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Contrato de trabajo para extranjeros sin papeles

España recibe cada año a cientos de extranjeros. Sin embargo, no todos ellos cuentan con la documentación completa que les permita permanecer de manera legal en el país. Por lo que surge la pregunta ¿Se puede contratar a una persona sin papeles?

La respuesta dependerá de si la persona proviene o no de un país dentro de la unión europea y si ya se encuentra o no residiendo dentro del territorio español. Por lo que es necesario evaluar cada situación por separado para poder determinar que se puede o no hacer en cada caso.

Índice

    ¿Cómo se puede contratar a un inmigrante sin papeles?

    La forma legal más sencilla es que la persona extranjera provenga de un país perteneciente a la unión europea. En este caso no se necesita ningún tipo de permiso de trabajo, por lo que el empleador puede incorporarlo al equipo como cualquier otro miembro de su personal.

    Por otra parte, si la persona que se desea contratar procede de un país fuera de la unión europea, la manera de realizar el proceso es a través de un precontrato y mientras este se mantenga, el empleado o el empleador deberán tramitar el visado y los permisos correspondientes para que la persona pueda laborar legalmente en España.

    ¿Qué es un precontrato?

    Un precontrato es un tipo de contrato firmado por ambas partes, en donde el empleador se compromete a brindar al empleado la posibilidad de desarrollar una actividad económica por un largo periodo de tiempo. Por su parte, el empleado garantiza realizar esta actividad siguiendo los lineamientos del empleador.

    La actividad a desarrollarse deberá cumplir todos los reglamentos y normativas establecidas por ley vigente así como por los convenios colectivos correspondientes a cada caso. Es importante considerar que la retribución al empleado por la actividad desarrollada no deberá ser menor al salario mínimo interpersonal para jornada completa y cómputo anual incluso si se trata de un trabajo de tiempo parcial.

    Durante la vigencia del precontrato se deberá tramitar toda la documentación necesaria para la permanencia temporal del empleado así como el permiso para desarrollar cualquier actividad económica. Después de obtener esta documentación, entonces se podrá celebrar un contrato de trabajo con todos los beneficios estipulados en la ley como lo tendría cualquier otro empleado.

    ¿Cuál es el proceso para la legalización de un empleado sin papeles?

    El proceso puede ser bastante largo y algunos de los pasos deberán ser realizados por el empleado y otros por el empleador, por lo cual es importante el interés de ambas partes para poder acelerar el proceso. Los pasos a seguir son los siguientes:

    Solicitar el permiso de residencia temporal y de trabajo

    En primera instancia se debe hacer una solicitud para la residencia temporal y de trabajo en la oficina provincial de extranjería. Esta solicitud se hace por parte del empleador, llenando todos los formatos y cumpliendo con los requisitos que se le exijan. Estos requisitos incluyen contar con los medios económicos, materiales y personales necesarios para hacer la contratación, no poseer ninguna deuda con la Agencia Tributaria y estar adscrito a la Seguridad Social.

    En el caso de que el empleador también sea extranjero, además de los requisitos mencionados, debe cumplir el no contar con ningún tipo de antecedente penal durante al menos los 5 años anteriores a la solicitud.

    La respuesta a esta solicitud se recibirá durante el primer trimestre luego del trámite, de no recibirse ninguna respuesta durante ese periodo, se puede considerar que la misma ha sido rechazada.

    Es necesario tomar en cuenta que el permiso que se otorgará tendrá una vigencia máxima de 1 año. El tiempo dependerá de la obtención del visado y de la alta en la seguridad social, ambos trámites se realizarán después de iniciar esta solicitud. También es posible que el permiso cuente con una limitación en cuanto a la zona geográfica en donde debe permanecer el empleado.

    Para esta solicitud se necesitará presentar el formato oficial lleno junto con el DNI o NIF del empleador, la acreditación de exención de ser el caso, original y copia del precontrato, justificante de recursos económicos y copia del pasaporte del empleado extranjero.

    Obtener la visa

    Luego de que el empleador haya hecho la solicitud del permiso de residencia temporal y trabajo, le toca al empleado dirigirse hasta al consulado de España más cercano y presentar dicha solicitud junto a una copia del precontrato previamente sellado por la oficina de extranjería.

    Se exigirá también como requisito el pasaporte vigente, certificado de antecedentes penales y certificado de no padecer ninguna enfermedad. También es probable que se realice una entrevista antes de ser aprobado el visado por un período mínimo de tres meses.

    Darse de alta en la seguridad social

    Después de obtener la visa, el empleado puede ingresar legalmente al territorio español y una vez allí, las condiciones del precontrato se harán oficiales por lo que es de suma importancia registrar el alta en la seguridad social para poder contar con los beneficios que todo trabajador tiene.

    Obtener el TIE

    Se deberá esperar a cumplir un mes luego de darse de alta en la seguridad social para poder realizar este paso. En la oficina de extranjería se debe hacer la solicitud oficial de la tarjeta de identidad de extranjero (TIE).

    Al finalizar todos estos pasos y obtener el permiso temporal de residencia y trabajo, podrá hacerse un contrato oficial con todas las condiciones y beneficios estipulados en ley, puesto a que el empleado para este momento contará con los papeles necesarios para permanecer en el país.

    ¿Qué pasa si el trabajador extranjero sin papeles ya reside en España?

    En ese caso la situación es bastante complicada, ya que aunque el empleador puede realizar la contratación, esta no será legal y se trata de una falta muy grave que se encuentra estipulada en los artículos 54 y 55 de la ley de extranjería, por lo que el empleador se arriesga a recibir una sanción si es atrapado.

    La sanción incluye una multa que varía entre los 10.000 y los 100.000 euros por cada empleado en condiciones de ilegalidad, además de la clausura del establecimiento por un periodo de esta un año y en el caso de que el empleador sea extranjero, es posible que se le solicite retirarse del país.

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