Libro III. Disposiciones finales, transitorias y derogatorias

Guatemalan migrant workers may access temporary worker programs abroad, individually or through lawful person recruitment entities, previously authorized and duly registered by the Ministry of Labor and Social Welfare of Guatemala with the collaboration of the Ministry of Foreign Affairs.

For such purpose, in addition to the provisions of Article 34 of the Labor Code, recruiting companies and persons must specify, in the respective forms approved by the Ministry of Labor and Social Welfare, the public or private entities that require the services abroad, as well as the class, category and type of work they will perform.

The Ministry of Labor and Social Welfare shall create the coordination system with the Ministry of Foreign Affairs, for the aid and assistance of Guatemalan migrant workers abroad.

The Ministry of Foreign Affairs shall promote diplomatic relations with the host country so as to allow verification of respect for labor rights and for what is established in the specific contracts.

The transition process from the General Directorate of Migration within the Ministry of the Interior to the Guatemalan Institute of Migration as a decentralized agency with exclusive jurisdiction does not affect existing employment contracts to the detriment of workers.

The Ministry of Labor and Social Welfare, through the corresponding dependency, is responsible for supervising that the rights of workers are not distorted, diminished or contravened in the transition process.

The trade unions of the Directorate General of Migration shall not be diminished in their capacities as a legal person, during the process of transition to the Guatemalan Institute of Migration.

The Collective Agreement on Labor concluded between the Trade Union of Workers of the General Directorate of Migration and the General Directorate of Migration remains in force upon the establishment of the Guatemalan Migration Institute.

All public employees of the General Directorate of Migration must enter the professional career system from the transition process and with a view to consolidating the administrative management of the functions of the Guatemalan Migration Institute.

Labor proceedings that are pending before the judicial authority, between the General Directorate of Migration and any public official or public employee, shall continue their course.

The rights to leaves, annual leave, pre- and post-natal rest periods, working hours, remuneration and other labor rights remain in force and must continue in their normal course.

The workers of the Guatemalan Migration Institute may continue contributing to the State civil pensions regime, complying with the voluntary incorporation procedure established in the specific law.

The Guatemalan Migration Institute, which is created through this Code, shall commence functions at the time the President of the Republic appoints the Director General, in accordance with the provisions of this Code.

Upon commencement of functions, all competencies, rights, attributions, functions, representations and delegations regulated in laws, regulations and other normative instruments in favor of or in charge of the Directorate General of Migration shall pass to be exercised by the Guatemalan Migration Institute. Likewise, all rights and obligations contained in agreements, contracts or other legal instruments, whether national or international.

The movable property and immovable property, equipment, furniture and other assets and liabilities of the Directorate General of Migration shall become part of the institutional patrimony of the Guatemalan Migration Institute.

On the formation of the National Migratory Authority and the appointment of the Director of the Guatemalan Institute of Migration.

The National Migratory Authority shall be formed sixty days after the entry into force of this Code, to begin with the issuance of regulations and the transition plan, which shall be issued within a time limit of six to twelve months.

The President of the Republic shall appoint the Director of the Guatemalan Institute of Migration, once he approves the transition plan presented by the National Migratory Authority.

The person who holds the position of Director General of Migration shall remain in office until the transition plan is presented and approved.

Once the transition plan submitted by the National Migration Authority to the President of the Republic is approved, the latter shall appoint the Director of the Guatemalan Migration Institute so that, jointly with the National Migration Authority, a representative of the Ministry of the Interior and a Vice Minister of the Ministry of Public Finance, they begin implementation of this plan within a maximum period of two years.

During this process, the Ministry of the Interior shall gradually abandon the functions it had been performing until the Guatemalan Migration Institute remains as the decentralized agency with exclusive jurisdiction.

Within the framework of its functions, the Comptroller General of Accounts shall accompany the transition process to guarantee effectiveness in the transfer and management of the public funds administered by the ceased directorate.

All archives shall be transferred in a technical manner and in accordance with the archival rules that the General Archive of Central America may establish for such purpose.

Prior to the transfer, the archival appraisal standards must be issued, which allow:

a)To define which documents must be transferred to the General Archive of Central America due to their historical or patrimonial value.

b)To define which documents must be preserved within the Department of Statistics and Archive due to their administrative value and value as information about individuals.

c)To define which documents must be sent to the national libraries, of the Ministry of Education or of the University of San Carlos of Guatemala due to their academic content.

d)To define the procedure for conservation, treatment and safekeeping of the information that will remain in the corresponding migration archive.

e)To establish the sequence for review of documents, the issuance of appraisals and the digitization thereof.

f)To define which material shall be disposable through recycling.

Likewise, all technical aspects necessary for the proper management of the information and its subsequent making available to the public in accordance with the Law on Access to Public Information must be determined.

The Ministry of Governance must transfer the funds assigned to it for the General Directorate of Migration to the Guatemalan Institute of Migration. Likewise, in the General Budget of Income and Expenditures of the State, an initial allocation must be provided to cover the initial installation, organization and operations expenses.

In the same General Budget of Income and Expenditures of the State, specific budget line items must be created for the State Institutions that provide protection services to returned Guatemalan migrant persons or foreign persons who need specialized protection according to the violation of their rights.

All physical, movable and immovable property of the General Directorate of Migration that is necessary for its operation is transferred to the Guatemalan Migration Institute. Said transfer shall be made in accordance with the provisions of the State Contracting Law and other applicable provisions. The consent of the Ministry of Public Finance must be obtained.

The migration posts duly established at the time of the entry into force of this Code shall continue to function normally in accordance with their established functions.

One hundred eighty days after the entry into force of this Code, a time limit of one hundred eighty days is granted to foreign migrant persons who are in an irregular situation to request their migratory regularization.

The documents accrediting persons with temporary or permanent resident status remain valid. The Director General of the Institute shall issue the call for the commencement of the change of denomination of the status or for the update in accordance with the regulations of this Code.

All applications, procedures and formalities existing before the entry into force of this Code shall be resolved in accordance with Decree Number 95-98 of the Congress of the Republic.

For the strengthening of the consular protection and assistance network for Guatemalans abroad, the Ministry of Foreign Affairs shall increase the consular offices, within a time limit of no more than five years, in those foreign cities where a considerable number of Guatemalan migrants reside.

To comply with the provisions of this article, the Ministry of Public Finance shall create, annually, the necessary budget line items within the State Income and Expenditure Budget, for the allocation of the necessary funds.

The general regulation and the other regulations provided for in the present Code shall be approved during the first year after the formation of the National Migration Authority.

The first paragraph is reformed and subparagraphs j) and k) of Article 36 of the Law of the Executive Branch, Decree Number 114-97 of the Congress of the Republic, are repealed, which shall read as follows:

“Article 36. Ministry of the Interior. It is the responsibility of the Ministry of the Interior to formulate policies, to observe and enforce the legal regime relating to the maintenance of peace and public order, the security of persons and their property, the guarantee of their rights, the execution of judicial orders and decisions and to countersign the appointments of the Ministers of State, including that of the person succeeding him in office; for such purpose it has the following functions:”

Article 8 of Decree Number 46-2007 of the Congress of the Republic, Law of the National Council for Attention to Migrants of Guatemala, is amended, adding subparagraph g) with the following text:

“g) A representative delegated by the Director General of the Guatemalan Institute of Migration.”

The following are hereby repealed from Decree Number 95-98 of the Congress of the Republic, Migration Law:

a)Title I, the Sole Chapter and Articles 1 and 2.

b)Title II, Chapters I and II and Articles 3 to 11.

c)Title III, Chapters I, II, III, IV, the First and Second Sections and Chapter V and Articles 12 to 45.

d)Title IV, the Sole Chapter and Articles 46 to 48.

e)Title V, Chapters I and II, Sections First to Fourth and Articles 49 to 69.

f)Title VI, Chapters I to III and Articles 70 to 86.

g)Title VII, Chapters I to III and Articles 87 to 96.

h)Title VIII, the Sole Chapter and Articles 97 and 98.

i)Title IX, Articles 99 to 102.

j)From Title X, Chapter II and Articles 109 to 115.

k)Title XI and Article 116.

l)Title XII, Articles 117 to 120.

All legal and regulatory provisions in national legislation that refer to the matters governed by this Code are hereby repealed. Likewise, the provisions contained in other normative bodies that attribute functions or duties to the General Directorate for Migration shall be understood to be performed by the Guatemalan Institute for Migration.

The headings of the articles of this Code have no interpretive value.

That regulated in numeral 2 of Article 61, and the last paragraph of Article 91 of the present Code, until the transition to the Guatemalan Migration Institute is completed, shall be functions in charge of the General Directorate of Migration, whose entry into force begins on the same day as its publication in the Official Gazette.

This Decree was approved with the favorable vote of more than two-thirds of the total number of deputies comprising the Congress of the Republic and shall enter into force sixty days after its publication in the Official Gazette, with the exception of this article, which enters into force on the same day of publication.