one-time opportunity to import a reasonable amount of household goods into Mexico. While there's no definition of "reasonable amount," be prepared for payment of taxes and some serious negotiation. Long before your move, you'll need to submit a detailed inventory, in English and Spanish, detailing all you intend to import, down to brand name and serial numbers and about $75 to the Mexican Consulate for review, stamp and approval.

According to the Mexican Consulate, you can bring your personal goods, including computers, televisions and electronic equipment into the country duty-free. Used appliances seem to fare better than those still showing the warranty card. The customs officials at the border, reading from a different primer, will likely embrace a totally different interpretation of what constitutes "household goods." Plan on a very long and expensive day at the border arguing that your van of household goods has been approved by the Mexican Consulate to enter without duty, or consider hiring a U.S. bonded freight broker, whose fees ultimately may be less than the "transition fee" (read tax) you may end up forking over as your Consulate-approved manifest is challenged.

AND NOW FOR THE NITTY-GRITTY

The nontourist immigration law is laden with restrictions and inconsistencies that would make Kafka blush. Statutes, administrative regulations and internal policy, which it not always written, is determined by the Secretary of the Interior (Secretaria de Gobernacion), General Bureau of Population (Direccion General de Poblacion), and the Department of Immigration (Departamiento de Migracion). And, like anything designed and regulated by committee, the result is often inconsistent and in flux.

Many long-term foreign residents do nothing to formalize their residency, merely obtaining a new tourist card every six months. Certainly, that's the cheapest and most hassle-free method, especially for someone who wants to visit the border twice a year and isn't concerned about bringing in household goods. Warning signs are spotted at the aduana stating that only one six-month car permit will be issued in a year's time. Ignoring the warning, I've brought my car in and out on this basis a number of times without problem. Asking for the official interpretation, I was told that the restriction had been the law for a long time but was only recently being enforced. The intent was that foreigners who plan to remain in Mexico for more than six months with an automobile are expected to obtain FM-3 status.

Allowing the holder to remain in Mexico for an extended period of time as a no-inmigrante, the FM-3 is a one-year residency permit, renewable annually. While it may be applied for at any Mexican immigration office within Mexico, commonly it's applied for at the Mexican Consulate assigned to your region in the States. This procedure is fairly easy and straightforward, and it one that doesn't require legal counsel. Contact the Mexican Consulate in your region to determine its requirements.

Each office has its own idiosyncracies and style; what might pass muster in New York might be quickly rejected in San Jose. This process can be completed by mail. In general, you will need:

• a) a letter in Spanish (in Chicago, English only was accepted) addressed to the proper immigration authority, stating the applicant's full name, current address, a request to obtain the FM-3, and a statement to the effect that all pertinent paperwork is attached,
• b) your passport,
• c) proof of income,
• d) a certificate of moral solvency from the local police attesting to your criminal record (or lack thereof),
• e) a doctor's certificate stating that you have no communicable diseases, including HIV,
• f) photographs,
• g) cash or a money order for $53 (check first, these rates are variable - ed).
• If you're divorced, you'll need a certified copy of your divorce decree; and
• if you're married, you'll need a certified copy of your marriage license.

It may be necessary that these documents be translated into Spanish and authorized by the Mexican Consulate. Now, make four copies of all of this, sending in the originals and three copies. To ensure a speedier return, enclose a self-addressed, stamped envelope, too.

Upon approval, the Mexican Consulate will return your passport to you, along with a small passport-like book, which is the FM-3. Pay attention: here's the part the Mexican Consulate won't tell you. Even though you've paid the fees and had it stamped at the aduana on your way into Mexico, the FM-3 isn't valid until you've had it officially registered with Gobernacion within 30 days of your entry into the country. If you don't do this, you'll have to pay a penalty when you obtain your renewal.

The FM-3 inmigrante rentista status, which does not permit employment within Mexico, is intended for those who plan to live in Mexico permanently and be domiciled there and who are sustained by resources and unearned income brought from outside Mexico or earned from Mexican-based investments. The FM-3 permits the holder to import a reasonable amount of household goods and one automobile. Once you've validated your FM-3, you may begin the process of converting it to the higher-quality "E-ticket" FM-2 or continue to renew it on an annual basis.

The renewal process for the FM-3 as well as the FM-2 must be handled within Mexico at the Gobernacion office. Once again, you'll need to provide:

• a) your U.S. passport,
• b) your FM-3,
• c) proof of your residency in Mexico (which can consist of a phone or utility bill),
• d) form SHCP-5 provided by immigration,
• e) proof of income,
• f) more photos, and
• g) about $75.
• Some claim that a letter signed by the FM-3 holder and two Mexican witnesses stating that the applicant's been an upstanding citizen living harmoniously in the community, as well as a photocopy of the witnesses' photo ID, is also required.

The renewal process will seldom be completed on the day you bring in all of the paperwork...expect at least a 48-hour wait and be prepared for a month's. Start on the renewal process six weeks before the FM-3 expires just to be on the safe side. The office in San Miguel de Allende was the most helpful of any government office, in any country that providing patient, untiring explanation - - I suspect that it's really staffed by English agents working undercover! The renewal process can also be handled by mail.

After the fifth FM-2 annual renewal, the FM-2 inmigrante is eligible to apply to become inmigrado, or a permanent resident alien. Conversion from inmigrante to inmigrado status is not automatic. Kinship with a Mexican citizen, by blood or marriage, positively influences the granting of a favored status.

Once inmigrado status is reached, no more annual renewals are necessary. This "green card" status, the highest category for a permanent foreign resident, permits the holder to work in any lawful activity in Mexico. Your only limitation is that more than 36 consecutive months' absence or accumulated absences of five years over a ten-year period from Mexico results in its forfeiture. You may no longer be able to obtain an import permit for your U.S.-registered automobile, although by that time, you'll likely have decided to "buy Mexican." Legalization of your U.S-registered car is another option if you're willing to pay the tax. In most aspects of your life, you have the most of the same privileges as a Mexican citizen...except for voting, tending bar, operating a brothel and running for public office.

It's time to talk about money. For an FM-3 or FM-2, you'll need to show that you have income from the states or Mexican investments of about $800 per month. The dollar amount, pegged to the Mexican minimum wage (with a multiplier), fluctuates with the exchange rate and the prevailing political climate. One-half of that amount is required for each dependent. At renewal only, the financial requirements are halved if you own your own Mexican dwelling. You'll need to provide a notarized copy of the deed (escritura) or trust (fideicomiso) document.

While the US-based Mexican Consulate may been somewhat more lenient in scrutiny of your proof of income (a bank president's letter has been known to suffice), you'll need more proof at the time of renewal. For some reason, immigration authorities are more concerned that you demonstrate monthly income instead of annual. Be prepared to show a year's worth of bank statements demonstrating that deposits of the requisite monthly amount have been made, even though they may only ask for the past three. Statements from Mexican banks and brokerages are accepted without question; but if your account is US-based, you'll need to have the statements authenticated by the U.S. Consul in Mexico. If your income is paid less frequently than monthly, or if you don't have regular income...there's a way to still show proof of income. Deposit $1000 in your bank account at the beginning of the statement period, withdraw it before the next statement period, and keep up the routine of deposits and withdrawals, recycling the same funds.

You'll always need about eight photographs of a certain size, hue and dimension, profile and frontal. This is not the time to be concerned about glamour, because you must be portrayed without glasses, jewelry or other adornment, hair pulled back to reveal the hairline and ear shape. Don't argue that your mere visage might be enough to dissuade the kindest-hearted immigration official. (I suspect that these may be kept in a secrete hoard by national security forces to scare off invading aliens.)

While most people would rather have a root canal than deal with lawyers, like dentists, they can be extremely helpful, time-saving and cost-cutting. While the renewal process, conversion from FM-3 to FM-2 status, and application to become inmigrado can surely be accomplished without legal counsel, you may find yourself shunted from bureaucrat to bureaucrat, always lacking some document or failing to dot an "i." The law and process is not rocket science, but you'll need some savvy and familiarity with bureaucracy that's hard to develop during an annual foray to the immigration offices.

Some freelance lay immigration entrepreneurs easily navigate these waters through experience and volume, and their fees may range for modest to more than the going rate for a Harvard lawyer. Because the main immigration office and the only one which considers the application to become inmigrante is located in Mexico City, consider using Mexico City counsel for the simple reason that you'll save portal-to-portal charges of local counsel, who while very competent, may not have a sufficiently large immigration practice to understand its day-to-day quirks.

Granting your Mexican lawyer a power of attorney (carta de poder) authorizing him to act in your stead can mean that nearly all of the legal work, after the fingerprinting's done, can be accomplished even long-distance. Time, travel, sanity, and even setting foot in a government office can take its toll upon the most determined, thus making a small investment in DHL, Mexipost and legal fees worthwhile. (I'm not shilling for the legal profession....even though I'm one, I've found it's cheaper in the long run to use Mexican immigration counsel.)

Planning to work while you're in Mexico? It can be done, but there are stringent rules. One variant of the FM-3, valid only for renewable 6-month periods, sponsored by the employer, will enable a foreigner to work for that employer only and only in the areas specified in the immigration document. The applicant must have needed skills that are not met in the workforce, and the FM-3 working status is contingent upon continued employment by the sponsoring employer. When the job ends, so too does the FM-3. In these situations, the employer generally assumes responsibility for handling the legal work.

A foreigner planning to reside permanently in Mexico, bringing capital for investment in an industry which contributes to the country's economic and social development, may qualify for an investor (inversionista) FM-2 status. Substantial requirements must be met, e.g. hiring a significant number of Mexican workers, before government approval will be granted, and the financial requirements can be hefty. This is not a route for the would-be immigrant planning to open an espresso bar or bookstore.

This article cannot address all of the categories available for immigration, e.g. the exceptional case professional (profesionial), high level management (cargos de confianza) working in established Mexican businesses, research scientist (cientifico), technician (tecnico), or artist and athlete (artista y deportista), whose employers will nearly always manage the immigration and work permit process. Nor is it possible within this article to address the situations of a foreign member of a Board of Directors (consejero), an alien seeking political asylum (asilado politico), a student (estudiante), the refugee (refugiado), or distinguished visitor (visitante distinguido).

NAFTA created four new non-immigrant visa classifications: the 30-day business visitor paid from a source outside of Mexico, the one-year professional in certain fields, the intracompany transferee having managerial, executive or specialized skills, and the investor/trader. Each of these categories requires skilled immigration counsel.

Two very important rules always apply: always supply more documentation that you'll ever think you might need and plenty of photocopies of each. Expect to be photographed, fingerprinted and don't fudge on the requested documentation. If immigration asks for bank statements, don't offer them tax returns as an alternative. If you're weary, ponder for a moment what the U.S. Immigration and Naturalization Service requires of its postulants.

While this is written without political overtone (the libertarian in me says that all peaceable folk should be able to cross borders at any time without government interference), immigration into Mexico is not a matter of right. There's a tremendous amount of discretion involved. The Mexican General law of Population allows the Mexican government to deny entry, refuse renewals or changes in immigration status when:

• 1) no reciprocity exists between Mexico and the applicant's country,
• 2) demographic interchange between Mexico and the applicant's country are not in equilibrium,
• 3) nationality, category and vocational activity quotas have been filled,
• 4) the permit has been deemed not to be in the national interest,
• 5) the applicant's conduct violates "morality and good customs," or
• 6) the applicant has broken Mexican laws or regulations. American xenophobia and its treatment towards Mexicans, even undocumented workers, can quickly sour the official Mexican stance towards foreigners, even those injecting capital back into the country.

  Copyright 1996-1998 by jennifer j. rose

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