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Regulatory framework and trends

Trends and developments

Have there been any notable recent trends or developments regarding business-related immigration in your jurisdiction, including any government policy initiatives?

The Official Gazette of March 20 2017 published the Law of March 8 2017 amending and supplementing the Immigration Law of August 29 2008). The new law:

• transposes Directive 2014/66/EU on the conditions of entry and residence of third-country nationals in the framework of an intra-corporate transfer;

• transposes Directive 2014/36/EU on the conditions of entry and stay of third-country nationals for the purpose of employment as seasonal workers;

• introduces a residence permit for employees working in business continuity activities;

• introduces a residence permit for investors;

• introduces a residence permit for students from third countries in Luxembourg;

• introduces a residence permit for executive directors from third countries employed by a company established, or planning to establish itself, in Luxembourg;

• extends the validity of the EU Blue Card;

• provides for new family reunification conditions; and

• provides for an increased period in detention centres for families with minor children.

The Official Gazette of March 20 2017 also published the Law of March 14 2017 concerning the implementation of Directive 2014/67/EU on the enforcement of Directive 96/71/EC concerning the posting of workers in the framework of the provision of services.

On March 8 2017 Luxembourg passed into law new nationality rules (Official Gazette of March 17 2017).

Domestic law

What legislation and regulations govern immigration in your jurisdiction?

The following acts govern business immigration in Luxembourg: 

  • the Immigration Law of August 29 2008, as amended;
  • the Law of 8 March 8 2017 on Luxembourgish Nationality;
  • the Labour Code;
  • Grand-Ducal Regulation of September 5 2008 on the conditions for granting a salaried worker residence permit;
  • Grand Ducal Regulation of September 5 2008 to implement certain provisions concerning administrative formalities required by the Immigration Law;
  • Grand Ducal Regulation of September 5 2008 laying down the criteria of resources and accommodation provided by the Immigration Law;
  • Grand Ducal Regulation of September 5 2008 on the certification of financial responsibility of a foreigner under Article 4 of the Immigration Law;
  • Grand Ducal Regulation of September 5 2008 on the composition and functioning of the Foreigners’ Advisory Committee, the Advisory Board for salaried workers and the Advisory Commission for independent workers;
  • Grand Ducal Regulation of September 26 2008 determining the minimum level of remuneration for highly qualified workers pursuant to the Immigration Law;
  • Ministerial Regulation of June 30 2016 establishing the average gross annual salary in regard to the Grand Ducal Regulation of September 26 2008 determining the minimum level of remuneration for highly qualified workers pursuant to the Immigration Law;
  • Grand Ducal Regulation of November 14 2008 establishing the terms for granting approval to research institutions under Article 65(4) of the Immigration Law; and
  • Grand Ducal Regulation of February 3 2009 on medical examination of foreigners.

EU-related regulations such as, but not limited to, the Visa Code (Regulation 810/2009), the Schengen Borders Code and the Regulations on the Coordination of Social Security Systems (883/2004 and 987/200) are binding on Luxembourg.  

International agreements

Has your jurisdiction concluded any international agreements affecting immigration (eg, free trade agreements or free movement accords)?

Luxembourg is a member of the European Union, the European Economic Area and the Schengen Agreement.

Luxembourg has concluded bilateral social security agreements with 18 non-EU countries.

Luxembourg has concluded conventions for the avoidance of double taxation with 81 countries.

Luxembourg is a member of the International Commission on Civil Status. Thirteen conventions facilitating international cooperation in civil status matters and exchange of information between civil registrars are in force.

Luxembourg is a party to the European Convention on the Abolition of Legalisation of Documents executed by Diplomatic Agents or Consular Officers; the convention came into force in 1979.

Regulatory authorities

Which government authorities regulate immigration and what is the extent of their enforcement powers?

The authority in charge of immigration is the Ministry of Foreign and European Affairs, Directorate of Immigration, which is composed of several units, including the Foreigners Department, the Refugees Department and the Return Department.

The diplomatic missions are responsible for issuing visas.

Other ministries are involved in the immigration process, such as the Ministry of Labour, Employment and the Social and Solidarity Economy, and the Ministry of Family, Integration and Grand Region.

Two implementing agencies also play a role: the Agency for Employment Development and the Luxembourg Reception and Integration Agency.

Can the decisions of these authorities be appealed?

The public authorities’ decisions may be subject to judicial review through actions for annulment before the administrative courts.

Recent case law

Has there been any notable recent case law regarding immigration?

No.

Business visitors

Visa requirements

In what circumstances is a visa required for business visitors?

A visa is required for business visitors not holding a passport issued by one of the countries referred to in Article 1(2) of Regulation 539/2001 of March 15 2001.

Restrictions

What restrictions are imposed on business visitors in terms of the work that they may undertake and their period of stay in your jurisdiction?

First, any business presence is limited to three months per calendar year.

Secondly, permitted activities include meeting professional partners, prospecting and developing professional contacts, negotiating and signing contracts, attending fairs and exhibitions, attending boards of directors meetings and general assembly of companies. The enumeration is exhaustive; the provision does not entail the wording ‘such as’.

Thirdly, in case of a major incident a company situated out of the European Union may send workers to Luxembourg at very short notice in order to ensure business continuity.

In its opinion of October 27 2016, the State Council upheld the notion of a need for ‘business continuity’, and stressed the necessity to bring further clarification. In the case at hand, Laurent Solazzi from the Ministry of Economy suggested that the companies concerned were merely Tier IV data centres (Digital Letzebuerg, February 8 2017).

The law stipulates that the company sending employees to Luxembourg must lodge an application for prior clearance with the Ministry of Foreign and European Affairs.

Where the duration of the activity in Luxembourg does not exceed three months in a calendar year, the exemption laid down by Article 35(2) of the Immigration Law of August 28 2008 applies (ie, authorisation for work is not required). However, the ‘major incident’ must be dully established.

Where the duration of the activity exceeds three months in a calendar year, a residence permit for a salaried worker valid one year will be granted.

Lastly, Luxembourg law provides for an exemption from the work authorisation requirement for intra-company transfers (maximum three months in a calendar year) with the exception of sub-contracting activities. Such activities qualify neither under ‘business activities’ nor as equivalent to short-term mobility under the intra-company permit.

Application and entry

How are business visitor visas obtained and what is the typical turnaround time?

Visa applications must be lodged at least 15 calendar days before the intended date of entry.

The application must be lodged at the Luxembourg diplomatic mission (or mission having jurisdiction to receive such applications) in the country of residence or in the country of nationality of the applicant.

Are any visa waiver or fast-track entry programmes available?

Luxembourg is bound by the EU common visa policy for:

  • transit through the country;
  • intended stays of no more than 90 days in any 180-day period; and
  • transit through the international transit areas of airports located in the country.

The list of visa waiver countries is set out in EU Regulation 539/2001.

Visa facilitation agreements concluded by the European Union are binding on Luxembourg.

Fast track and free of charge visas are issued to third-country nationals and family members of EU nationals, to accompany or join the applicant.

Visas for business continuity activities are granted as soon after application as possible.

Short-term training

What rules and procedures apply for visitors seeking to undertake short-term training in your jurisdiction?

 The concept of ‘training’ is provided for by the Immigration Law of August 29 2008, in the following contexts:

  • Intra-corporate transfer (Article 47(3)(f): ‘trainee employee’ means a person with a university degree who is transferred to a host entity for career development purposes or in order to obtain training in business techniques or methods, and is paid during the transfer; and
  • Entry of third-country nationals for training in the sense of Article 61: ‘trainee’ means a third-country national who is pursuing a course of study in a third country, that leads to a secondary or higher-education degree and who is admitted to the territory of Luxembourg for a mandatory non-remunerated training programme, under a hosting agreement entered with the host company in Luxembourg.  

Transit

In what circumstances is a transit visa required to pass through your jurisdiction? How is it obtained?

Nationals of third countries listed in Annex IV of the Visa Code (Regulation 810/2009) are required to hold an airport transit visa when passing through the international transit areas of airports situated on the territory of Luxembourg.

The categories of person exempt from the requirement to hold an airport transit visa are laid down by Article 3(5) of the Visa Code.

Airport transit visas are issued on the ground of Article 26 of the Visa Code. 

Sponsored immigration

New hires

What sponsored visas or work permits are available to employers seeking to hire foreign nationals in your jurisdiction? What are the eligibility criteria, application procedures and maximum period of stay for each?

The following categories of single permit are issued to employees hired in Luxembourg:

  • ‘salaried workers’ hold an employment contract concluded for a position declared vacant to the Agency for Employment Development and after the issuance of the relevant certificate by the latter. The applicant must have the appropriate professional qualification for the exercise of the intended activity, which must serve the economic interests of the country. Such permit is valid for a maximum of one year and can be renewed for a maximum of three years.
  • ‘EU Blue Card’ issued to highly qualified workers, holders of an employment contract for a highly qualified job, entered for a duration of minimum one year, earn at least the minimum wage threshold laid down by the national legislation and have the relevant high professional qualifications in the sense of Article 45 of the Immigration Law of August 29 2008.. The EU Blue Card is valid up to four years, unless the employment contract validity is below four years. 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.

The procedure consists of:

  • an application for a temporary authorisation of stay under the relevant employment scheme, lodged with the Directorate of Immigration; and
  • upon issuance, where required, an application for a long-stay visa lodged with the relevant diplomatic mission in the country of residence/nationality.

In Luxembourg, a declaration of arrival made at the local administration of the place of residence, a medical check and the residence permit application are required to complete the procedure.

Third-country national cross border workers must in principle hold a work permit before commencing employment in Luxembourg. Work permits are issued under the above-mentioned categories.

Intra-company transfers

What sponsored visas or work permits are available to multinational employers seeking to transfer foreign employees to your jurisdiction? What are the eligibility criteria, application procedures and maximum period of stay for each?

Luxembourg has implemented Directive 2014/66/EU on the conditions of entry and residence of third-country nationals in the framework of an intra-corporate transfer (ICT).

This category includes managers, specialists and trainee employees who are temporary seconded for occupational or training purposes by an undertaking established outside the territory of the member states, and to which the third-country national is bound by a work contract prior to and during the transfer, to an entity belonging to the undertaking or to the same group of undertakings that is established in Luxembourg.

Applications for ICT permits must be submitted by the host entity in Luxembourg, in accordance with the procedures laid down in Articles 47 to 47(6) of the Immigration Law of August 29 2008 as amended.

The maximum duration of the ICT is three years for managers and specialists, and one year for trainee employees. Article 47(1) provides for a period of six months to elapse between the end of the maximum duration of a transfer and another application concerning the same third-country national in Luxembourg.

A ‘classic’ posting scheme, in the sense of Directive 96/71/EC, is provided by Articles 48 and 49 of the Immigration Law of August 29 2008.

Article 48 provides for the concept of ‘temporary secondment’ in the frame of a contract of provision of services, entered into by an undertaking established out of the European Union and the recipient of services in Luxembourg. The main eligibility criterion is the existence of an open-ended employment contract, entered into between the sending entity and the employee, at least six months prior to the commencement of the posting.

Article 49 provides for the same concept in the frame of intra-EU mobility.

Do any special rules govern secondments?

The law of March 14 2017 implementing Directive 2014/67/EU provides, among other things, for the obligation:

  • to notify the posting via an electronic platform; and
  • to generate a ‘social badge’ for each employee posted.

Supporting documents, translated into French or German, must be communicated via the same platform. Such documents include:

  • the letter of assignment;
  • the certificate of coverage;
  • a copy of the temporary authorisation of stay or residence permit issued to third-country nationals; and
  • during the posting period, payslips, proof of payment of the wages and timesheets indicating the beginning and end of each working day.

Sponsor requirements and considerations

What are the eligibility and procedural requirements for employers to sponsor foreign employees?

Where the criteria laid down by the national legislation for the particular employment scheme are met, any employer active in the private sector may, in principle, sponsor a foreign employee.

Article 44bis of the Immigration Law establishes a prior-clearance application for companies sending workers to Luxembourg in order to ensure business continuity.

To post workers to Luxembourg, certain companies and self-employed individuals, registered out of the European Union (commercial and craft activities, as well as certain liberal professions), are subject to a business permit issued by the General Directorate for Small and Medium Enterprises and Entrepreneurship at the Ministry of Economy.

What ongoing reporting and record-keeping requirements apply to sponsors?

Before hiring third-country nationals, and during their employment, the following obligations apply:

  • The obligation to check whether the third-country national holds a valid residence permit or authorisation of stay;
  • The obligation to keep available for inspection, during the term of the employment, a copy of the residence permit or of the authorisation of stay; and
  • The obligation to notify of the commencement of the employment, within three working days of the first working day.

Employers posting workers to Luxembourg are bound by the obligation to notify the commencement of the assignment via an electronic platform and to communicate, on a continuous basis, via the same platform, payslips, proof of payment of the wages and timesheets indicating the beginning and end of each working day.

In what circumstances (if any) must the employer submit to resident labour market testing before hiring or transferring foreign employees? Do any exemptions apply?

Applications under the salaried worker scheme are submitted to the ‘labour market test’, except for applications lodged for third-country nationals sent to Luxembourg in order to ensure business continuity.

Applications under the EU Blue Card scheme are not submitted to the labour market test.

ICT permits (Directive 2014/66/EU) are not submitted to the labour market test.

Applications lodged for third-country nationals temporarily posted in the context of a contract for the provision of services, entered into by an undertaking established out of the European Union and recipient of services in Luxembourg (Directive 96/71/EC), are in principle not submitted to the labour market test. However, the undertaking making the posting must invoke exceptional circumstances to show that the local labour market will not be affected. The Directorate of Immigration may decide to consult the Commission for Salaried Workers. 

Applications lodged for seasonal workers and researchers are not submitted to the labour market test.

Are there any annual quota limits or restrictions on certain positions that can be filled by foreign nationals?

The national legislation does not provide for quota limits.

With regard to the positions that cannot be filled by foreign nationals, the public service proviso of Article 45(4) of the Treaty on the Functioning of the European Union (TFEU) applies.

Are there any immigration exemptions or other special schemes for shortage occupations in your jurisdiction?

Under the EU Blue Card scheme, a lower minimum wage threshold is applicable to third-country nationals working in one of the following professions:  systems analysts, software developers, web and multimedia developers, applications programmers, software and application developers and analysts, multimedia developers not listed elsewhere, database designers and administrators, systems administrators, computer network professionals, database and network professionals not classified elsewhere.

How long does it typically take to obtain a sponsored visa? Is expedited visa processing available?

The delay provided by the national legislation for the issuance of temporary authorisations of stay varies depending on the particular employment category (eg, up to four months as from the day of application for salaried workers; up to three months as from the day of application for EU Blue Cards). In practice, however, delays are shorter.

Visa applications must be lodged at least 15 calendar days before the intended date of entry.

What rules govern the hiring of foreign third-party contractors?

Self-employed individuals who meet the eligibility criteria laid down by Article 51(1) of the Immigration Law of August 29 2008, will be issued a residence permit for ‘self-employed worker’.

Articles 49 and 54 of the TFEU apply to third-party contractors established in an EU member state with regard to the right of establishment, while Articles 56 and 57 of the TFEU apply with regard to the freedom to provide services. The Law of May 24 2011 implementing the General Services Directive (2006/123/EC) also applies.

What are the penalties for sponsor non-compliance with the relevant immigration laws and regulations?

 Articles L.572-4 to L.572-10 of the Labour Code provide for administrative and criminal sanctions for illegal employment of third-country nationals. Other sanctions, such as professional prohibition and closure of establishment, may also apply.  

Article L.143-2 of the Labour Code provides for administrative fines for breaching the rules governing the posting of workers to Luxembourg.

Are there any other special considerations for sponsors in your jurisdiction?

The national legislation provides for the conditions of employment of foreign nationals; it also states the sanctions for breaching these provisions.

General employee requirements

Must sponsored employees meet any language requirements?

No. Employees are not required to demonstrate language proficiency.

Are sponsored employees subject to any medical checks?

In Luxembourg, any new hire requires a medical check, regardless of his or her nationality: all third-country nationals must undergo a medical check in Luxembourg as a prerequisite to approval of the residence permit.

Must sponsored employees meet any medical or other insurance requirements?

Residence and/or work activity carried out in Luxembourg implies the obligation to be covered by adequate health insurance.

Third-country nationals who intend to travel to Luxembourg for a long stay (ie, for a duration exceeding 90 days in any 180-day period) are bound by Article 15 of the Visa Code.

Are sponsored employees subject to any security or background checks?

Where the duration of stay exceeds 90 days in any 180-day period, third-country nationals must in principle provide a police clearance certificate.

Are sponsored employees subject to any restrictions on studying or working second or volunteer jobs?

The possibility of working a second job must be assessed considering the relevant employment category (eg, a third-country national holding a ‘salaried worker’ residence permit, during its first year of validity, a third-country national would be eligible for a second job in the same industry and exercising the same profession).

National law does not prohibit a third-country national holding a residence permit issued in the capacity of sponsored employee from studying or carrying out volunteer jobs.

Article 62 of the Immigration Law of August 29 2008, provides for the conditions to gain residency on grounds of voluntary work.  

Are there any rules or standards governing the equivalence of sponsored employees’ foreign qualifications?

The Law of June 19 2009 implementing Directive 2005/36/EC lays down the condition of recognition of professional qualifications (the Professional Qualification Recognition Law). The law applies to nationals of other member states and to third-country nationals beneficiaries of Directives 2003/109/EC and 2004/38/EC wishing to pursue a regulated profession in Luxembourg.

Applicants for ICT permits and seasonal workers are beneficiaries of the degree recognition pursuant to the Professional Qualification Recognition Law.

The conditions laid down by the EU Blue Card Directive (2009/50/EC) apply to highly qualified workers, in the sense of Article 45 of the Immigration Law. Professional experience of a level comparable to higher education qualifications and that is relevant in the profession or sector specified in the work contract or binding job offer is recognised.

What are the penalties for employee non-compliance with the relevant immigration laws and regulations?

Chapter 7 of the Immigration Law of August 29 2008 provides for administrative and criminal penalties for illegal entry and stay in the territory of the Grand Duchy of Luxembourg.

Unsponsored immigration

Highly skilled individuals

What unsponsored immigration routes are available for highly skilled foreign nationals to seek employment in your jurisdiction? What are the eligibility criteria, application procedures and maximum period of stay for each?

In principle, highly qualified workers are eligible only for the sponsored immigration route. Exceptions exist, but they exist for all types of worker, not just highly qualified workers (eg, residence permit for private reasons or ‘vie privée’).

Entrepreneurs

What unsponsored immigration routes are available for entrepreneurs seeking to establish a business in your jurisdiction? What are the eligibility criteria, application procedures and maximum period of stay for each?

Entrepreneurs seeking to establish a company in Luxembourg must refer to the national legislation regulating such matters.

The recent amendment of the Immigration Law of August 29 2008 brought some clarification with regard to executive directors of companies intending to establish or having established a company in Luxembourg.

Such executive directors are eligible for a residence permit in the capacity of employed worker (salaried worker, EU Blue Card, ICT manager or specialist) or in the capacity of self-employed worker.

The law sets out specific criteria that the group intending to establish a company in Luxembourg must meet, as well for the activities that are eligible for such right.  

Investors

What unsponsored immigration routes are available for foreign investors seeking to invest in your jurisdiction? What are the eligibility criteria, application procedures and maximum period of stay for each?

The Immigration Law of August 29 2008, lays down four investment schemes determines third-country nationals’ right to gain residency in Luxembourg. 

The Grand Ducal Regulation of December 5 2017 limits the economic sectors eligible for investment in the sense of Articles 53bis(1)(1) and (2) of the Immigration Law. Real estate investments are expressly excluded from the law.

Own-account investments and investment entities are foreseeable.

Third-country nationals who are eligible for investment schemes will be issued an investor residence permit valid for three years and renewable under the same conditions.

Ancestry

Are any immigration routes open to foreign nationals based on ancestry or descent?

Yes, immigration routes are open on grounds of descent and ancestry.

Other routes

Are there any other unsponsored immigration routes?

Yes, other unsponsored immigration routes are available, such as self-employment and long stay for private reasons.

Extensions, permanent residence and citizenship

Extensions and status changes

Can short-term visa or work permit holders switch to long-term visas? If so, what conditions and procedures apply?

Short-stay visas (C visas) issued under the EU Visa Code cannot be converted into residence permits.

The relevant question would be whether third-country nationals may convert short stay into long stay in Luxembourg.

In principle, third-country nationals may not enter the territory of the Grand Duchy before the issuance of the temporary authorisation of stay.

Article 39(2) of the Immigration Law of August 29 2008 provides for the possibility to switch short stay to long stay in Luxembourg where the return to the home country would represent an exceptional burden.

Seasonal workers may, however, switch short stay to long stay in Luxembourg.

Under what conditions can long-term visas be extended?

The common immigration procedure requires an application for a temporary authorisation of stay followed, where required, by an application for a visa. In Luxembourg, third-country nationals must declare arrival within three days of the date of entry and then lodge the application for a residence permit within a maximum of three months of the date of entry.

Permanent residence

Can long-term visa holders apply for permanent residence? If so, what conditions and procedures apply?

Visas must be converted to local residence permits.

Third-country nationals are eligible for long-term resident status after five years of lawful and uninterrupted stay if the other eligibility criteria are met.

Posted workers, seasonal workers and workers transferred to Luxembourg are not eligible for permanent residency.

Citizenship

Can long-term visa holders or permanent residents apply for citizenship? If so, what conditions and procedures apply?

Visas do not confer citizenship-related rights.

Dependants

Eligibility

Who qualifies as a dependant for immigration purposes?

With regard to family members accompanying or joining third-country nationals, the following main categories qualify as dependants for immigration purposes:

  • the spouse or partner with whom the third-country national has contracted a registered partnership in accordance with the formal and substantive conditions laid down by the Law of July 9 2004 as amended; and
  • their descendants and those of one of the spouses/partners, under the age of 18 and unmarried. Where it concerns descendants of one of the spouses/partners, the latter must have custody of the children, and in case of shared custody, the other parent’s consent is required.

Direct relatives in the ascending line and those of the spouse or partner can be authorised to entry and stay if they are economically dependent of the third-country national, opening the right to family reunification.

Descendants and those of the spouses/partners above the age of 18 and unmarried can be authorised to entry and stay if the former cannot meet their needs of subsistence due to health reasons.

More favourable conditions are provided for EU nationals and third-country nationals that are family members (or ‘other family members’) of EU nationals.

Conditions and restrictions

What conditions and restrictions apply to bringing dependants to your jurisdiction (including with respect to access to labour markets, education and public benefits)?

Dependents who qualify as ‘family member of EU nationals’ in the sense of the national legislation and, where relevant, the case law of the European Court of Justice may accompany or join the EU national in Luxembourg, regardless of their nationality.

The following categories of third-country nationals can be accompanied or immediately joined by spouse, registered recognised partner or their descendants under the age of 18 and unmarried: EU Blue Cards holders, ICT permits holders, researchers and holders of long-term residence permits issued by another EU member state (in the sense of Directive 2003/109/CE) if the family was constituted in the latter member state.

Other third-country nationals can be joined by the dependents referred to above only if the former hold a residence permit valid for a duration of minimum one year and have reasonable prospects of obtaining the right to long stay.

Only third-country nationals lawfully residing in Luxembourg for at least 12 months can be joined by direct relatives in the ascending line and descendants above the age of 18. More favourable treatment can be foreseeable if the third-country national holds a long-term residence permit issued by another EU member state and the family was constituted in that member state.

The delay provided by the national legislation for the issuance of the authorisation of stay for family reunification is up to nine months, or longer in exceptional circumstances. In practice, the delay is shorter.

Authorisations of stay for family members of EU Blue Card holders are granted within maximum six months of the application day (where the conditions provided by law are met).

Authorisations of stay for family members of ICT permits holders are granted within maximum 90 days of the application day (where the conditions provided by law are met). The applications lodged for the transferee and his/her family members are handled simultaneously if lodged simultaneously.

Residence permits issued to dependents of third-country nationals (‘family member’ permit) are valid for one year and can be renewed under the same conditions.

Residence permits issued to family members of EU Blue Card and ICT permits holders are issued for the same validity as that of the employee’s permit.

Third-country nationals family members of EU nationals have unrestricted access to the labour market if they accompany or join the EU national.

Other third-country nationals holders of a ‘family member’ residence permit have access to the labour market, but are not exempt from obtaining the relevant authorisation (in the capacity of employed or self-employed worker).

Such permits determine, among other things, their right to education, training and vocational training.