On 22 December last, Law 28/2022, of 21 December, on the promotion of the start-up ecosystem, also known as the Start-up Law, was published in the Official State Gazette. Its purpose is to create a regulatory framework to support the creation and growth of start-ups in Spain.
In this context, the Start-ups Law promotes and develops a series of economic and social measures that favour the establishment in Spain of both entrepreneurs and employees known as "digital nomads".
It is well known that, nowadays, it is increasingly common for employees in start-ups to perform their work remotely, given that nowadays it is relatively easy to have a space with an internet connection that allows the same services to be provided remotely that would be carried out in person.
Thus, this Start-ups Law is a novelty for those international employees who, due to the advantages offered by teleworking, wish to provide their services from Spain for a company located outside the national territory.
Specifically, this Law introduces in its fifth final provision, a new type of visa and residence and work authorisation (for international teleworking) within those regulated by Law 14/2013, of 27 September, on support for entrepreneurs and their internationalisation (also known as the Entrepreneurs Law).
The Start-ups Law defines a person in an international teleworking residence situation as a national of a third country who is authorised to stay in Spain to carry out through the exclusive use of computer, telematic or telecommunication means an:
employment activity: in this case, the employees may only work for companies located outside the national territory; or
professional activity: on the contrary, they may also work for companies located in Spain, as long as the percentage of said work does not exceed 20% of their total professional activity.
Apart from the general requirements regulated by the Entrepreneurs Law, the Startups Law creates a series of specific requirements for the stay or residence of international teleworkers, which are as follows::
proof that the company for which the employee provides services has been carrying out a real and continuous activity for at least one year;
proof that the employment relationship can be exercised at a distance;
proof of an employment relationship between the employee and the company for at least the last 3 months prior to the submission of the application, as well as the company's permission for the employee to work remotely.
The Start-ups Law allows entry and residence in Spain for a maximum period of one year by means of a new type of visa. In addition, foreigners who are in Spain on a regular basis may apply for a residence permit for international teleworking, as long as the conditions that generated the right are maintained, for a maximum length of three years, and may be renewed for periods of two years.
Finally, this Law introduces another important novelty by considering the passport as a sufficient document to register with the Social Security during the first six months of residence or stay in those cases in which the foreigner is not in possession of a foreigner's identification number (NIE), without prejudice to the subsequent application for this.
Authored by Jesús García and Laura Cerezo.