MOVING TO SWITZERLAND - BASIC PRINCIPLES OF SWISS IMMIGRATION LAW
During the past years, immigration law in Switzerland was undergoing a process of constant change. With respect to workers' mobility, the situation on the Swiss labor market has significantly changed during the last 20 years from a very regulated, rather restrictive regime to a more and more liberalized regulatory framework, particularly with respect to EU (including EFTA) nationals ("EU/EFTA-Nationals"). Since Switzerland has basically a dual system for the admission of foreign potential workers/residents, there are numerous distinctive differences between the regulatory workers' mobility framework for EU/EFTA-Nationals and nationals of other countries than the EU/EFTA ("Third Country Nationals"). You will find an overview of the general principles on workers' mobility for both groups of persons below. To summarize, EU/EFTA-Nationals can benefit from the agreement on the free movement of persons. With regard to Third Country Nationals, as a principle, only a limited number of management level employees, specialists and other well qualified employees can get a work permit.
Special rules apply if a Third Country National intends to incorporate a company in Switzerland. In that case, it is at the discretion of the authorities to grant a permit if there is a sustainable positive effect on the local economy, particularly the job market.
Regardless of their professional qualifications all EU/EFTA-Nationals are granted easy access to the Swiss labor market under the Agreement on the Free Movement of Persons. For Croatian nationals the Agreement is also applicable whereas certain transitory provisions still apply. As regards UK nationals, they are treated basically as Third Country Nationals due to the Brexit. However, UK nationals who already live in Switzerland benefit from several exceptions to this basic rule.
EU/EFTA-Nationals may stay in Switzerland as a tourist for up to three months without a residence permit. If EU/EFTA-Nationals plan to stay in Switzerland for more than three months, or if they plan to work in Switzerland, a residence permit is needed.
1. RESIDENCE PERMITS FOR EU/EFTA-NATIONALS
Nationals from the EU-27 have the right to work in Switzerland from the first day on. Nevertheless, they need a residence permit. The Agreement on the Free Movement of Persons and the Free Movement Ordinance not only cover employed workers of all kinds, but also self-employed persons and persons without gainful employment provided they have sufficient financial means to support themselves. Thus, if someone has either a gainful employment, is self-employed or has the sufficient financial means to support themselves, a permit normally is granted.
2. TYPES OF PERMITS FOR EU/EFTA-NATIONALS
For EU/EFTA-Nationals, particularly the following permits are issued:
B EU/EFTA permit (Resident foreign nationals): This permit is valid for five years. The applicant has to be in possession of an employment contract of an indefinite term or of at least twelve months' duration.
C EU/EFTA permit (Settled foreign nationals): After five or, depending on the home country, 10 years of regular and uninterrupted residence in Switzerland, a settlement permit may be granted. Depending on the applicable bilateral treaty between the home country and Switzerland, if any, there might be an enforceable claim to get a C EU/EFTA permit.
G EU/EFTA permit (Cross-border commuters): EU/EFTA-Nationals who are resident in an EU/EFTA-country and are gainfully employed within Switzerland may apply for this permit. They must return to their place of residence abroad at least once a week. For almost all EU/EFTA-Nationals there are no border zones anymore. This means that they may have their place of residence anywhere abroad and that they may work anywhere in Switzerland. However, they also have to return to their place of residence abroad at least once a week. There is one exception for citizens of Croatia: for them, boarder zones still remain.
L EU/EFTA permit (Short-term residents): Foreign nationals have to apply for this permit if they intend to stay in Switzerland for less than a year with or without gainful employment.
For nationals from the EU-27 States employment relationships of up to three months within a calendar year do not require a permit (however, there is a registration procedure).
Regarding social security, there are detailed rules in force providing that – as a principle - claims that were once acquired are not lost when a worker carries out an activity in another state. Each country undertakes to abide by certain principles whilst preserving its national system. Among these principles are the equal treatment of nationals and foreign nationals, the reciprocal calculation of insurance periods, the export of financial means and assistance in the fields of health insurance and accident insurance.
II. THIRD COUNTRY NATIONALS
Generally, Third Country Nationals need a visa for being allowed to enter Switzerland. However, there are exclusions as for example for US Nationals: They do not need a visa for a stay as a tourist of up to three months. Nevertheless, they do need a visa as soon as they intend to work for more than eight days per year in Switzerland. In addition, a work permit is necessary.
1. VISA, RESIDENCE AND WORK PERMIT FOR THIRD COUNTRY NATIONALS
In general, Third Country Nationals need (in addition to a visa) a residence and work permit upon entering the country. A work permit for Third Country Nationals only gets granted under certain rather restrictive conditions. The legal framework provides for a variety of exceptions of these restrictive conditions. Every case must be looked at separately. But the main principles can be summarized as follows:
Priority of local employees: The employer must demonstrate that no local employee and no employee from the EU/EFTA can cover the vacant position. The employer must show that he/she has searched for possible employees on the local market in vain. The search efforts to be undertaken differ from job to job but should be no less than 4 weeks in any case. This principle of the priority of local employees does not apply in some exceptional cases as, such as:
- executives or qualified specialists of internationally operating companies within the scope of an intracompany transfer; and
- executives or highly qualified specialists who are indispensable for important research projects, or essential for the fulfilment of extraordinary assignments.
Salary and employment conditions: The salary and employment conditions customary for the location, profession and sector must be satisfied. In case of postings to Switzerland, the employer shall compensate employees for expenses they incur in providing a cross-border service or in connection with a posting as part of an operational transfer, such as travel expenses and board and lodging. This compensation too must be customary for the location, profession and sector.
Personal requirements: Residence and work permits are only granted to managers, specialists and other qualified workers. Education and experience on the job play an important role in the assessment. Likewise, a special focus lies on the salary: a manager, specialist or other qualified worker is supposed to have a salary that reflects his/her position. As a rule of thumb, this starts at CHF 100’000 per year. For completeness’ sake it should be noted that there is a handful of exceptions to this prerequisite, most importantly for investors and entrepreneurs who maintain existing jobs or create new jobs.
Accommodation: Foreign nationals may only be admitted in order to work if suitable accommodation for them is available.
Furthermore, a quota system applies to the respective residence and work permits. This means that the number of respective permits is limited for each year.
2. TYPES OF PERMITS FOR THIRD COUNTRY NATIONALS
For Third Country Nationals, particularly the following permits are issued:
Permit L (short-term residence permit): Third Country Nationals must apply for this permit if they intend to stay in Switzerland for less than a year, with or without gainful employment. L permits are subject to the quota system. However, permits issued to Third Country Nationals who are gainfully employed for a total of no more than four months within one calendar year are not subject to the quota system.
Permit B (residence permit): This permit is issued for Third Country Nationals who are resident in Switzerland for a longer period of time and for a purpose with or without gainful employment. Granted the first time, it is usually limited to one year. However, once such permit has been granted, under certain conditions it can be renewed every year. Permits B are subject to quotas.
Permit C (settlement permit): After ten years of regular and uninterrupted residence in Switzerland (in exceptions five years) a settlement permit may be granted. However, there is no legal entitlement to settlement permits for Third Country Nationals.
Permit G (cross-border commuter permit): Foreign nationals who are resident in a neighboring border zone and are gainfully employed in a Swiss border zone with their place of work in such border zone may apply for this permit. They have to return to their place of residence at least once a week.
3. APPLICATION FOR A VISA AS WELL AS A RESIDENCE AND WORK PERMIT
Residence and work permits are issued by the competent cantonal authorities who examine the application and – if a visa is needed – inform the competent Swiss embassy or consulate abroad to issue a visa as soon as the cantonal authorities have given their consent. As a rule, the application for a work permit has to be filed by the future employer. In all cases, a written employment contract is required by the authorities. There are differences between the cantons regarding the difficulty in obtaining a residence and work permit.
The employee may not enter Switzerland during the application process. It is not possible to get the visa from an authority in Switzerland but it must always be issued by a Swiss embassy or consulate abroad.
4. RESIDENCE AND WORK PERMIT FOR SELF-EMPLOYED PERSONS
Third Country Nationals may be admitted to work in Switzerland on a self-employed basis if:
- this is in the interests of the economy as a whole;
- the necessary financial and operational requirements are fulfilled;
- they have an adequate and independent source of income; and
- the personal and accommodation requirements mentioned above for employed persons are met.
The quota system applies to this type of residence and work permit as well.
As self-employment usually comes with a bigger financial risk than employment, the authorities require that the person has an adequate and independent source of income and sufficient funds to run the business. Furthermore, a focus lies on the opportunities that the business of the self-employed person can offer to the Swiss economy, especially in terms of new jobs. A business plan should outline these points in more detail.
Very often, a residence and work permit granted to a self-employed person is limited to one year with the chance of renewing it. As part of the renewal, the cantonal authorities check whether the predictions made in the business plan when first applying for a permit are met and if the business is “on track”.
A residence and work permit for self-employed persons is very rare and is hardly ever granted by the authorities. If, however, a Third Country National establishes a company by shares (or in some cases also a limited liability company) and is employed there, the above provisions are applied analogously, which occurs far more frequently in practice.
5. RESIDENCE PERMIT FOR WITHOUT GAINFUL EMPLOYMENT
The granting of residence permits without gainful employment is very limited. Basically, Third Country Nationals may be granted a residence permit for education and training purposes or if they are retired. Both options go along with certain conditions that must be met.
An exception can be made if granting a residence permit is clearly in the fiscal interests of a Canton. As such, residence permits may be granted to very wealthy individuals whose taxes benefit the Canton majorly.
III. FREQUENTLY ASKED QUESTIONS
How long does it take for a residence and work permit to be issued?
For Third Country Nationals, once all the information and documents are collected, the process may take up to two months. Depending on the work load of the authorities it may even take longer. It is therefore recommended to file an application at least two months before the planned date of entry to Switzerland.
I am a Third Country National who will work / works in Switzerland. Can I (easily) get a permit for spouse and children?
If a Third Country National gets a residence and work permit, his/her spouse and children generally are issued a permit as well under the conditions that they live together, have an apartment (or an accurate place to live) and are not dependent on social benefits. Under certain circumstances, a permit may also be requested for an unmarried partner if there has been a lasting and stable relationship.
The requirements for a subsequent immigration of the family members are harder to fulfil. If it is applied for such subsequent immigration after five years – since the approval of the residence and work permit or the formation of the family relation – the Third Country National has to prove the existence of important family reasons.
What documents need to accompany a request for a residence and work permit?
Please note that the documents may vary depending on the permit that will be applied for. For Third Country Nationals, if there is no exceptional case, the following documents must be filed: cantonal application form, photocopy of passport, particular documents required by Cantons, confirmation of a vacancy advertised by the Regional Employment Offices(RAV) and in the European Employment Services cooperation network (EURES), photocopies of job advertisements published in professional magazines, trade papers, and Swiss national newspapers and magazines, evidence of customary efforts made to obtain employment, curriculum vitae (chronological style), proof of qualification (diplomas, certificates), photocopies of diplomas and certificates, contract of employment (must be signed at least by the employer) or employee transfer confirmation by the employer stating salary, expatriation allowance and expense allowance as well as the detailed reasoning for the application.
If I intend to work in Switzerland, do I get two different permits, a residence and a work permit?
No, the residence and work permit is issued as one permit. If a person is allowed to work in Switzerland, a residence permit (i.e. an L- or a B-permit) is issued by the authorities with the comment that work is allowed (“mit Erwerbstätigkeit”).