Long-term transfers

Categories

What are the main work and business permit categories used by companies to transfer skilled staff?

Companies established outside the European Union can transfer staff under the following categories:

  • intra-corporate transfers (ICTs) under the EU ICT Directive (2014/66/EU), transposed into national legislation by Article 47 of the Law of 29 August 2008, as amended; and
  • posting of workers (salaried workers posted under the EU Posting of Workers Directive (96/71/EC), pursuant to Article 48 of the Law of 29 August 2008).
Procedures

What are the procedures for obtaining these permissions? At what stage can work begin?

As regards ICT permits, the national legislation has strictly transposed the EU ICT Directive.

Stricter conditions apply to workers posted by a company which was established outside the European Economic Community or Switzerland (in the sense of the EU Posting of Workers Directive). Such workers must have concluded an indefinite period employment contract with their employer at least six months prior to the commencement of the assignment. The posting must take place under a contract for the provision of services concluded between the company making the posting and the recipient of services in Luxembourg.

Period of stay

What are the general maximum (and minimum) periods of stay granted under the main categories for company transfers?

The maximum duration of an ICT is three years for managers and specialists and one year for trainee employees. Once the maximum duration of a transfer has passed, six months must elapse before another application concerning the same third-country national can be made.

Residence permits for posted workers are valid only for the duration of the posting (ie, the duration of the provision of services).

Processing time

How long does it typically take to process the main categories?

The maximum timeframe is 90 days from the date on which a complete application is lodged. This timeframe is suspended if the authority requires additional documents or information until receipt of such information. A failure to make a decision within the abovementioned timeframe will be considered a rejection.

Staff benefits

Is it necessary to obtain any benefits or facilities for staff to secure a work permit?

Any authorisation of stay for a period exceeding 90 days in any 180-day period implies an obligation to have a place of residence in Luxembourg.

Third-country nationals seconded to Luxembourg must have health insurance which covers their health needs. Where the posting country has entered into a bilateral agreement with Luxembourg relating to health insurance or a social security agreement covers health insurance, third-country nationals and family members are, for the entire posting period, entitled to healthcare in Luxembourg at the expense of the posting country. Conversely, they must be affiliated to social security in Luxembourg.

The first part of Article 18(2)(c) of the EU ICT Directive applies to non-mobile ICT permits. For mobile-ICT permits, the second part of Article 18(2)(c) of the EU ICT Directive must be considered in conjunction with Articles 11 to 16 of EU Regulation 883/2004, which applies by virtue of EU Regulation 1231/2010.

Assessment criteria

Do the immigration authorities follow objective criteria, or do they exercise discretion according to subjective criteria?

The Luxembourg immigration authorities follow objective criteria to accept or deny applications.

High net worth individuals and investors

Is there a special route for high net worth individuals or investors?

This question cannot be addressed in the context of long-term transfers.

The Immigration Law of 29 August 2008 sets out four investment schemes which determine third-country nationals’ right to gain residency in Luxembourg. Real estate investments are expressly excluded.

Own-account investments and investment entities are foreseeable.

Third-country nationals who are eligible for investment schemes will be issued a three-year investor residence permit valid. This permit is renewable under the same conditions.

Hight-net-worth individuals may enforce Article 78(1) of the Immigration Law (authorisation to stay for private reasons).

Is there a special route (including fast track) for high net worth individuals for a residence permission route into your jurisdiction?

There is no fast-track route for high-net-worth individuals.

Highly skilled individuals

Is there a special route for highly skilled individuals?

In the context of long-term transfers, intra-corporate transferees (under the EU ICT Directive) must be highly qualified and not just highly skilled. Trainee employees must hold a university degree, whereas managers and experts must provide proof of professional qualifications and experience required by the host entity.  

Workers posted under the EU Posting of Workers Directive need not prove their skills or qualifications.

As regards locally hired employees, the following main categories of single permit are issued:

  • salaried worker permits – issued where the worker holds an employment contract for a position which was declared vacant to the Agency for Employment Development once the agency has issued the relevant certificate. The applicant must have the appropriate professional qualification to perform the intended activity, which must serve Luxembourg’s economic interests. Such permits are valid for a maximum of one year and can be renewed for a maximum of three years;
  • EU Blue Cards – issued to ‘highly qualified workers’ (ie, workers who have entered into an employment contract for a highly qualified job for a minimum of one year, meet the minimum wage threshold set out in national legislation and have the relevant high professional qualifications under Article 45 of the Immigration Law of 29 August 2008). The EU Blue Card is valid for up to four years, unless the employment contract is valid for less than that. In the latter case, the permit is valid for the duration of the employment contract plus three months. The permit can be renewed for a duration of four years or for the duration of the employment contract plus three months; and
  • researcher permits – issued in accordance with the EU Students and Researchers Directive (2016/801/EU), transposed into national legislation by the Law of 1 August 2018.
Ancestry and descent

Is there a special route for foreign nationals based on ancestry or descent?

Yes. However, this question is irrelevant in the context of long-term transfers.

Minimum salary

Is there a minimum salary requirement for the main categories for company transfers?

The renumeration granted to ICT permit holders must be no less favourable than that granted to Luxembourg nationals who hold a comparable position in accordance with collective agreements or practice.

Regardless of the worker’s nationality or where the company making the posting is established, the remuneration granted to workers who are posted (in the sense of the EU Posting of Workers Directive) must be at least equivalent to the minimum social wage automatically adjusted based on changes in the cost of living (in accordance with Paragraph 2 of Article 141-1 of the Labour Code). Different requirements will apply from 30 July 2020, when EU member states must adopt and publish the laws, regulations and administrative provisions necessary to comply with EU Directive 2019/957.

The national legislation provides for a minimum wage threshold only with regard to highly qualified workers who are hired in Luxembourg under an EU Blue Card.

Resident labour market test

Is there a quota system or resident labour market test?

Under the EU ICT Directive, ICT permits are not subject to the labour market test.

Applications which are lodged for third-country nationals temporarily posted in the context of a contract for the provision of services by an undertaking established outside the European Economic Community (EEC) and a recipient of services in Luxembourg (EU Posting of Workers Directive) are, in principle, not subject to the labour market test. However, the undertaking making the posting must invoke exceptional circumstances to show that the labour market will not be affected. The Directorate of Immigration may consult the Commission for Salaried Workers.

Applications under the salaried worker scheme are subject to the labour market test, unless they are lodged for third-country nationals who are being sent to Luxembourg to ensure business continuity.

Applications under the EU Blue Card scheme and applications lodged for seasonal workers and researchers are not subject to the labour market test.

Shortage occupations

Is there a special route for shortage occupations?

This question is irrelevant with regard to long-term transfers. However, undertakings established outside of the EEC that post third-country nationals (in the sense of EU Posting of Workers Directive) must invoke exceptional circumstances to show that the local labour market will not be affected.

Under the EU Blue Card scheme, a lower minimum wage threshold applies to third-country nationals working as: 

  • systems analysts;
  • software developers;
  • web and multimedia developers;
  • application programmers;
  • software and application developers and analysts;
  • multimedia developers not listed elsewhere;
  • database designers and administrators;
  • systems administrators;
  • computer network professionals; and
  • database and network professionals not listed elsewhere.
Other eligibility requirements

Are there any other main eligibility requirements to qualify for work permission in your jurisdiction?

As regards ICT permits, the EU ICT Directive has been literally transposed into national legislation. As such, in order to be transferred within the same undertaking or group of undertakings, managers and specialists must have been employed for between three and 12 uninterrupted months immediately preceding the date of the transfer. Trainee employees must have been employed for between three and six uninterrupted months.

Third-country nationals, employed by an undertaking established outside of the EEC, who are posted (in the sense of the EU Posting of Workers Directive) must have concluded an indefinite term employment contract with their employer at least six months prior to the commencement of the assignment.

Other criteria regarding specific permissions must also be addressed.

Third-party contractors

What is the process for third-party contractors to obtain work permission?

Self-employed individuals who meet the eligibility criteria set out in Article 51(1) of the Immigration Law of 29 August 2008 will be issued a residence permit for self-employed workers.

Articles 49 and 54 of the Treaty of the Functioning of the European Union apply to third-party contractors established in an EEC member state with regard to the right of establishment in Luxemburg, while Articles 56 and 57 of the treaty, and the European Court of Justice settled case law, apply with regard to the freedom to provide services.

Recognition of foreign qualifications

Is an equivalency assessment or recognition of skills and qualifications required to obtain immigration permission?

The Law of 28 October 2016 amending the Law of 19 June 1999, implementing the EU Recognition of Professional Qualification Directive (2005/36/EC) (the Professional Qualification Recognition Law), sets out the conditions for recognising professional qualifications. The law applies to nationals of other EEC member states and to third-country national beneficiaries covered by the EU Long-Term Residents Directive (2003/109/EC) and the EU Citizens’ Rights Directive (2004/38/EC) who wish to pursue a regulated profession in Luxembourg.