Swiss Immigration: Practice tightening following quota reduction

in Legal, Tax, 09.09.2015

In late 2014 the Swiss federal council announced that the 2015 work permit quota would be reduced considerably. Work permits for non EU 25/EFTA nationals to be hired in Switzerland as well as permits for all foreign employees to work in Switzerland on assignment are affected (certain permit types decreased by more than 50%)[1].

As expected (cf. article Swiss Immigration Outlook 2015) this decision led to a severe tightening in Switzerland’s immigration practice.

In the following you will find an overview of the most important changes in immigration practice that took place in the first half of 2015 as well as recommendations on how to best cope with these new challenges.

Most significant changes in immigration practice over the last six months

Following the Swiss federal council’s announcement to reduce the quota, several cantons have considerably tightened their admittance practice so as not to “waste” available work permits.

Here is a selection of important changes that have taken place since:

  • Stricter criteria for intra-group transfers of qualified specialists of non-EU 25/EFTA nationality (local hires in Switzerland)
    In the past, provided that the employee in question qualified as a subject-matter expert and had worked for another group company for at least 12 months, a simplified application procedure applied in the sense that it was not necessary to prove that no equally qualified candidates could be recruited on the Swiss or European labor markets.
    According to the recently introduced practice in several Swiss cantons (Zurich, among others), this is no longer the case. Rather, when applying for a work permit for a non-EU25/EFTA national, a Swiss employer is obliged to provide comprehensive evidence of vain recruitment efforts in Switzerland and the European Union by means of advertisements of the open position in newspapers and on online job portals etc., which provides for time-consuming administrative efforts.
  • Early exhaustion of permits for EU 25/EFTA nationals
    In the first three quarters of 2015, quotas for EU25/EFTA nationals (assigned employees) were exhausted after only 3 to 4 weeks. Contrary to former years, many cantonal authorities put such pending permit applications ho on hold or refuse them. As a consequence, the applicant has to await the new quota at the beginning of the following quarter or even has to file a new permit application in some cantons.
  • Tightened admittance practice regarding short term permits valid a maximum of 120 days or 4 consecutive months
    Permits valid for a maximum of 120 days or 4 consecutive months in a period of 12 months have basically remained unaffected by the decision on the reduction of the work permit quota, as they remain exempt from any quota until further notice from the authorities. However, the reduced number of permits subject to a quota has led to an increased demand for 120 day permits. Consequently, Swiss authorities have tightened their admittance practice and refusals have become more frequent. This is especially true where the same company asks for a larger number of permits at the same time.
  • Requirement to file A1 form/Certificate of Coverage (CoC) for assigned employees
    Some cantons now request that whenever a work permit extension/renewal for an assigned employee is being filed, the form A1 or the Certificate of Coverage, respectively, stating that the employee in question remains subject to the social security system of the home country in question, is filed again as part of the application file.
  • Work permits for internships and (intra-group-) know-how exchange limited to a maximum of 4 months per year (all nationalities)
    Over the last few months several cantons decided to save up quota for highly qualified and experienced professionals for the time being and until further notice. Consequently, interns and other workers coming to Switzerland for training purposes (e.g. intra-group know-how exchange) may only be granted a non-quota work and residence permit valid for a maximum of 4 months or 120 days.

How to best prepare for the new challenges

  • Early initiation of work permit applications and of form A1 / CoC application: Generally, the considerable reduction of work permits has led to more refusals of work permit applications and has made early preparation of work permit applications inevitable. This is especially true for local hires of non EU25/EFTA nationals (including intra-group-transfers, cf. above) where recruitment efforts on local labor markets need to be conducted, as drawing up a job ad and publishing the vacancy on the official channels (newspapers, online job portals etc.) are usually burdensome and time consuming.In case of assigned employees, bear in mind that in several cantons the A1/CoC must be filed as part of every work permit extension application. Thus, the renewal of the A1 or CoC must be initiated well in advance to ensure it is in place by the time the application for extension is being filed (i.e. approx. 4 to 6 weeks before expiry of the “old” work permit). Be aware that the processing of an A1/CoC may take several months, especially in case an assignment is to be extended beyond 4 years.
  • Early and tailored planning of project staffing: It has become more crucial than ever before that projects involving foreign workers are planned as early as possible. Having a couple of employees join the project for a shorter period (max. 120 days per employee) instead of just one or two may be favorable in view of the shortage of permits subject to a quota. However, it is recommended to avoid applying for a larger number of permits at the same time, because this may lead to applications being rejected (cf. remark above). Rather, whenever possible have the foreign workers join the project in a staggered manner.
  • Pay attention to comprehensive application supporting letters: Besides, it is crucial that the application letter and supporting documents are even more comprehensive and carefully drafted than normal, as the authorities are now assessing an applicant’s qualifications in more detail and are likely to challenge any inconsistencies.

Supplementary remark: update on the Stop Mass Immigration Initiative

In February 2014 the Swiss voters adopted the so called “Stop Mass Immigration Initiative” aiming at controlling and restricting immigration by implementing numerical limits to foreign workers.

In early 2015 a draft legislation and action plan for the initiative’s implementation was introduced. According to the proposed immigration system, permits for EU 25 nationals who are locally employed in Switzerland will also be subject to limits. In addition, Swiss residents will be given priority not only over third country nationals but also over EU 25 nationals hired locally. Also cross-border commuters, family members, non-working persons etc. will be subject to the quantitative limits. However, no fixed target for reducing immigration has been included in the draft legislation so far.

As the admission of EU nationals is regulated in the Agreement on the free movement of persons between Switzerland and the European Union (“AFMP”), this agreement will have to be amended in line with the newly proposed immigration provisions. The agreement of the EU and its member states is required for this purpose. Negotiations between the Swiss Federal Council and the EU are planned for autumn 2015.

For the time being, the current Swiss immigration legislation remains in full force.

Summary and outlook

In summary, the first half of the 2015 immigration year has led to considerable legal uncertainty due to repeated, unpredictable and fast changes in admittance practice following Switzerland’s decision to reduce work permit quotas. This situation makes an ongoing monitoring of further changes in the relevant legal fields and corresponding authority practice crucial to avoid delays in project planning and staffing

The expected amendments to the Swiss immigration system following the Stop Mass Immigration Initiative have been confirmed by the Swiss Federal Council. The proposed Swiss new immigration system foresees severe aggravation of admittance of non-Swiss nationals. However, as the EU’s approval required for some of the proposed amendments is currently still outstanding, further developments are uncertain.

Further relevant developments will be published on this blog.

 

[1] The following permit types are affected by the decision to reduce quota: Non-EU/EFTA quota for short-term work permits (L permits) and for long-term work permits (B permits) for both, assigned and locally hired employees, as well as quota for EU/EFTA assignees (L permits and B permits) Other work permit types, such as e.g.the so-called 120-day-permits as well as L and B permits for EU/EFTA local hires, on the other hand, remain unaffected by the decision on the reduction of the work permit quota as they will continue not to be subject to quota until further notification from the authorities.

 

 

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