Will Auxiliares de Conversación be able to modify to residence?
- Melcart Abogados
- Jan 15
- 4 min read
Short Answer:
Current auxiliares de conversación can modify from stay to residence and employment or residence and self-employment provided they apply prior to 20/05/2025.
As of 20/05/2025, modification from stay to residence and employment or residence and self-employment for auxiliares de conversación will not be an option.
Long Answer:
The situation until now.
Until now, the Spanish Administration has issued auxiliares de conversación stay permits for the purposes of studies, formation, or internship (autorizaciones de estancia por estudios, formación o prácticas), colloquially referred to as "student visas."
Once an auxiliar de conversación completed their stint successfully, they could, pursuant to article 199 of Royal Decree 557/2011, apply to modify their status from stayer (non-migrant resident) to resident (migrant resident), provided the auxiliar de conversación had a qualifying job offer or a viable business plan. Critically, these article 199 modifications exempted applicants from needing to prove —in the case of employment-based applications— that no local was available for the position and from needing to obtain a visa.
Article 199 modifications thus became a practical, uncomplicated route to temporary residence, long-term or long-term EU residence, and citizenship in Spain for many.
What's changed?
In short, a lot has changed.
While Royal Decree 557/2011 allowed holders of all stay permits regulated in article 37.1.a), b), and d), including auxiliares de conversación, Royal Decree 1155/2024 has established more granular types of stay permits.
In contrast, Royal Decree 1155/2024 has established more granular activities for which a foreigner can obtain authorization to remain in Spain. One such more granular provision is participation in functions as foreign auxiliares de conversación at Spanish educational institutions (art. 52.1.e.1 RD 1155/2024).
Article 199.1 of Royal Decree 1155/2024 limits modification from the status of long-term stay for studies or formative activities to the status of residence and work to holders of stay permits issued for the activities foreseen in letters a) and b), and numbers 4 and 5 of letter e), of the regulation, excluding auxiliares de conversación (art. 52.e.1)!
Who will be affected?
In theory...
Strictly speaking, the change should only affect persons holding stay permits issued pursuant to Royal Decree 1155/2024.
Recall that, in our post, "What will happen to applications filed before 20 May," we explained the general principle of law, tempus regit actum, that is, the non-retroactivity of jural norms.
As a result of this principle and, perhaps more importantly, due to the principle of jural security, and given that absolutely no one prior to 20/05/2025 will have been issued a stay permit under article 52.1.e. of the new regulation, it is our opinion that the Administration would be wrong to exclude current auxiliares de conversación from modifications, whenever these are requested.
However...
In practice...
Any auxiliar de conversación whose stay permit is issued pursuant to Royal Decree 1155/2024, as well as any auxiliar de conversación who applies for modification as of 20/05/2025 will be barred by Offices of Immigration from modifying from stay to residence.
Applications in that vein will likely be dismissed without even entering into considerations on the non-retroactivity of article 52.1.e. of the new regulation; and, if not dismissed, such applications will likely be denied.
While we believe that the retroactive application of the new, more restrictive regulations should be forbidden by the principles of non-retroactivity and jural security, we may only know if our opinion is correct after lengthy and expensive judicial proceedings.
How can I avoid exclusion from modification by Royal Decree 1155/2024?
As we implied in our post, "What will happen to applications filed before 20 May," the best way to avoid exclusion from modification by the new regulation is to apply for modification before 20/05/2025.
Article 199 of the current regulation, Royal Decree 557/2011, which does not exclude auxiliares de conversación, allows interested parties to request modification from the status of stay for studies, formation, or internships to the situation of residence and employment (modificación de las situaciones de estancia por estudios, formación, o prácticas a la situación de residencia y trabajo) as early as sixty calendar days before expiration and as late as ninety calendar days after expiration of the stay permit subject to modification.
There are complex rules surrounding computing terminal dates, but, considering the two most common cases, you may be able to file:
Between 31/03/2025 and 19/05/2025, if you have a stay permit which expires on 30/05/2025 or
Between 01/05/2025 and 19/05/2025, if you have a stay permit which expires on 30/06/2025.
The terminal dates, both initial and final, may vary depending on your locality. Consult a lawyer to determine the exact termini for your application window.
Provided your application is filed validly and within the applicable filing window, your application will be processed and resolved pursuant to Royal Decree 557/2011. Needless to say, a subsequent filing to elect processing and resolution pursuant to the new regulation is, in these cases, self-destructive.
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