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| Talacker 41, 8001 Zurich, Switzerland, Phone: +41 43 443 72 00, Fax +41 43 497 22 70, info@amcham.ch |
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| Site contribution |
| Date: |
August 2009 |
| Prepared by: |
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| Caution: |
This summary is an overview only. In particular regarding Third Country Nationals, including US nationals, Swiss immigration law contains a lot of exemptions to general rules. For a smooth permit application process, it is highly recommended to seek professional advice. |
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Basic Principles of Swiss Immigration Law |
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Immigration law in Switzerland is currently undergoing a process of constant change. With respect to worker’s mobility, the situation on the Swiss labour market has signifi-cantly changed during the last few years from a very regulated, rather restrictive regime to a more and more liberalized regulatory framework, particularly with respect to EC (in-cluding EFTA) nationals ("EC-Nationals"). Since Switzerland basically has a dual system for the admission of foreign potential workers/residents, there are numerous distinctive differences between the regulatory worker’s mobility framework for EC-Nationals (see II below) and citizens of other countries than the EC (including US citizens: "Third Country Nationals"; see I below). You will find an overview of the general principles on worker’s mobility for both groups of persons below. To summarize, EC-Nationals can benefit from agreements on the free movement of persons. As regards Third Country Nationals, as a principle, only a limited number of management level employees, specialists and other qualified employees can get a work permit. |
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I. Third Country Nationals, including US Nationals |
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Since there are no agreements on the free movement of persons, it is basically more difficult to obtain a residence or work permit for Third Country Nationals than for EC-Nationals. As regards the terminology, please note that Third Country Nationals usu-ally need - in addition to a residence and work permit - a visa. The Third Country National must receive the visa before entering Switzerland. It is usually issued by the foreign Swiss Embassy after the application for a residence and work permit has been examined by the Swiss Immigration Authorities. |
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| 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. However, they do need a visa from the first day on if they want to work in Switzerland. |
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| For a complete and detailed list of the Swiss visa provisions for all countries, please refer to the following website: |
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| http://www.bfm.admin.ch/bfm/en/home/themen/einreise/merkblatt_einreise.html |
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| In general, Third Country Nationals need a residence and work permit from the first day being in Switzerland. A work permit for Third Country Nationals, in particular US 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 on a case by case basis. The main principles can be summa-rized as follows: |
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| Basically, the employer has to demonstrate that no local employee and no employee from the EC can fill in the vacant position. He must show that he has searched for possible employees on the local market in vain. However, this principle of the priority of local employees does not apply in some exceptional cases as e.g.: |
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executives or qualified specialists of internationally operating firms within the scope of an intracompany transfer; and |
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executives or highly qualified specialists who are indispensable for important re-search projects, or essential for the fulfilment of extraordinary assignments. |
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| 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. |
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| 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 with-out gainful employment. Granted the first time, it is usually limited to one year. How-ever, once such permit has been granted, under certain conditions it can be renewed every year. Permits B are subject to quotas. |
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| Permit C (settlement permit): After ten years’ 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. |
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US nationals are subject to a special regulation. |
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| Permit G (cross-border commuter permit): Foreign nationals who are resident in a foreign border zone and are gainfully employed within the neighbouring border zone of Switzerland may apply for this permit. |
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| Permit L (short-term residence permit): Third Country Nationals have to 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. |
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| 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 Em-bassy abroad to issue a visa as soon as the Cantonal Authority is ready to issue a residence and work permit. 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 ob-taining a residence and work permit. |
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| The employee may not enter Switzerland during the application process. It is not pos-sible to get the visa from an Authority in Switzerland but must always be issued by a Swiss Embassy abroad. |
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II. EC-Nationals |
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| EC-Nationals, (i.e. the citizens of the initial 15 EC States(1) including Cyprus and Malta(2)) regardless of their qualifications, are granted easy access to the Swiss labour market under the Agreement on the Free Movement of Persons. |
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| EC-Nationals may stay in Switzerland as a tourist for up to three months without a residence permit. If EC-Nationals plan to stay in Switzerland for longer than three months, or if they plan to work in Switzerland, a residence permit is needed. |
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EC-Nationals (at least the citizens of the initial 15 EC States including Cyprus and Malta) 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 suffi-cient financial means to support themselves. Thus, if someone has either gainful em-ployment, is self-employed or has sufficient financial means to support themselves, a permit normally is granted. |
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| For EC Nationals, particularly the following Permits are issued: |
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| B EC/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. |
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| C EC/EFTA permit (Settled foreign nationals): After five or, depending on the home country 10 years’ 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 EC/EFTA permit. |
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| G EC/EFTA permit (Cross-border commuters): EC Nationals who are resident in a foreign border zone and are gainfully employed within Switzerland’s neighbouring border zone may apply for this permit. They must return to their place of residence abroad at least once a week. For Nationals of the initial 15 EC countries, there are no border zones any more. This means that they may have their place of residence any-where 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. |
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| L EC/EFTA permit (Short-term residents) |
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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. |
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For nationals from the initial 15 EC States inclusive Cyprus and Malta, employment relationships up to three months within a calendar year do not require a permit (however, there is a registration procedure). |
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| The principle of the free movement of all EC Nationals gets accomplished over a cer-tain time period. Today, the principle of free movement basically applies to the citi-zens of the EC-15 as well as to the citizens of Malta and Cyprus which involves the right to immigrate into Switzerland, to reside here, to bring the family , to seek access to employment, to settle down as self-employed persons and, should the situation arise, to remain there after retirement. |
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| For the EC-8(3) as well as Bulgaria and Rumania, a more restrictive system applies. The principle of the priority of own nationals still applies. This means, that the Swiss employer has to show that he could not find an equivalent employee on the national labour market. After five resp. seven years, the quota period (see “A” in the scheme below) gets replaced by a so called protection period (see “B” in scheme below) of another seven resp. three years. If certain requirements get fulfilled during this period, a quota system may be introduced again. At the end of the protection period, there will be a completely free movement of persons (see “C” in table below) between Swit-zerland and the respective EC countries. |
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| Schematically, the different phases until free movement of persons will be fully realized with respect to the citizens of all EC countries can be summarized as follows: |
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| A: |
Free movement of persons with some restrictions: Quota is in force, priority of own nationals, prior control of salaries and working conditions |
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Free movement of persons, but under certain conditions quotas can still be reintroduced |
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Completely free movement of persons |
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| Source: Leaflet to the Free Movement of Persons from the Integration Office of the Swiss Confederation, 29. May 2009 |
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As regards social security, there are detailed rules in force providing that claims that were once acquired are not lost when a worker carries out an activity in another state. Each state 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. As far as the new member states are concerned, there are already social security agreements with five of these countries (Cyprus, Hungary, Czech Republic, Slovenia and Slovakia). |
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Frequently Asked Questions |
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How long does it take for a residence and work permit to be issued? |
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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. |
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I am a Third Country National who will work / works in Switzerland. Can I (easily) get a permit for partner and children? |
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If a Third Country National gets a residence and work permit, his/her partner and children generally get a permit as well under the conditions that they live to-gether, have an apartment (or a accurate place to live) and are not dependent on social benefits. |
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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 fam-ily relation – the Third Country National has to prove the existence of important familial reasons. |
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What documents need to accompany a request for a residence and work permit? |
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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, basically 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 and in the European Employment Services cooperation network, 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 employer) or employee transfer confirmation by the employer stating salary, expatriation allowance, and expense allowance, detailed reasoning for application. |
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Useful Links |
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Footnotes |
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| 1. |
Belgium, Denmark, Germany, Finland, France, Greece, Great Britain, Ireland, Italy, Luxemburg, the Netherlands, Austria, Portugal, Sweden, Spain, Island, Norway. |
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| 2. |
Please note that for citizens of Poland, the Czech Republic, Slovakia, Hungary, Estonia, Latvia, Lithuania and Slovenia, who wish to work in Switzerland, specific regulations apply until April 2011. Nationals from Rumania and Bulgaria are also subject to special interim provisions. At the moment, their status is still comparable to Third Country Nationals. |
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Poland, the Czech Republic, Slovakia, Hungary, Estonia, Latvia, Lithuania and Slovenia. |
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