Requirements for Foreign Employees to Work
For any employer, at least 90% of its employees must be Mexican nationals. In addition, all technical and professional employees must be Mexican nationals, unless there are no Mexican nationals qualified in a particular specialised field, in which case the employer is allowed to temporarily employ technical and professional foreign nationals, but in a proportion not exceeding 10% of those working in the relevant field of specialisation. There are two additional conditions: (1) employers and foreign workers have a joint obligation to train Mexican workers in the specialty of the foreign workers; and (2) physicians working in enterprises must be Mexicans. These provisions do not apply to directors, administrators, or general managers of enterprises.
Also, all physicians, railway employees and employees on a Mexican-flagged ship must be Mexican nationals, Mexican civil aviation crews must be Mexican by birth. The recruiting, screening and hiring process is the same as for nationals; however, foreign employees must have a valid work permit before being hired.
The law limited authorisation for foreign nationals to work in Mexico is also subject to the requirements of the Migration Law, in force as of May 25, 2011, which establishes the following types of immigration status for foreign nationals in Mexico:
- Visitors: may not pursue employment in Mexico.
- Temporary residence: may not pursue employment, although they may file for work permission, and the length of their stay is linked to the person to whom they are linked in Mexico, not to exceed four years.
- Temporary residence with work permission: granted to those foreign workers whose work visa is sponsored by a Mexican company. The maximum length of a temporary residence card is four years. Students fall into the category of temporary residents.
- Permanent residence: all foreign nationals holding a status of permanent residence are allowed to work in Mexico. A permanent residence card does not expire. Foreign nationals under this status may start accruing time in order to file later for the naturalisation process. The Constitution grants foreign nationals the same individual guarantees as Mexican citizens, subject to certain restrictions and provisions as defined by law.
Does a Foreign Employer need to Establish or Work through a Local Entity to Hire an Employee?
Foreign employers that do not have a presence in Mexico must be aware of the applicable legislative and regulatory requirements before hiring an employee to perform in Mexico, including the rights, obligations protection of employees; tax implications; and the importance of accurately identifying the specific activities that the individual will carry out during his/her stay in Mexico in order to determine the appropriate visa.
Limitations on Background Checks
There is no express impediment or restriction for employers to request a criminal record certificate or carry out background checks (i.e. credit) under Mexican legislation. On the other hand, the Mexican “Data Privacy Law” governs the legitimate, controlled and informed treatment of personal data to guarantee the individual’s privacy and their entitlement to decide who, why and for which purposes their personal data may be processed (informational self-determination). There is a reasonable expectation of privacy in every data processing, being understood as the confidence that any person deposits in another regarding the personal data provided. According to the Data Privacy Law, criminal and financial/economic data is considered confidential information; any violation to this duty can entail civil and/or criminal liability. Moreover, financial/economic data is deemed as ‘sensitive data’ under the law and requires express consent from the ‘data owner’ (in the case at hand, the employee). One main obligation that employers must observe when gathering employees’ or incumbents’ personal data is delivering a Privacy Notice to each of them upon acknowledgement of receipt, containing the purposes of data processing and express authorisation for the processing of sensitive data by the ‘data owner’ (the employee).
Restrictions on Application/Interview Questions
In general terms, the employer has the freedom to ask the questions it considers convenient to a candidate in all phases of the recruitment process; in other words, there is almost no limitation to the scope of such questions from a legal standpoint. However, company policy and international guidelines might require global corporations to adhere to stricter procedures in the recruitment, interview and screening processes.