We have developed a legal strategy to assist immigrants who fail to fulfill the strict requirements for residency that have been recently imposed. Many expats, perma-tourists, and irregulars who fail to fulfill the requirements are, nonetheless, entitled by law to the right to live legally in this country.
Our innovative strategy consists of litigating directly at a Federal Court for your citizenship, regardless of your legal status (whether you have a student or tourist visa, have stayed as a perma-tourist, entered the country illegally, or have received a deportation order, for example). We take advantage of the fact that residency and citizenship are two parallel systems ruled by different laws (Law 25.871 and Law 346, respectively) and offices (Immigration Office and Federal Court, respectively).
Using our highly specialized knowledge of Supreme Court and Federal Chamber precedent, we put together the strongest case possible for each individual to obtain his Constitutional rights. As a result of extensive experience in advocating for a large number clients at all levels of the legal system, including the Supreme Court, our firm is able to represent each unique situation effectively in court. We work as specialists, customizing our knowledge in order to provide you with the best legal advice and litigation strategy for your particular situation.
We, the representatives of the people of the Argentine Nation, gathered in General Constituent Assembly by the will and election of the Provinces which compose it, in fulfillment of pre-existing pacts, in order to form a national union, guarantee justice, secure domestic peace, provide for the common defense, promote the general welfare and secure the blessings of liberty to ourselves, to our posterity, and to all men of the world who wish to dwell on argentine soil: invoking the protection of God, source of all reason and justice: do ordain, decree, and establish this Constitution for the Argentine Nation.
- Preamble to the Constitution of Argentina
History of Immigration in Argentina
Argentina has one of the most open citizenship laws in the world. When the National Constitution was enacted in 1860, the Argentine government faced an empty country with vast amounts of land but few citizens. Our Constitution embodied the ideas of Alberdi and Sarmiento, for whom prosperity would be achieved only if the nation had a sufficient population. Populating the land was such a high priority that several articles of the National Constitution were dedicated specifically to accomplishing this goal. Articles 14, 16, and 20 set forth many benefits for all inhabitants, including according civil rights to all. As regards the acquisition of Argentine citizenship, the National Constitution set a low threshold: the only requirement to be 2 years of continuous residence in the country.
In the same vein, in 1869, Law 346, the “Citizenship Law,” was enacted with the objective of attracting 100 million immigrants. The plan worked, but with an undesired political inconvenience for the conservative party: 40 years later the son of an unknown immigrant was elected President. Since losing the Presidency, the conservatives have never been able to win another election. However, a couple of decades later the conservatives, once again gained, political ground by brute force. From 1930 until 1983, a series of dictatorships systematically restricted access to Argentine citizenship and the rights of immigrants. Jorge Rafael Videla enacted the last version of these xenophobic laws on citizenship, L aw21.795. The law had 25 requirements for being eligible for citizenship, including to speak and read Spanish, to have legal residency, and to have legal work.
When democracy was restored, the original Law 346 was reinstated by Law 23.059 in 1984 with its original philosophy: the assimilation of foreigners into Argentine society. Argentina is, after all, a nation of immigrants. This liberal law and its accompanying presidential decree 3.213/84 remain in effect today.
Residency v. Citizenship
Why, then, is it generally known within the expat community that dealing with immigration bureaucracy at Migraciones is a nightmare? The explanation for this paradox is three-fold.
First, Argentina has two separate systems available to foreigners: residency and citizenship. Residency involves an administrative procedure at Migraciones. Citizenship involves a legal procedure at the courts.
Second, both systems suffer from the effects of the series of brutal dictatorships and social unrest, during which foreigners and immigrants were unwelcome. Xenophobic policies were the norm for more than half a century until democracy was restored. Although the xenophobic laws for both residency and citizenship have since been repealed (in 1995 and 1983), the burdensome bureaucracy still exists at both Migraciones and the courts today as an unfortunate remnant of these dark periods of Argentine history. Because the process can be undertaken without a lawyer, most applicants have continued to face the same bureaucratic roadblocks without seeking enforcement of the currently valid laws.
Third, for citizenship one can seek legal recourse at court against bureaucratic inefficiency leftover from the Videla dictatorship. When faced with a denial of residency from Migraciones, it is possible to contest this administrative discretion, but appellants face a negative presumption in favor of the State. On the other hand, when dealing with federal courts for citizenship, applicates face federal judges who understand that the spirit of the law is to protect and integrate immigrants into Argentine society.
Law 346, the National Constitution, and the doctrine of the Supreme Court all clearly dictate that citizenship should be granted to immigrants even though they may be facing “irregular” immigration situations (perma-tourists, illegal entry, expired visas, etc.). Armed with the law, one can appeal when met with resistance at lower levels of the court. This is why citizenship is a much more attractive option than residency for many foreigners.
Obtaining the Right to Citizenship
The valid laws governing citizenship (Law 346, Law 23.059, and Decree 3.213/84) set forth very simple requirements:
(1) to be 18 years old;
(2) to have been living in Argentina for 2 years; and
(3) to apply for citizenship before a federal judge.
Furthermore, if you have an Argentine spouse or child, then citizenship is available immediately. The only other requirements of note are an “honest way of living” and a clean criminal record. In fact, the citizenship procedure can be undertaken without a lawyer and is free of fees. Nonetheless, it is not easy to obtain citizenship when one is “irregular,” such as having been to Uruguay many times as a perma-tourist.
As explained above, for historic reasons, federal courts are still reluctant to recognize the rights of ¨irregular¨ immigrants, They usually request the following administrative requirements:
(1) Legal residency
(2) Legal work
(3) That you speak, read and write Spanish
(4) That you renounce your native citizenship
(5) DNI with permanent residency
(6) Birth certificate apostilled and translated by public notary
(7) Certificate of a clean criminal record from your home country
(8) Certificate of a clean criminal record in Argentina
(9) CUIT or CUIL number
In order to overcome this discrepancy between the formalities requested by the courts and the actual requirements in the law, legal expertise is needed to assert one’s constitutional rights.
Dr. Rubilar contested the application of this requirement for obtaining citizenship, and met with success on 12 appeals during 2011, changing the precedents that have existed since 1978.
Our law firm specializes in enforcing constitutional rights using laws and precedents from the Supreme Court and lower courts. First, regarding the relevant laws, the National Constitution is the supreme law in this country. It works as a catalog of guarantees to protect your freedom against the abuse of power of the government. Argentina is unique because every single judge, regardless of his position in the judicial hierarchy, is responsible for protecting and enforcing the National Constitution and the rights it guarantees. The relevant articles in the Constitution clearly favor grants of citizenship.
Second, regarding precedents from the courts, we have worked to accumulate a large body of positive case law. Due to the fact that the citizenship law has existed unchanged since 1869 in its present form, the courts have issued many precedents on which we can rely on to provide a solution to almost every immigration situation we might face. Issued from the Supreme Court alone are over 100 years of jurisprudence enforcing the rights of inhabitants to live in this country. Citizenship has been granted to immigrants who lacked legal residency or entered the country illegally, or even to immigrants with criminal records in exceptional cases.
Dr. Rubilar has extensive experience dealing with Constitutional guarantees, both from a theoretical standpoint as a professor of law, and as a practical matter as a litigant enforcing Constitutional rights at Court. He recently won 7 leading cases at the Federal Chamber that changed precedents of the last 32 years to allow applications for citizenship regardless of legal status, with “irregular”work (“trabajo en negro” or “working under the table”), and reducing to minimum the requirements (birth certificate or DNI or passport or CI instead of birth certificate plus DNI plus passport plus CI). Furthermore, the 2-year requirement should be fulfilled at the time of the sentence intead of at the beginning of the process, meaning that you can apply with only one year in Argentina.
Strategic Benefits of Citizenship
In contrast to the Constitutional guarantees protecting the rights of immigrants to stay as citizens in Argentina, the policies governing residency are subject to the shifts of political winds. Since September 9, 2010, immigration policies have become more restrictive. Decree 616/2010 raised the requirements for rentista and inversionista visas up to USD2000/month and USD470,000 respectively. The process of obtaining a work visa through employment at a company is complex. Rather then seeking a form of residency that is hard to obtain and is governed by policies subject to change, we invite you to rely on our innovative strategy to provide legal status for immigrants who do not fit the new immigration requirements set forth in Decree 616/2010. If you have encountered difficulty with bureaucracy at Migraciones or at court, you can turn to the law firm that is litigating precedent-setting cases in this body of law.
The Citizenship Procedure
The procedure for obtaining citizenship is comprised of presenting your application before a Federal Judge. Under Ley 346, the requirements are simple, but to put together the strongest case possible, we request that you provide us with various types of evidence. This includes, for example, evidence of your work, even if you”work under the table”, it means, without legal permission, in order to demonstrate to the judge that you have an “honest way of living” as required by the law. Evidence varies from case to case, and we work creatively with each client’s situation to put together evidence showing that you merit citizenship. After we have gathered your documents and information, we accompany you to present the application at the court.
After the judge receives your application, the judge investigates your background by submitting requests for information about you to 7 agencies, including the immigration office, the police, Interpol, and RENAPER (Registro Nacional de las Personas). After about 7 months, responses to the reports are received. An edict is published in a newspaper, after which the judge makes the final decision. If he/she approves your case, then you swear an oath and are granted the “Carta de Ciudadanía.” The Carta is the official document that makes you an Argentinian. With this document, you can apply for your Argentine passport, DNI, and other documents.
Note that the procedure is free. There is no filing fee at court. The only expenditure is the cost of publishing the “edict” in a newspaper for two days, announcing that you are to be granted citizenship.
Note also that you can apply for citizenship without a lawyer. However, unless you have permanent legal residency, work legally, speak and read Spanish and have basic knoledge of the National Constitution, among other requirements, you need specialized legal assistance to file your application successfully in court. For example, your application might be rejected at the courts if you do not already have a DNI, or cannot prove that you have been working legally in Argentina. For these cases, a lawyer who understands the legal precedents governing citizenship is crucial for success at court.
What does 2 years of “continuous residence” in Argentina mean?
According to Supreme Court and the Federal Chambers:
1) You need to have been in Argentina for 2 years by the time your citizenship is granted. This means that you can apply within 12 months and 1 day of arrival.
2) Residency means that you live (are present in the country) in Argentina as a matter of fact, regardless of your legal status.
3) Continuous means that you did not change your address to that of another country. You can prove that your address has been in Argentina by demonstrating that you had the “will” to keep it in Argentina. Travelling abroad does not interrupt continuity.
Is there a requirement of permanent residency as a pre-requisite for citizenship?
This requirement was abolished 27 years ago for citizenship. Citizenship and residency are governed by two legal systems that work in parallel. One can choose between the two.
Does working “under the table” fulfil the “honest way of living” requirement of the citizenship law?
Yes. This may seem surprising because it is one of the most frustrating problems that foreigners face when obtaining residency. Similar to Migraciones, federal judges request that you work legally (trabajo en blanco), as proven by a salary receipt, a CUIT or CUIL number, or a receipt of payment of taxes as a freelancer, for example. However, this is impossible to show if you do not already have legal residency. Dr. Rubilar contested the application of this requirement for obtaining citizenship, and met with success on appeal on March 1st at the Federal Chamber of Capital Federal, Buenos Aires. The judges determined that working “under the table” qualifies as an “honest way of living” as required by Ley 346. The applicant only has to show proof of income and that the work is honest, or that one is studying.
What documentation do I need?
It depends. If you apply based on staying in Argentina for 2 continuous years (rather than an Argentine spouse or children), you will need:
a) any one of a DNI, CI, passport, or birth certificate;
b) certificate of your address (obtained from the police); and
c) evidence of your honest way of living (varies widely from case to case).
The source of information provided in this website is Dr. Rubilar.