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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 to work are issued only to nationals of countries that have entered into employment agreements with Belgium. Such authorisations are subject to the labour market test.
National legislation provides for different categories of third-country nationals (including highly qualified workers) who are eligible for authorisation to work under terms that derogate from the labour market test. Such authorisations are not limited to nationals of countries that have entered into employment agreements with Belgium.
Third-country nationals who intend to stay for work purposes for more than 90 days in any 180-day period must lodge an application for a single permit (ie, single procedure).
Application and receivability
The single permit procedure will be initiated by the employer on behalf of the employee. Documents to support the application will be lodged with the competent regional authority. The latter shall ascertain whether the application is receivable (ie, all the documents required are submitted).
A notification to confirm receivability or address missing documents will be sent within a maximum of 10 days of the day on which the application is received by the competent regional authority.
Failure to provide the documents missing within 15 days of the request will result in a decision of non-receivability.
Processing by authorities
Within a maximum of 15 days of the date of receivability, the regional authority may decide on the work aspect.
A negative decision made within the abovementioned delay will be notified to the employee and the employer by giving reason.
A positive decision and the complete application lodged will be communicated to the Immigration Office.
Receiving the (positive) decision and the application, the Immigration Office will decide on the residence aspect.
Provided that the Immigration Office’s decision is positive, the employee and the employer will be notified by the latter of the final decision, on both the work and residence aspects.
A negative decision on the residence aspect will be notified by the Immigration Office to the employee, by giving reason. The employer will be informed of such a decision.
Provided that the regional authority cannot make a decision on the work aspect within maximum 15 days of the date of receivability, a copy of the application will be communicated to the Immigration Office. The application will be processed in parallel by the administrations.
The Immigration Office must decide on the residence aspect within a delay of a maximum of 60 days.
A negative decision will be notified to the employee by giving reason (the employer will be informed).
A positive decision will be communicated to the regional authority.
A negative decision by the latter will be notified to the employee and the employer and will void the positive decision made by the Immigration Office.
A positive decision made by the regional authority will be communicated to the Immigration Office. The employee will be notified by the latter of the final (positive) decision on both aspects.
Lastly, failure to make a decision on the residence aspect within a maximum delay of 60 days will result in the decision being deemed to be positive.
Overall processing delay
The decision on the application will be made, within a maximum of four months, as of the date of receivability. Such delay can be extended in exceptional circumstances relating to the complexity of the demand. In the latter case, the applicant must be informed.
Failure to make a decision within four months of the date of receivability (eventually extended) will result in the authorisations of stay and work to be deemed to have been granted. Thus, the single permit will be issued to the applicant. However, in Ibrahima Diallo v Belgium (C‑246/17), the European Court of Justice ruled that the automatic grant of residence permits impairs the effectiveness of EU law.
Long-stay visas (ie, D Visas), issued to third-country nationals determine their right of entry and stay. However, they must be converted to 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?
Prior to the transposition of EU Directive 2014/66/EU, single permits and short-stay visas covering the right of work or long-stay visas are issued to third-country nationals posted in Belgium in the framework of an intra-corporate transfer, under the conditions provided for by national legislation for the posting of workers within the general framework of the provision of services.
However, pursuant to Article 288 of the Treaty of the Functioning of the European Union, an EU directive creates a binding obligation on member states to enact certain laws by a certain date. As EU Directive 2014/66/EU was due to be enacted by 29 November 2016, Article 21 thereof – which provides for the intra-EU short term mobility – satisfies the Van Gend en Loos test and as a consequence has direct effect. This direct effect determines the right of individuals to enforce the obligations created by the directive in the national courts. However, considering the estoppel reasoning, Belgium “may not rely, as against individuals, on its own failure to perform the obligations which the Directive entails” (C-148/78 Ratti (1979)).
Third-country nationals holding a valid intra-corporate transferee permit issued by an EU member state are entitled to stay in Belgium and work for any other entity that was established in Belgium and belongs to the same undertaking or group of undertakings for up to 90 days in any 180-day period, subject to the conditions set out in Article 21 of EU Directive 2014/66/EU.
Lastly, the Comprehensive Economic and Trade Agreement concluded with Canada provides for a parallel scheme.
Long-stay visas (ie, D Visas) issued to third-country nationals determine their right of entry and stay. However, they must be converted to residence permits.
Do any special rules govern secondments?
Intra-EU secondments are bound by the Act of 5 March 2002, which implemented EU Directive 96/71/EC and its enforcing directive, EU Directive 2014/67/EU, which concern the posting of workers in the framework of the provision of services.
As regards third-country nationals employed by an undertaking established in an EU member state and seconded to an undertaking established in Belgium, the Vander Elst exemption is provided for by the national legislation.
Undertakings established outside the European Union do not receive more favourable treatment than undertakings established in the territory of another member state.
Undertakings which are established outside the European Union and post highly qualified workers in that capacity are bound by the minimum wage threshold provided for by national legislation. Such a remuneration is deemed to represent compensation for the work carried out. Allowances paid for reimbursement of expenditure actually incurred on account of the posting (eg, expenditure on travel, board and lodging) cannot be considered a component of the minimum wage threshold.
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.
What ongoing reporting and record-keeping requirements apply to sponsors?
During the employment of third-country nationals, sponsors must:
- check whether they hold valid single permits or other residence permits (authorisations of stay) that allow them to work;
- keep available for inspection, at least during the term of the employment, a copy (or details) of the valid residence documents; and
- declare the commencement and end of the 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 keep and 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 must check whether any third-country national working on its premises holds a valid single permit or other residence permit (authorisation of stay) that allows them to work.
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, the labour market test will be undertaken before a single permit or other residence permit will be issued to third-country nationals intending to stay and work for more than 90 days. In addition, such permits will be issued only to nationals of countries that have entered into employment agreements with Belgium.
Exemptions apply, such as for highly qualified workers (national scheme) and those eligible for the EU blue card, provided that the minimum wage threshold and the maximum duration of occupation set out in national legislation are complied with.
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?
The regions set out the lists of shortages. The special exemptions which apply to shortage occupations mainly concern third-country nationals who hold a long-term residency permit issued by another EU member state.
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 26 March 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.
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 in exceptional circumstances.
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, in general, 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?
Authorisations to work issued to sponsored third-country nationals are valid for one employer only. A second job requires a second authorisation. In this context, the Council of State has confirmed that the Royal Decree of 9 June 1999 does not preclude the issuance of work permits for part-time roles.
Pursuant to Article 9 of the Law of 3 July 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 30 April 2009 and its implementing decrees. The Law of 3 July 2005 on volunteers’ rights was recently amended by the Law of 9 May 2018 in order to grant the right to carry out volunteer work to both third-country nationals admitted for work and those admitted for other purposes.
However, volunteer work is not currently 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.
In regard to third-country nationals, a clear definition of the concept of an ‘unlawful stay’ is provided in the ECJ’s 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.
National legislation provides the rules relating to the removal of third-country nationals who overstay unlawfully.
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