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Site contribution
Date: September 2015
Prepared by:
Michèle Stutz, LL.M., Attorney at Law, Partner
Certified Specialist SBA Employment Law with profound experience in all kind of employment and immigration law matters
MME Legal | Tax | Compliance
Kreuzstrasse 42
8008 Zurich
Phone:   +41 44 254 99 66
Fax:   +41 44 254 99 60
E-Mail:   michele.stutz@mme.ch
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.
Basic Principles of Swiss Immigration Law
Immigration law in Switzerland is currently undergoing a process of constant change. With respect to workers' mobility, the situation on the Swiss labour market has significantly 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 (including EFTA) nationals ("EC-Nationals"). Since Switzerland has basically a dual system for the admission of foreign potential workers/residents, there are numerous distinctive differences between the regulatory workers' 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 workers' mobility for both groups of persons below. To summarize, EC-Nationals can benefit from agreements on the free movement of persons. With regard to Third Country Nationals, as a principle, only a limited number of management level employees, specialists and other qualified employees can get a work permit.
Please note that there will be a major change in Switzerland's immigration system leading to a new legislation implemented within the next year. The new legislation will most probably provide for a limitation of the immigration by quantitative limits and quotas for all nationals. For more information, please visit:
https://www.news.admin.ch/message/index.html?lang=en&msg-id=51983
https://www.sem.admin.ch/sem/en/home/themen/fza_schweiz-eu-efta/umsetzung_vb_zuwanderung.html#
Please also note, that after the Brexit vote in the UK, it is currently difficult to predict what impact the referendums "leave vote" will have on immigration. The referendum result is unlikely to have an immediate effect on immigration, as the full impact will not be evident before negotiations with the EU are concluded. Until the UK formally leaves the EU, UK nationals will continue to enjoy free movement of persons. Afterwards, UK nationals will have to be treated like all other non-EU nationals, unless Switzerland enters into a bilateral agreement with the UK regarding immigration matters.
I. Third Country Nationals, including US Nationals
Since there are no agreements on the free movement of persons, it is generally 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 usually 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.
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. Nevertheless, they do need a visa from the first day on if they want to work in Switzerland.
For a complete and detailed list of the Swiss visa provisions for all countries, please refer to the following website:
http://www.bfm.admin.ch/bfm/en/home/themen/einreise/merkblatt_einreise.html
In general, Third Country Nationals need a residence and work permit upon entering the country. 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 summarized as follows:
In principle, the employer has to demonstrate that no local employee and no employee from the EC can cover the vacant position. The employer 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.:
  • executives or qualified specialists of internationally operating firms within the scope of an intracompany transfer; and
  • executives or highly qualified specialists who are indispensable for important research projects, or essential for the fulfilment of extraordinary assignments.
    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.
    For Third Country Nationals, particularly the following permits are issued:
    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 without gainful employment. Granted the first time, it is usually limited to one year. However, once such permit has been granted, under certain conditions it can be renewed every year. Permits B are subject to quotas.
    Permit C (settlement permit): After ten years of 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. US nationals are subject to a special regulation.
    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.
    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.
    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 a 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 obtaining a residence and work permit.
    The employee may not enter Switzerland during the application process. It is not possible to get the visa from an authority in Switzerland but it must always be issued by a Swiss Embassy abroad.
    II. EC-Nationals
    From June 1, 2016 all EC-Nationals, except citizens from Croatia ("25 EC" and "2 EC- Bulgaria and Romania, hereafter "27 EC")(1), regardless of their qualifications, are granted easy access to the Swiss labour market under the Agreement on the Free Movement of Persons.
    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 more than three months, or if they plan to work in Switzerland, a residence permit is needed.
    Nationals from the 27 EC 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 sufficient financial means to support themselves. Thus, if someone has either a gainful employment, is self-employed or has the sufficient financial means to support themselves, a permit normally is granted.
    For EC-Nationals, particularly the following permits are issued:
    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.
    C EC/EFTA permit (Settled foreign nationals): After five or, depending on the home country, 10 years of 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.
    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 the 27-EC-Nationals there are no border zones any more. This means that they may have their place of residence anywhere 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. For citizens of Croatia boarder zones still remain.
    L EC/EFTA permit (Short-term residents):
    - 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.
    - For nationals from the 27 EC States employment relationships of up to three months within a calendar year do not require a permit (however, there is a registration procedure).
    The principle of the free movement of all EC-Nationals gets accomplished over a certain period of time. It 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 in Switzerland after retirement.
    Since May 31, 2014 the principle of free movement fully applied to the citizens of the 25 EC States. For employed citizens of Bulgaria and Romania temporary regulations, such as the principle of the priority of local employees, the control of working condi-tions, as well as quotas applied until May 31, 2016. New quotas might be established until May 31, 2019, provided immigration should increase by more than 10% (so-called "safeguard clause").
    Croatia joined the EU on July 1, 2013. However, with the adoption of the Mass Immi-gration Initiative, Switzerland was no longer in a position to sign the related Protocol III in its current form. In February 2015 Switzerland and the EU agreed on a mutually amenable solution and Switzerland signed Protocol III. Until Protocol III comes into effect, for Croatian nationals the principle of free movement does not apply. However, Switzerland will continue to apply the same quotas for Croatian nationals that they would have received if Protocol III had been ratified by the Swiss Parliament. Access to the Swiss labour market will remain subject to the provisions of the Foreign Nationals Act (FNA). This will remain valid until a comprehensive solution in the area of free movement of persons between Switzerland and the EU is found or until February 9, 2017 at the latest.
    Schematically, the different phases until free movement of persons will be fully real-ized with respect to the citizens of all EC countries can be summarized as follows:
    A: Free movement of persons with some restrictions: Quota regime is in force, priority of own nationals, prior control of salaries and working conditions
    A*: Only quota regime is in force
    B: Free movement of persons, but under certain conditions quotas can still be reintroduced
    B*: Reintroduction of quotas (application of the safeguard clause)
    C: Completely free movement of persons
    D: Separate quotas, priority of own nationals, prior control of salaries and working conditions
    Please note that on March 4, 2016, the Federal Council submitted to Parliament sev-eral pieces of draft legislation on foreign nationals and additional measures to make better use of the potential workforce within Switzerland. Since it has not yet been possible to reach an agreement with the EU, the Federal Council is now proposing an unilateral safeguard clause to control immigration that will allow to fix annual limits if immigration exceeds a certain level. An overall assessment of the implementation of the new constitutional provision will only be possible once the results of the negotiations on the amendment of the Agreement on the Free Movement of Persons are available and the accompanying measures have been taken into consideration.
    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 country 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.
    III. Frequently Asked Questions
  • How long does it take for a residence and work permit to be issued?
    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.
  • I am a Third Country National who will work / works in Switzerland. Can I (easily) get a permit for partner and children?
    If a Third Country National gets a residence and work permit, his/her partner and children generally are issued a permit as well under the conditions that they live together, have an apartment (or a accurate place to live) and are not dependent on social benefits.
    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 ap-proval of the residence and work permit or the formation of the family relation – the Third Country National has to prove the existence of important family reasons.
  • What documents need to accompany a request for a residence and work permit?
    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, 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 the employer) or employee transfer confirmation by the employer stating salary, expatriation allowance and expense allowance as well as the detailed reasoning for the application.
    IV. Useful Links
  •  
  • Official information for Third Country Nationals regarding labor / work permits
  •  
  • Official information regarding the entry into Switzerland
  •  
  • Official information for EC-Nationals regarding labor / work permits
  •  
  • Integration Office FDFA/FDEA
  •  
  • State Secretariat for Economic Affairs SECO
    Footnotes
    1. The initial 15 EC plus 5 EFTA : Austria, Belgium, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Luxemburg, Netherlands, Portugal, Spain, Sweden, United Kingdom plus Cyprus Iceland, Liechtenstein, Malta and Norway. The 8 EC: Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia and Slovenia. The 2 EC: Bulgaria and Romania. Please note: Croatian nationals are subject to separate quotas on access to the Swiss labour market. The admission of Croatian nationals to Switzerland is therefore still subject to the provisions of the Foreign Nationals Act.