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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?
As a matter of principle, authorisations of employment are issued to employers seeking to hire nationals of third countries that have entered into employment agreements with Belgium. Such authorisations are subject to the labour market test.
Article 9 of the Royal Decree of June 9 1999 provides the different categories of third-country nationals (including highly qualified workers) who are eligible for a work permit under terms that derogate from the labour market test.
Authorisations of employment issued pursuant to Article 9, are not limited to employers seeking to hire nationals of third countries that have entered into employment agreements with Belgium.
Article 2 of the decree provides for certain work permit exemptions.
Another available category is the EU Blue Card scheme, which implements EU Directive 2009/50/EC. The eligibility criteria vary depending on the relevant category.
Applications must be lodged with the competent labour authority. An authorisation of employment will be issued to the employer and a work permit to the employee.
Long-stay visas (D visas), issued to third-country nationals on the grounds of work permits or work-permit exemptions, determine the right of entry and stay. However, they must be converted to local residence permits.
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?
Under national legislation, the concept of transfer is equal to secondment (posting). Transfer in the sense of the L1 US visa is not provided for by national legislation.
Article 9 of the Royal Decree of June 9 1999 provides the different categories of third-country nationals (including highly qualified workers) who are eligible for work permits in the capacity of posted workers.
Article 2 of the decree provides for certain work permit exemptions.
Belgium is yet to implement the EU Intra-Corporate Transfer Directive (2014/66/EU). However, the present legislation makes no distinction between posting within international groups of companies and posting to customer sites. In short, the category of third-country nationals posted to Belgium covers all posting categories.
The eligibility criteria vary depending on the relevant category. Applications must be lodged with the competent labour authority. An authorisation of employment will be issued to the employer and a work permit to the employee.
Long-stay visas (D visas), issued to third-country nationals on the grounds of work permits or work permit exemptions, determine the right of entry and stay. However, they must be converted to local residence permits.
Do any special rules govern secondments?
Intra-EU secondments are bound by the Act of 5 March 2002 implementing EU Directive 96/71/EC and the enforcing EU Directive 2014/67/EU of the European Parliament and of the Council concerning the posting of workers in the framework of the provision of services. Undertakings established outside the Community do not receive more favourable treatment than undertakings established in the territory of another member state.
Undertakings established outside of the European Union and posting highly qualified workers in that capacity, are bound by the minimum wage threshold provided by Article 9.6° of the Royal Decree of June 9 1999. Pursuant to Article 37/2 of the decree, the minimum wage threshold is deemed to represent the compensation for the work carried out in the sense of settled European Court of Justice (ECJ) case law (eg, Isbir (C-522/12)). Therefore, allowances paid for reimbursement of expenditure actually incurred on account of the posting (eg, expenditure on travel, board and lodging) cannot be considered a part of the minimum wage threshold provided by Article 9.6° of the decree.
Sponsor requirements and considerations
What are the eligibility and procedural requirements for employers to sponsor foreign employees?
National legislation provides no eligibility or procedural requirements for employers to sponsor foreign employees. Authorisation of employment can be denied or withdrawn under Articles 34 and 35 of the Royal Decree of June 9 1999, mainly where the employer fails to comply with the legal and regulatory obligations relating to the occupation of workers.
What ongoing reporting and record-keeping requirements apply to sponsors?
Before hiring and during the employment of third-country nationals, sponsors must:
- check whether the third-country national holds a valid residence permit or authorisation of stay;
- keep available for inspection, at least during the term of employment, a copy or details of the residence permit or any other valid residence document; and
- notify of the commencement and end of employment (the so-called ‘Dimona’ declaration).
Before posting an employee to Belgium, employers must notify of the commencement of the assignment and designate a person to liaise with the competent authorities and send out and receive documents (the ‘Limosa’ declaration).
During the assignment and within one year of its completion, the designated person must provide (where required) a copy of the letter of assignment, time sheets, copies of pay slips and proof of payment of wages.
The company making the posting, rather than the host company, is bound by the abovementioned obligations. However, in regard to the Limosa declaration, the undertaking making the posting and the recipient of services are jointly and severally liable.
The Belgium-based company mustcheck whether any third-country national working on its premises holds a valid residence permit or authorisation of stay.
In what circumstances (if any) must the employer submit to resident labour market testing before hiring or transferring foreign employees? Do any exemptions apply?
As a matter of principle, authorisations of employment are subject to the labour market test.
Article 9 of the Royal Decree of June 9 1999 provides the different categories of third-country nationals who are eligible for a work permit under terms that derogate from the labour market test.
Temporary authorisations of employment issued under the EU Blue Card scheme are exempt from the labour market test.
Are there any annual quota limits or restrictions on certain positions that can be filled by foreign nationals?
No quotas apply for work permits.
The ‘public service proviso’ provided by Article 45(4) of the Treaty on the Functioning of the European Union applies to positions that cannot be filled by foreign nationals.
Pursuant to Article 10 of the Constitution, only Belgian nationals are eligible for public employment. However, exceptions can be provided by law.
Federal administration and regional law provide the relevant exceptions considering the criteria set by the ECJ.
Employees of public enterprises are subject to general labour law, which provides no limitations based on nationality.
Are there any immigration exemptions or other special schemes for shortage occupations in your jurisdiction?
Lists of shortage occupations are held by the regions.
Holders of a long-term residence permit issued by another member state (pursuant to EU Directive 2003/109/EC) who are not beneficiaries of the derogation from the labour market test based on another ground, are exempt from such test for employment in a shortage occupation.
Authorisations of employment are issued within five working days and a work permit exemption will apply after an individual has worked in Belgium while holding a type-B work permit for an uninterrupted 12-month period.
Authorisations of employment are not limited to employers seeking to hire nationals of third countries that have entered into employment agreements with Belgium.
How long does it typically take to obtain a sponsored visa? Is expedited visa processing available?
Short-stay visas are issued to business visitors within approximately 15 days of the application date.
Work visas (ie, long-stay type-D visas) are issued to employees within several working days.
Under national legislation, the delay for the issuance of D visas for family reunification is a maximum of nine months, but can be longer in exceptional circumstances. The effective delay depends on whether the dependants are accompanying or joining the employee. Applications should be lodged at the same time (ie, employee and dependants) in order to be approved within a short delay. Where the dependants are joining the employee in Belgium, the right to family reunification cannot be enforced before the employee’s residence permit has been issued. In this case, D visa applications for family members are approved within several months of the date of application.
What rules govern the hiring of foreign third-party contractors?
To provide services in Belgium, self-employed third-country nationals must hold a professional card unless they are exempt under national legislation.
Third-party contractors established in one of the member states are beneficiaries of Articles 49 and 54 of the Treaty on the Functioning of the European Union with regard to the right of establishment and Articles 56 and 57 of the treaty with regard to the freedom to provide services. In context, the Law of March 26 2010 implementing the EU General Services Directive must be cited.
What are the penalties for sponsor non-compliance with the relevant immigration laws and regulations?
Employers hiring foreign nationals in Belgium, posting foreign nationals to Belgium or merely hosting foreign nationals on their premises, are bound by EU law and national legislation.
A foreign national’s conditions of employment are provided by the Social Criminal Code and related acts and decrees. Failure to comply will result in liability to administrative fines, criminal fines and, in certain circumstances, imprisonment. Other criminal penalties (eg, prohibition of exploitation, professional prohibition and closure of establishment) may also apply.
Are there any other special considerations for sponsors in your jurisdiction?
National legislation provides for the conditions of employment of foreign nationals, as well as the penalties for breaching these provisions.
General employee requirements
Must sponsored employees meet any language requirements?
No. Employees need not demonstrate language proficiency in order to be admitted to work in Belgium.
Are sponsored employees subject to any medical checks?
Yes. Before being admitted to work, third-country nationals must undergo a medical examination unless they have been lawfully residing in Belgium for a minimum of two years.
Must sponsored employees meet any medical or other insurance requirements?
Third-country nationals employed in Belgium and their family members are subject to the local social security system. Therefore, they are entitled to local public health insurance.
Third-country nationals posted to Belgium must have health insurance to cover their health needs and repatriation in case of emergency. Where the posting country has entered into a bilateral agreement with Belgium in regard to health insurance or a social security agreement covers health insurance, the third-country national and his or her family members are entitled to healthcare in Belgium for the full period of posting at the expense of the posting country.
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 provide a police clearance certificate.
Are sponsored employees subject to any restrictions on studying or working second or volunteer jobs?
Type-B work permits issued to sponsored third-country nationals are valid for one employer only. A second job requires a second work permit. In this context, the Council of State has confirmed that the Royal Decree of June 9 1999 does not preclude the issuance of work permits for part-time roles.
Pursuant to Article 9 of the Law of July 3 2005 as amended, third-country nationals who lawfully reside in Belgium and carry out volunteer work are excluded from the scope of the Law of April 30 2009 and its implementing decrees.
However, volunteer work is not a ground to gain residence in Belgium.
Are there any rules or standards governing the equivalence of sponsored employees’ foreign qualifications?
Only higher education qualifications are recognised in Belgium. Where the definition of ‘higher professional qualifications’ required for EU Blue Card applications is that provided under Article 2(h) of EU Directive 2009/50/EC, highly qualified workers hired under the national scheme must have obtained a four-year bachelor’s degree or higher education qualification that is relevant to the profession or sector specified in the work contract.
What are the penalties for employee non-compliance with the relevant immigration laws and regulations?
Administrative fines may be levied to EU, European Economic Area and Swiss nationals, as well as their dependents, for infringements such as:
- failure to report presence to the local administration within 10 working days of the date of entry into Belgium if the duration of stay does not exceed three months; and
- failure to initiate the local registration within three months of the date of entry if the duration of stay exceeds three months.
On December 7 2017 the Belgian government submitted to the Chamber of Representatives (the lower chamber of the Belgian Federal Parliament) a draft legislation amending the Law of December 15 1980 and partially implementing EU Directive 2008/115/EC. By analogy with the definition of ‘unlawful stay’, the draft legislation provides the following definition of ‘unlawful entry’ pursuant to the ECJ ruling in Affum (2016):
“Any third-country national who is present on the territory of a Member State without fulfilling the conditions for entry, stay or residence there is, by virtue of that fact alone, staying there illegally, without such presence being subject to a condition requiring a minimum duration or an intention to remain on that territory.”
In light of ECJ case law, the draft legislation clarifies the criminal penalties that can be imposed against illegally entering or staying third-country nationals. These penalties do not preclude the issuance and execution of return orders.
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