This new addition to the Getting The Deal Through series offers a comparative summary of corporate immigration in the global sphere, with contributions from leading international practitioners. Topics covered include: short and long term transfers, permit procedures and timelines, routes for entrepreneurs and highly skilled, extensions and variations of permits and rights of dependants.
In broad terms what is your government’s policy towards business immigration?
Switzerland has a dual system for the admission of foreign workers. Gainfully employed nationals from EU and European Free Trade Area (EFTA) states can benefit from the agreement on the free movement of persons (AFMP). Only a limited number of management level employ- ees, specialists and other qualified employees are admitted from non- EU countries. It is to be noted that only foreigners who actually work and reside on Swiss territory require a work and residence permit. Foreigners who are employed by a Swiss entity, but who work and reside abroad, do not require a Swiss work and residence permit, even if they are on Swiss payroll and hold a Swiss employment contract.
Following the vote of 9 February 2014 in favour of the ‘Mass immigration initiative’, the Swiss government decided to implement the new constitutional provision in line with the AFMP. In short, the implementation consists in a mandatory reporting of all job vacancies in professions with an average unemployment level of 8 per cent. The reporting became mandatory as of 1 July 2018. As of 1 January 2020, the reporting obligation will become slightly stricter, with a mandatory reporting obligation when the average unemployment level reaches 5 per cent.
In what circumstances is a visa necessary for short-term travellers? How are short-term visas obtained?
Switzerland is an associate member state to the Schengen Agreement. As such, visa nationals wishing to travel to Switzerland to do business on their or their employer’s behalf must obtain a Schengen visa before travelling to Switzerland.
Short-term Schengen visas valid for a maximum of 90 days in a 180-day period can be obtained by making an application for a business visitor visa at the relevant Swiss representation in the individual’s coun- try of legal residence.
Nationals of the EU are visa-exempt. Also, nationals of certain non- EU countries such as Canada, Japan, Singapore, the United States, etc, are visa-exempt as long as they travel to Switzerland as business visi- tors and not for the purpose of taking up employment. It is important to check on the visa requirements before travelling to Switzerland.
What are the main restrictions on a business visitor?
A business visitor cannot undertake work activities while in Switzerland. There is a short list of activities that a business visitor is permitted to carry out, which includes attending meetings, interviews, conferences, classroom training sessions, contract negotiations, etc. This list, which is based on a directive issued by the Federal Office for Migration, is not exhaustive.
Business visitors can remain in Switzerland for a maximum of 90 days in a 180-day period provided they limit their activity to the aforementioned and the expiry date on their visa allows them to do so.
Is work authorisation or immigration permission needed to give or receive short-term training?
It is possible to give training for up to eight days per year or receive short- term classroom training without requiring a specific work authorisation.
However, it depends on the specific circumstances and the type of training whether a foreigner will qualify as a business visitor or will require a work authorisation. In the event that the business visitor visa criteria are not met, the foreigner would be required to apply for a short- term work authorisation.
Are transit visas required to travel through your country? How are these obtained? Are they only required for certain nationals?
A Schengen short-term C-type visa is required if visa nationals wish to leave the international transit zone of airports or enter Switzerland through other ports of entry. Such visas are obtained at the relevant Swiss representation in the individual’s country of legal residence.
Citizens of certain countries need, in any case, an airport transit visa (Schengen visa, A-type), even if they do not leave the international transit zone of the airport and do not enter the Schengen area.
What are the main work and business permit categories used by companies to transfer skilled staff?
The main permit categories are as follows:
- B permits: for long-term work and residence of more than one year, issued to employees who are hired on a local contract or for long-term assignments (these require a quota);
- L permits: for short-term work and residence of between four and 12 months (the L permit can be extended to a maximum of 24 months and then in principle a conversion to a B permit is pos- sible), issued to employees who are hired on a temporary contract or for a short-term assignment (these require a quota); and
- 120-day or four-month work permits: for work of up to 120 days spread over a year or four consecutive months per year (quota-free).
An online notification procedure exists, for which the following applies:
- this is used for EU nationals or non-EU nationals who have been working on the EU labour market for at least one year;
- it is also used for short-term employment of up to 90 days per calendar year with a Swiss company (local hires) or for very short-term assignments in the case of an assignment by an EU entity (for EU entities assigning employees to Switzerland, there is a limit of 90 days per calendar year and per assigning entity);
- the submission date is one day in advance in the case of local hires and eight days in the case of assignees;
- the exact assignment dates or period must be reported; and
- the salary must be indicated when filing the notification (this new requirement came into effect in 2013).
What are the procedures for obtaining these permissions? At what stage can work begin?
A work and residence permit is obtained via a sponsor (typically the employing entity).
The granting of a work permit for non-EU nationals lies, to a signifi- cant extent, at the discretion of the immigration authorities under consideration of the legal framework and the specific circumstances of the case. As a basic principle, only highly skilled and highly qualified employees from non-EU countries may obtain a Swiss work permit and only under the condition that a quota is available (with the exception of permits for up to four months or 120 days per year, for which a quota is not necessary).
The application is filed by the employing entity with the labour authority that is competent for the canton where the foreigner will work. The application must be approved by the competent cantonal labour authority, the State Secretariat for Migration and, finally, by the competent cantonal migration authority. The latter issues the work visa approval on the basis of which the foreigner collects the visa allowing him or her to enter Switzerland, register and commence work. There are few exceptions where non-EU nationals do not require a visa in addition to the work authorisation (Japan, Singapore, etc).
Non-EU nationals are, in principle, entitled to start work after the post-arrival registration in Switzerland.
EU nationals (with the exception of Croatian nationals)
EU nationals (EU-17, EU-8 and EU-2) who have signed an employment contract with a Swiss employer may simply register with the competent commune of residence and start to work right away. However, for the period between 1 June 2017 and 31 May 2019, B permits for EU-2 nation- als are again restricted by quotas that will be released quarterly. L per- mits are not affected. From 1 June 2019, EU-2 nationals will benefit fully from the free movement of persons.
In the case of EU nationals on foreign employment contracts who are assigned to Switzerland as intra-company transferees or as project workers, the application is filed by the employing entity with the labour authority that is competent for the canton where the foreigner will work. The application must be pre-approved by the competent cantonal labour authority prior to the employee being able to start work. The employee must register with the competent commune in case of stays of over four months or 120 days.
Croatia joined the EU on 1 July 2013. Croatia’s accession did not have any immediate bearing on the AFMP. Extension of the AFMP to Croatia was negotiated in Protocol III, which provides full free movement of persons for Croatian nationals following a 10-year transitional period. Protocol III came into force on 1 January 2017. However, access to the Swiss labour market remains subject to the provisions of the Foreign Nationals Act until 31 December 2023. Additional, separate quotas for work permits still apply, but they are increased on an annual basis: 78 B permits and 748 L permits for 2018, and 103 B permits and 953 L permits for 2019. 120-day permits issued to unqualified persons are counted under the quota for L permits. Further, the online-notification procedure does not apply in the case of Croatian nationals who are locally hired.
The employing entity submits an application to the cantonal labour authority and, upon receipt of the labour authority’s pre-approval, the employee may legally start to work. A post-arrival registration is necessary where the employee holds a work permit for longer than four months.
What are the general maximum (and minimum) periods of stay granted under the main categories for company transfers?
There are no minimum periods. The maximum periods for assignees on foreign employment contracts are usually between two and five years, depending on the social security treaty or free trade agreement with the relevant countries.
How long does it typically take to process the main categories?
In the case of non-EU nationals, the processing time of a work permit application is usually between four and eight weeks from the filing date of the application, depending on the workload of the competent author- ities and the canton where the application is filed.
In the case of EU nationals on assignment in Switzerland, the appli- cation may take around one to three weeks from the filing date of the application. EU nationals on local Swiss contract may start to work right after they register at the competent commune of residence.
Is it necessary to obtain any benefits or facilities for staff to secure a work permit?
In the case of assignments (ie, employees who remain on a foreign employment contract during the assignment duration), housing, travel and meal expenses must be borne by the employing entity throughout the duration of the assignment.
Do the immigration authorities follow objective criteria, or do they exercise discretion according to subjective criteria?
As a basic principle, only highly skilled or highly qualified employees from non-EU countries may obtain work permits. ‘Highly qualified employee’ means, first and foremost, people with a university degree as well as several years of professional experience. Depending on the profession or field of specialisation, other people with special training and several years of professional work experience may also be admit- ted to the Swiss labour market. As well as professional qualifications, the applicant is also required to fulfil certain other criteria, which would facilitate their long-term professional and social integration. These include professional and social adaptability, knowledge of a language (or languages) and age. The Swiss authorities examine the person’s qualifications on the basis of their curriculum vitae, their educational certificates and references. The Swiss authorities further examine whether the salary and other terms of employment are in line with the Swiss requirements in the specific region and business sector in which the foreigners will work. This implies that the specialisation and the qualification of the employee must also be reflected in the conditions of the employment.
Thus, the granting of permits to non-EU nationals lies, to a
significant extent, at the discretion of the immigration authorities under consideration of the legal framework and the specific circumstances of the application. There are, however, some categories of cases where a legal entitlement exists and the granting of permits is facilitated (eg, cases of senior management employees from non-EU countries being transferred to Switzerland as part of an intra-company assignment or EU nationals locally hired in Switzerland).
EU nationals with a Swiss employment contract have a legal right to obtain a Swiss work and residence permit on the basis of the AFMP. Consequently, no discretion is exercised by the authorities.
Is there a special route for high net worth individuals or investors?
High net worth individuals from EU countries may obtain a residence permit by proving that they have sufficient financial means.
In the case of high net worth individuals from non-EU countries, it is possible to obtain a residence permit on the basis of lump-sum taxation (not available in the canton of Zurich, Schaffhausen and Appenzell Ausserrhoden, but available in Geneva, Zug, Lucerne, Vaud, etc). However, this type of residence permit does not allow the foreigner to work in Switzerland.
The other possibility is to invest into a business in Switzerland (either by creation of a new business or by investment into an existing business). In such a case, it is necessary to prove to the immigration authorities that the investment serves a macroeconomic interest of Switzerland and that, in particular, the Swiss employment market will benefit from the investment (eg, that the investment will contribute to the diversification of the regional economy, that it will create jobs for the local work force and generate new mandates for the Swiss economy). These effects would need to be evidenced by a detailed business plan.
Is there a special route for highly skilled individuals?
No, there is no special route, since Switzerland only admits highly skilled individuals from non-EU countries.
Is there a special route (including fast track) for high net worth individuals for a residence permission route into your jurisdiction?
No, there is no special route for high net worth individuals for a residence permit other than those outlined in question 12.
Is there a minimum salary requirement for the main categories for company transfers?
There are no minimum salary requirements with the exception of those stipulated in collective agreements (eg, in the construction and profes- sional cleaning industry).
However, in the case of non-EU and Croatian nationals, or EU or EFTA nationals assigned to Switzerland, the employer may only obtain a work authorisation if he or she pays a salary that is in line with what Swiss employees with similar educational backgrounds and work expe- rience earn in a similar position and in the same industry and canton.
Is there a quota system or resident labour market test?
Yes, there is a labour market test, as well as a quota system.
Labour market test
The labour market test only applies when a Swiss employer wishes to hire an individual from a non-EU country or from Croatia. In such a case, the employer must advertise the position in local and EU (only for non-EU nationals) newspapers or websites, or both, for several weeks. In certain cantons, the advertisement must also be displayed on certain public websites for unemployed workforce. Only if the employer can prove that he or she could not find any suitable candidate on the Swiss or EU labour market will the authorities grant a work authorisation to a candidate from a non-EU country. In the case of Croatian candidates, the labour market search must only be done on the Swiss labour market. As of 1 January 2018, the annual work permit quotas (only applicable to permits valid for more than four months) are limited as follows:
- short-term L permits: 4,500; and
- long-term B permits: 3,500.
These quotas are allocated annually and they are divided in half between the cantons (there is an exact number of quotas for each canton) and the federal government.
EU nationals (with the exception of Croatian nationals)
In the case of EU nationals assigned to Switzerland by their foreign employer, the following quotas apply:
short-term L permits: 3,000; and long-term B permits: 500.
These quotas are allocated on a quarterly basis and administered at the federal level. Since 1 June 2017, B permits for Bulgarian and Romanian nationals (EU-2 nationals) are again subject to quota. The annual quota is 996, released quarterly.
In the case of Croatian nationals who are locally hired, the following quotas apply:
- short-term L permits: 748; and
- long-term B permits: 78.
These quotas are also allocated on a quarterly basis and administered at the federal level. In the case of assignments, the same quotas as for EU nationals apply.
Are there any other main eligibility requirements to qualify for work permission in your jurisdiction?
In the case of intra-company transferees, the Swiss authorities usually require that employees from a non-EU country have worked for at least one year for their employer abroad prior to being assigned to Switzerland by that same employer. Some cantonal authorities are stricter than others with regard to this requirement.
What is the process for third-party contractors to obtain work permission?
A contractor can usually only work for the company, project and loca- tion for which the work permit was granted. A change of company, project or location usually requires a new work authorisation.
It should be noted that body leasing from abroad is forbidden by law in Switzerland.
As well as the standard work permit application procedure, a contractor may also obtain permission to work using the online notification procedure described in question 6.
Is an equivalency assessment or recognition of skills and qualifications required to obtain immigration permission?
For the work permit application process, an equivalency assessment or recognition of skills and qualifications is, in principle, not required. However, in order to take up work in Switzerland, the recognition of skills and qualifications for certain jobs (eg, the medical sector) may be required from various bodies. It must be checked on a case-by-case basis whether the existing diplomas are recognised or whether addi- tional qualifications need to be obtained.
Extensions and variations
Can a short-term visa be converted in-country into longer- term authorisations? If so, what is the process?
In-country change from business visitor status to work authorisation is, in principle, not possible. However, it is, in general, possible to have a short-term work authorisation converted into a long-term work authorisation.
Can long-term immigration permission be extended?
There is, in principle, no limitation on how long a work authorisation may be extended – under the assumption that all conditions for the extension are fulfilled and that there are no criminal charges or simi- lar reasons for the Swiss authorities to retrieve the authorisation already granted.
However, in the case of assignments, the duration of the assignment must be limited in time. If the extension of the stay in Switzerland is necessary beyond the duration of four to six years (depending on the social security treaty or free trade agreement with the relevant coun- tries), the authorities usually require that the employee is put on a Swiss employment contract.
What are the rules on and implications of exit and re-entry for work permits?
Foreigners may enter and exit Switzerland using their passports and their Swiss residence permits. All non-EU nationals whose residence permits have expired or who have not yet obtained their Swiss residence permits, must obtain a re-entry visa before leaving Switzerland.
Foreigners holding an L-type permit should not leave Switzerland for more than three consecutive months or the permit will be automatically cancelled.
Foreigners holding a B-type permit should not leave Switzerland for more than six consecutive months or the permit will be automatically cancelled.
How can immigrants qualify for permanent residency or citizenship?
Immigrants can qualify for permanent residency (settlement per- mits (C permits)) on the basis of settlement treaties signed between Switzerland and their home country. The timeline to obtain a C permit differs from treaty to treaty: a citizen of Canada, EFTA countries, EU-17 (except Cyprus and Malta) or the United States may obtain a C permit after five years of continuous residence. Citizens of other countries must usually have resided in Switzerland for 10 years before being able to obtain a C permit.
The basic conditions to qualify for Swiss citizenship are as follows:
- at least 10 years of residence in Switzerland, including several years in the canton and the commune where the individual intends to apply for the citizenship (the exact duration depends on the specific canton and commune); and
- other criteria such as good social integration (including language skills and familiarity with Swiss customs), as well as a good reputa- tion (including compliance with the rule of law and no danger to internal or external security).
Must immigration permission be cancelled at the end of employment in your jurisdiction?
A foreigner who holds a work and residence permit has the obligation to deregister and return his or her residence permit before leaving Switzerland.
Depending on the canton, there might be cantonal requirements for employers to notify the authorities about the termination of employ- ment because of redundancy or change of employer.
Are there any specific restrictions on a holder of employment permission?
Usually, short-term employment permissions (ie, L-type permits) issued to non-EU nationals are restricted to a specific employer, func- tion and canton. All relevant changes must be notified to the competent authorities. Long-term employment permissions (ie, B-type permits) of non-EU nationals may also be restricted; this must be checked on a case-by-case basis and where there are restrictions, all relevant changes must be notified to the competent authorities.
EU nationals enjoy full freedom of movement and employment in Switzerland.
Who qualifies as a dependant?
Usually, married partners and children (under 18 years of age for non-EU nationals and under 21 years of age for EU nationals) qualify as dependants. Civil partners and same-sex partners may also qualify as dependants, however, only if certain conditions are met (several years of partnership, living together in the same household, etc).
Are dependants automatically allowed to work or attend school?
Dependants of EU nationals may automatically work in Switzerland.
Dependants of non-EU nationals who hold an L-type dependant permit cannot automatically work on the basis of their dependant per- mit and must find an employer who will be willing to sponsor a work permit for them. Dependants of non-EU nationals who hold a B-type dependant permit may automatically work.
Dependent children may automatically attend school.
What social benefits are dependants entitled to?
In principle, there are no particular social benefits that dependants are entitled to. Dependants must show that the main applicant can support them for the duration of their time in Switzerland. In addition, they must show that they will not rely upon public funds.
Are prior criminal convictions a barrier to obtaining immigration permission?
Refusal of entry into Switzerland can be justified for non-EU nationals on grounds of having a criminal record.
With regard to EU nationals seeking entry to Switzerland, previ- ous criminal convictions alone cannot constitute sufficient grounds for refusal. They can only be excluded from Switzerland on very limited grounds of public policy, public security or public health.
However, individuals applying for a C permit or for Swiss nationality must, in principle, have a clean criminal record.
What are the penalties for companies and individuals for non-compliance with immigration law? How are these applied in practice?
There are various legal provisions in Swiss law regulating illegal practice in connection with immigration. Below is a very brief overview of a few main provisions that are currently in force.
According to article 115 of the Swiss Foreigners Law, foreigners who reside in Switzerland without a valid residence permit or who work in Switzerland without a valid work permit may be sanctioned with a fine or with imprisonment of up to one year.
When applying for the relevant work authorisation, one should disclose all relevant information accurately. If an application contains misleading information or relevant pieces of information have not been disclosed, the authorities may impose a fine or imprisonment of up to three years respectively, and five years in the case of intentional unjustified enrichment (article 118 of the Foreigners Law). According to article 122 of the Foreigners Law, if the employer repeatedly breaks the Foreigners Law, the authorities may totally or partially refuse all further permit applications.
Every Swiss company employing foreign workers undergoes a duty of diligence and must ensure that all foreign employees have the necessary permits before starting work in Switzerland (either on the basis of an employment contract or on the basis of a contract for provision of services (article 91 of the Foreigners Law)).
It should be noted that the Swiss authorities can investigate cases at all times and all non-compliant cases may be communicated to the public prosecutor and employers may be prosecuted by a public pros- ecutor or blacklisted (which implies a rejection of future work permit applications).
Are there any minimum language requirements for migrants?
In general, only for the purpose of obtaining a C permit based on suc- cessful integration, a language test proving an A2 level of the national language, which is spoken in the canton where the applicant lives, is required.
To obtain other types of permits, in principle, the foreigner is not required to prove that he or she speaks one of the Swiss national languages. However, it may be that in some cantons individuals are required to attend language courses during their stay in Switzerland to ensure a certain level of integration.
Is medical screening required to obtain immigration permission?
Is there a specific procedure for employees on secondment to a client site in your jurisdiction?
There is no specific procedure. The same type of process needs to be followed as for intra-company transferees. However, a copy of the service agreement between the employing entity and the client, as well as a very detailed project description, must be provided as part of the application.