Highlights:
- Employers who wish to employ individuals that are not nationals from the European Union (EU) or the European Free Trade Association (EFTA) must file an application for a work permit.
- Nationals from a non-EU/non-EFTA state have no legal right to be granted a permit.
- Non-compliance exposes the employer and the individual to prosecution.
- The individual may also need to obtain a visa prior to entering into the country.
Introduction
Switzerland is located in the centre of Europe and it is part of the Schengen Area, but it is not part of the European Union (EU). The country is also going its own way when it comes to regulation of immigration. It is a challenge for both companies and individuals to under-stand what needs to be done to ensure immigration compliance.
In this article, we will highlight the ten most important points to consider when employers want to recruit people from states that are not part of the EU or of the European Free Trade Association (EFTA) to work in Switzerland.
1. No Work Without a Permit
Anyone working in Switzerland without a work permit is liable to prosecution (and faces imprisonment of up to one year or a fine). The same applies to employers who employ a foreign person without a work permit.
Switzerland has a dual system for work permits: Third-country nationals (i.e., nationals from a non-EU/non-EFTA state) are only granted a work permit under strict conditions. The Federal Act on Foreign Nationals and Integration (FNIA) lists the admission criteria. In particular, the admission of non-EU/non-EFTA citizens is subject to quotas. In contrast, EU/EFTA nationals benefit from the Agreement on the Free Movement of Persons (AFMP) between the EU and Switzerland. Under normal circumstances, such persons are entitled to a work permit. EU/EFTA states are Austria, Belgium, Bulgaria, Croatia, Czech Republic, Cyprus, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, Spain and Sweden.
As of 1 January 2021, the AFMP between Switzerland and the EU will no longer apply to the United Kingdom (UK). As of this date, UK nationals are no longer EU/EFTA nationals, but third-country nationals. For new arrivals from the UK, this means that they must fulfil the admission requirements of the FNIA, at least until the UK and Switzerland enter into a bilateral agreement.
2. Admission in the Interest of Switzerland
The admission of third-country nationals must be in the interest of Switzerland as a whole and of its economy (Art. 18 of the FNIA). The labour market situation, the sustainable economic development, and the integration ability of the third-country nationals must all be taken into account.
3. Priority of Domestic Employees and Persons from EU/EFTA States
Domestic employees and persons from EU/EFTA states have priority (Art. 21 of the FNIA). Domestic employees are defined as: Swiss nationals, persons with a settlement permit (C permit), persons with a work permit (B permit), temporarily admitted persons and persons who have been granted temporary protection and who have a permit to take up gainful employment.
4. Personal Qualifications
Only qualified employees such as managers and specialists are admitted (Art. 23 of the FNIA). First and foremost, a university or technical college degree (master’s degree) and several years of professional experience are required. In some cases, special technical training may also be sufficient.
In addition, integration criteria such as social adaptability, language skills and age are taken into account.
The personal qualifications are verified by means of documentation. Together with the application for a work permit (including translation, if necessary), the employer must submit the foreign employee's curriculum vitae, diplomas, and certificates of employment.
5. Wages, Social Security Contributions, and Working Conditions
Wages, social security contributions, and working conditions must be in line with local and industry standards (Art. 22 of the FNIA). The employer must provide the labour market authority with information about the duration of the employment, the conditions of employment, and the salary (see No. 8 for a detailed description of the approval process). The employment contract must be up-to-date and complete in terms of content, and must comply with the conditions customary in the locality and the industry. This protects foreign workers from abuse and domestic workers from wage dumping.
6. Types of Permits
Two types of permits are available for newly arriving workers from third countries. They are distinguished by the letters "L" and "B":
(1) The "L" short stay permit is tailored for persons from third countries who are gainfully employed in Switzerland for up to one year. Exceptionally, it can be extended up to 24 months. In this case, the employer must remain the same.
(2) The "B" residence permit for third-country nationals is limited to one year. However, it is usually renewed annually, unless there are reasons not to do so, such as criminal offenses. The permit is linked to the employer and the holder must normally be resident in the canton that issued the permit.
7. Quota
A work permit can only be issued if the annual quota has not been fully utilized (Art. 20 of the FNIA). As mentioned previously, admissions from non-EU/non-EFTA states are limited. The Federal Council sets the maximum numbers annually in the Ordinance on Admission, Residence and Gainful Employment (OASA). Experience shows that the number of applications submitted usually exceeds the number of permits available. However, due to the on-going Covid-19 pandemic, demand is currently weaker. In 2020, the quota was not fully utilized.
For 2021, the Federal Council granted a quota of 8,500 permits, the same number as the previous year: 4,500 residence permits (B) and 4,000 short-term residence permits (L). In addition, for the first time the Federal Council has set a separate quota for employed UK nationals: 2,100 residence permits (B) and 1,400 short-stay permits (L).
8. Procedure
The employee does not have to contact the authorities. It is the employer who is responsible for obtaining the work permit for the employee. For this the employer must submit an application to the competent cantonal labour market or migration authority. These authorities provide detailed information about the procedure and the application documents to be submitted.
For third-country nationals who are subject to the visa requirement, an entry application must also be submitted. This must be submitted to the responsible Swiss representation in or for the employee's country of residence.
The cantonal employment office examines the application with regard to the FNIA requirements and makes a preliminary decision. This preliminary decision is rarely deviated from. The cantonal authority has a wide margin of discretion. Thus, it is not surprising that over the course of time, each of the 26 cantons has developed its own practice.
The preliminary decision is submitted to the State Secretariat for Migration (SEM) for approval. Once this is received, the cantonal migration office issues the work permit.
In the case of persons requiring a visa, following approval by the SEM, the cantonal migration authority transmits the visa authorization electronically to the Swiss representation abroad. The employee can pick up their visa there.
As soon as the employee has entered Switzerland, but no later than 14 days after entry, they must register with the communal Residents' Registration Office.
9. Job Notification Requirements
The employer must prove that, despite serious search efforts, no prioritized employee could be recruited. Vacancies must always be reported to the regional employment centers (RAV). An advertisement must also be entered in the European Employment System (EURES). In addition, the employer must be able to show that digital recruitment via subject-specific channels such as LinkedIn, specialised journals, and job portals has been unsuccessful.
In the occupational groups, fields of activity or economic regions in which unemployment reaches or exceeds 5%, the employer must report vacancies to the public employment service (Art. 21a of the FNIA). The number of affected sectors has increased sharply since the outbreak of the Covid-19 pandemic in March 2020.
10. Exceptions
Special regulations apply, for example, for the transfer of executives or specialists in inter-national companies, for internships, training and further education, and for doctoral and post-doctoral students (Art. 30 of the FNIA). In addition, third-country nationals may be granted a work permit if they hold a degree from a recognized Swiss institution of higher education (university or university of applied sciences ("Fachhochschule")) and their gainful employment is of high scientific or economic interest. The requirement of priority does not apply in this case.
Conclusion
The key takeaways are: Third-country nationals such as UK and USA nationals have no right to a work permit in Switzerland. The number admitted is limited and subject to strict conditions. Only employees with a higher education such as a university degree have a chance of obtaining a work permit. An employer can only employ third-country nationals in Switzerland if no one can be found within Switzerland or from the EU/EFTA states. Wage and working conditions must correspond to those of domestic employees.
Authors: Urs Haegi, Partner, and Jasmin Ulli, Junior Lawyer, VISCHER AG
ADDITIONAL RESOURCES
- A booklet summarizing the most important information is available on the website of the State Secretariat for Migration (SEM): https://www.sem.admin.ch/sem/en/home/themen/arbeit/nicht-eu_efta-angehoerige.html
- On the same website you can also find more information about the visa obligation:
https://www.sem.admin.ch/sem/en/home/themen/einreise/merkblatt_einreise.html
- Another source for information about working in Switzerland is:
/https://www.ch.ch/en/employment-law/
- Check out the ACC Resource Library
- Join the ACC Employment and Labor Law Network (ACC members only)
