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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?
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.
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.
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