The Background Check Requirement
According to Section 70 of the Immigration Law (Law No. 8764 of 2009) foreign nationals who file an application to remain in the country under any of the categories as described in the law, must have not been convicted of a crime within ten years prior to requesting immigration status. What does this mean? Well if you file an application for residency on March 1st, 2016, you must not have been convicted of a crime between March 1st 2006 and March 1st 2016. Therefore, if you were convicted of a crime in February 2006, you will be eligible to obtain residency (or any other immigration status) in Costa Rica. In other words, for immigration purposes in Costa Rica, criminal convictions have a Statute of Limitations of 10 years. There is only one exception: people convicted of sexual abuse against minors, who instead have a 50 year Statute of Limitations.
The burden of proof is on the applicant to demonstrate that he/she has not been convicted of crime within the past 10 years. How do you prove that? Well, you will need to produce a background check from the country you are from, or from the country you last resided in three years prior to moving to Costa Rica. For instance, if you are from Germany and lived in Germany all of your life, then you will need to produce a background check from Germany. On the other hand, if you are from Germany, but you lived in France for the past three years, you will need to produce a background check from France.
The primary purpose of this article is to review the background checks from the United States for one particular reason: people from the US like to produce a local background check instead of background checks from the FBI.
Let me share with you a story. In our business, we like to be accommodating to our clients. The immigration regulations do not require to produce any particular type of background check, therefore, it is possible to produce a local background check, or a federal background check. For some people, it is easier or cheaper to produce a local background check instead of one from the FBI. So, we use to leave it up to the client to produce whatever document was convenient and did not push any particular type of background check.
Later on we learned that the Immigration Department in Costa Rica (DGME) will do background checks by default for US Nationals who only provided a local background check and not one from the FBI. This practice started back in 2012. The DGME realized that some US Nationals would try to hide crimes committed in one state by producing a background check from another state. As a result, the DGME and the US Consulate in Costa Rica made an agreement under which the DGME will send a request of information to the US Consulate for individuals who will produce a local background check. This procedure will not be applicable for people who produced a background check from the FBI. The procedure can take three to six months between the time the DGME decides that the request of information is required and the time that they received the results from the Consulate. It is usually the DGME that is dragging its feet.
We then decided to use more background checks from the FBI for our clients. Background checks from the FBI had been a little more difficult to obtain than the ones from the local police station, primarily because it is required to produce a set of fingerprints, and also because the FBI usually takes several weeks to issue the document (generally between eight and twelve weeks) if you send fingerprints on ink cards. To help our clients, we took on the challenge of obtaining the background checks from the FBI. We would take our clients to the police department in San Jose in order to get the fingerprints on the ink cards, and we would mail the cards, with the power of attorney to the FBI. Results would arrive weeks later and then we proceeded to request the apostils required for the document to be valid in Costa Rica. Our goal to produce a background check from the FBI was to reduce the processing times for the residency applications. We were able to obtain approvals within six and eight months instead of 12 or 16 months. Nevertheless, some clients preferred to avoid doing all of this and would produce a local or state background check, for which we provide the corresponding disclaimer.
We learned the hard way.
One particular client told us that he did not have a criminal record, so he just wanted to produce a local background check. We filed his application for residency under the pensionado category which was supposed to take between nine and twelve months due to the delay doing the inquiry by the DGME to the US Consulate. But in this case, it took a lot longer. On the sixth month, we followed up on his case and it was not ready. We checked again on the ninth month, and still nothing. More than twelve months had passed and the DGME only said that they were still reviewing the file (you know how the story goes with the DGME). All during this time, I had the nine hundred pound gorilla client on my back calling me and sending me messages every other day telling me how incompetent I was. I felt very bad about this case primarily because I felt that I let this client down, and that I could not comply with what I had promised.
More than a year later, I received a notice from the DGME requesting a federal background check. When you receive such notice, the DGME does not tell you why, they just do the request. I talked to the client about it and he told me that he did not understand why he was being requested the background check from the FBI, he swore that he did not have a criminal record. Pursuant to that conversation, I decided to file a complaint to with the Supreme Court alleging that the Immigration Law did not specifically required a background check from the FBI (we did this at no expense to the client because I wanted to go above and beyond in order to repair the case). The DGME replied to the Supreme Court indicating that they had reason to believe that the subject had a record in another state. We did not win the case and were forced to produce the background check. So, we proceeded to fly the client to San Jose, put them in a hotel, brought them in for fingerprinting, requested the background check, did the apostil, and obtained the translation, all of this at no expense to the client. During this time, the client kept complaining on a regular basis.
But, and this is a big but, when we got the results, bingo! It turned out that indeed he had a conviction over ten years old that he did not tell us about. At the end, we got the residency for this client, and he was begrudgingly happy. Having a conviction over ten years old is not a big deal, we are able to use the exception of the 10 year statute of limitations, and we would have been able to do so for this client if we had known from the beginning.
As a result of this case, we decided to only do background checks from the FBI. It is not negotiable anymore. One the one hand, we want to know what are we getting into, and second, we want to be able to complete the residency in a timely fashion with no questions asked by the DGME. Even in cases where the applicant has had a conviction more than 10 years ago, we want the DGME to see full disclosure from our part and not to think that we are trying to hide something.
This turn of events prompted two changes in our business practice. We will only work with FBI background checks and no longer accept local background checks anymore. We have also improved our FBI Background Check services. Previously, clients needed to come to San Jose and spend the day getting fingerprinted so we could send the fingerprint cards by mail to the FBI in Washington DC, which consumed a significant amount of time. So we made an essential investment and obtained the appropriate technology to do portable fingerprint scans in Costa Rica. This program allows us to obtain a background check within two days. Needless to say, since the document is for use in Costa Rica (or any other country) we also obtain the apostil, providing a full service to our clients.
It is very exciting to be able to provide this superior service. We have been able to obtain dozens of background checks for clients all over the country. This technology and equipment allows us to go anywhere to get the fingerprint scans. We have done it for clients in Playas del Coco, in Dominical, Atenas and obviously the Central Valley. Our clients have been very happy with this service. A lot of people have told us that they have avoided getting residency because of the difficulty of obtaining documents. Electronic fingerprinting allows us to get the results from the FBI in two days and has really put us ahead of the curve.
There are a few points to this story:
- We were able to review the background check requirements for obtaining residency. When it comes to people from the US, you should always do the background check from the FBI. When it comes to people from Canada, you should always do the background check from the RCMP.
- I was able to grow as an attorney as far as being able to identify a problem and being able to fix it.
- I was able to grow as an entrepreneur as far as being able to improve a service for our clients and to grow another segment of our business. Currently, we are able to obtain a background check from the FBI in two days, and the apostille in three to four weeks due to processing times and mailing time. Our fee for this full service is $250 USD per document. With our new documents business, we are able to obtain documents from all over the world with the exception of Cuba, Iran and North Korea. The fees for documents from other countries will vary depending on the country.
I hope this information to be helpful. Please feel free to reply with any questions or comments.