Globalization has given rise to new business models characterized by the intangible nature of establishments and the international mobility of human talent.

In Latin America and the Caribbean, the arrival of highly educated and technically skilled foreign workers has become increasingly common. These professionals find in the region favorable conditions to relocate and work under hybrid arrangements that combine in-person and remote modalities.

In this regard, Felipe Muñoz and Cynthia van der Werf of the Inter-American Development Bank (IDB) point out the following in their article Labor Mobility: An Opportunity for Latin America and the Caribbean:

The presence of foreign workers in Latin American and Caribbean countries is on the rise. While this trend poses certain challenges for host countries, it also brings with it multiple benefits. Labor mobility is not only good news for migrants and their countries of origin, but it also strengthens the economies of receiving nations.”

🔗 See article

For its part, the IDB, OECD, UNDP report (2023) “What is the situation of migrants in Latin America and the Caribbean? Mapping of social and economic integration”". The Inter-American Development Bank, Washington, D.C., mentions that:

“On average, foreign nationals account for 5% of the employed population in the Latin American countries analyzed in this report. In OECD countries, foreign nationals represent 12% of the employed population, meaning their participation is more than double compared to that of Latin American countries. The average employment rate in the region is very similar to that of the OECD, where the average employment rates of natives and foreign nationals are closely aligned (approximately two-thirds in both groups). The key difference between these two groups of countries is that, in Latin America and the Caribbean, immigrants are more likely to be employed than natives, whereas in OECD countries, on average, they are slightly less likely to be employed.”

🔗 See report

As can be observed, territories offering attractive conditions to balance quality of life and professional development are highly sought after by qualified professionals. However, it is important to bear in mind that relocating to a new jurisdiction entails a series of challenges, ranging from emotional and family considerations to matters such as immigration status, tax obligations, remuneration structures and currencies, among others - all of which ultimately prove decisive for the success of international mobility.

In this publication the focus will be on remuneration schemes, particularly on the legal feasibility of paying expatriates and managers in Colombia with foreign currencies.

Legal framework for the payment of salaries and internal obligations in Colombia

The analysis of this point requires first of all reference to Article 135 of the substantive Labor Code, which provides that:

“Article 135. Foreign currency stipulation

Where salaries are stipulated in foreign currency, the worker may demand payment in its equivalent amount in Colombian legal tender, at the official exchange rate applicable on the date on which payment is due.”

The article in question has been the subject of various analyses by the Labor Chamber of the Supreme Court of Justice, which has led to the issuance of several rulings considered precedent over time, endorsing to a lesser or greater degree the possibility of stipulating wages in foreign currency between employer and employee.

It is essential to harmonize labor legislation and jurisprudence with the provisions of the Colombian Foreign Exchange Regime, which is primarily set forth in External Resolution No. 1 of 2018, Regulatory Circular DCIP-83 of the Banco de la República, and Decree 1068 of 2015, which enacts the Single Regulatory Decree for the Finance and Public Credit Sector.

Specifically, with regard to the possibility of extinguishing domestic obligations in foreign currency, the exchange regulation provides the following:

Article 86 of Resolution No. 1 provides that:

“Article 86. Obligations in Foreign Currency. Obligations stipulated in foreign currency that do not correspond to foreign exchange transactions shall be paid in Colombian legal tender at the representative market exchange rate in effect on the date on which they were incurred, unless the parties have agreed on a different reference date or exchange rate.

In turn, Article 2.17.1.3 of Decree 1068 provides:

“Article 2.17.1.3. Domestic Transactions.

Unless expressly authorized otherwise, no contract, agreement, or transaction entered into between residents shall be deemed a foreign exchange transaction. Consequently, the obligations arising from such contracts, agreements, or transactions must be fulfilled in Colombian legal tender.”

It should be noted that the referenced provision establishes a limitation on the settlement of domestic obligations in foreign currency for transactions entered into between residents that are not deemed foreign exchange transactions. Therefore, following the line of reasoning developed thus far, it becomes essential to understand the meaning of foreign exchange residence and foreign exchange transactions.

Exchange operations

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“The following are considered foreign exchange transactions:

• Acts, contracts, and transactions involving the acquisition, ownership, or disposal of assets or rights abroad by residents, and acts, contracts, and transactions involving the acquisition, ownership, or disposal of assets or rights in Colombia by non-residents.
• Acts, contracts, and transactions under which a resident becomes or may become a creditor or debtor of a non-resident, and acts involving the disposal of the rights or obligations arising therefrom.
• The holding, acquisition, or disposal of assets in foreign currency by residents or, in the case of non-residents, the holding, acquisition, or disposal of assets in Colombian legal tender.
• The entry into or exit from the country of foreign currency or Colombian legal tender and securities representing same.
• Acts by virtue of which obligations between residents and non-residents are extinguished.”

Foreign exchange transactions find their legal basis in the General Framework Law on International Exchange, established under Law 9 of 1991.

Legal feasibility of paying salaries in foreign currency

Based on the regulatory framework outlined above, it is possible to conclude that the employer and the employee may agree on the salary in foreign currency. However, for purposes of conversion to Colombian pesos, the applicable reference will be the Representative Market Exchange Rate (TRM) in effect on the date the salary is paid.

Notwithstanding the foregoing, it will be necessary to establish the employee's exchange resident or non-resident status for each period in order to determine the applicable treatment.

Finally, it is pertinent at this stage to recall the position expressed by the Internal Working Group on Labor-Related Inquiries of the Ministry of Labor, through an opinion identified under File No.: 02EE2019410600000046019:

“In light of the above, it follows that, by virtue of the conclusion of an employment contract, the parties may stipulate the payment of salary in foreign currency, using the Representative Market Exchange Rate (TRM) as the reference for monetary conversion on the date the salary is due. Thus, if the employment contract establishes that payment will be made in foreign currency, fluctuations in the TRM may not be deemed to constitute a deterioration of the worker’s salary and employment conditions, since, as stated in Article 55 of the Colombian Substantive Labor Code, employment contracts must be executed in good faith; therefore, the terms set forth in the contract are binding. Nevertheless, the parties may agree on a fixed exchange rate, provided that such rate is not lower than the TRM, which may be demanded by the worker in the event that the fixed rate stipulated in the contract is lower than the applicable TRM.”

In summary, for payments in foreign currency, the labor legislation and the current exchange rate regime in Colombia should be assessed in a holistic manner, as should each specific case.

Clearing accounts as an alternative to payment in foreign currency

Without delving into the subject of clearing accounts, as this is not the focus of this publication, it is appropriate to quote Article 37 of Resolution 1 of the Banco de la República, which establishes that:

(…)

Residents, if they so agree, shall use the clearing accounts to circulate and receive foreign currency corresponding to the settlement of obligations arising from domestic transactions for which payment in foreign currency is not expressly authorized in this resolution.”

From the excerpt of the aforementioned provision, it is clear that there is legal feasibility for obligations agreed upon between foreign exchange residents, which are not regarded as foreign exchange operations, to be settled through payment in foreign currency.

This option should be assessed comprehensively in each specific case, given that holders of clearing accounts are required to implement the corresponding internal controls for the management of this type of accounts, comply with monthly reporting obligations to the Central Bank of Colombia (Banco de la República), and submit quarterly foreign exchange information reports to the Colombian Tax and Customs Authority - DIAN.

What exchange rate contingencies can be configured for the payment of internal transactions in foreign currency?

The Foreign Exchange Penalty System under the jurisdiction of the DIAN is established in Decree Law 2245 of 2011, which defines foreign exchange violations as follows:

“Article 2. Foreign exchange violations

A foreign exchange violation is an administrative offense against the constitutive provisions of the foreign exchange regime in force at the time of the violation, which is punishable by a penalty the purpose of which is to ensure compliance with those provisions and protect the economic public order.”

With regard to the termination of domestic foreign exchange obligations, Decree-Law No. 2245 provides as follows:

“26. For payment in foreign currency of any contract, agreement, or transaction between residents in the country without such payment being authorized by the exchange regime, a fine shall be imposed on each of the parties involved equal to one hundred percent (100%) of the amount of the respective transaction.”

It should be noted that the penalty in question will apply to both ends of the relationship, i.e. both the payer and the recipient of the foreign currency payment.

Conclusions

• The mobility of skilled workers is on the rise in Latin America and the Caribbean.
• Article 135 of the Colombian Substantive Labor Code, as well as the case law and the legal doctrine, recognize the possibility of stipulating salaries in foreign currency.
• As a general rule, the Foreign Exchange Regime provides that transactions between residents, which are not considered foreign exchange operations, must be paid in Colombian legal tender.
• It is essential to determine the foreign exchange residence status in each specific case in order to establish the applicable treatment for each transaction.
• Through compensation accounts, the foreign exchange regulations allow for the settlement of domestic transactions by means of payment in foreign currency.
• The foreign exchange sanctions regime establishes a penalty equal to 100% of the value of the transaction improperly settled in foreign currency, which will be imposed on each party involved.

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