Swiss Legal Immigration Summary

von René Rey (Kommentare: 0)

The cross border provision of services into Switzerland leads to several considerations in terms of immigration issues. The following points serve to explain the distinctions between activities within gainful employment in Switzerland as well as the according action which needs to be taken to ensure that an assignee is legally able to work in the country.

Working stay of up to 8 days per calendar year

A foreigner may work in Switzerland for up to 8 days per calendar year without requiring any kind of registration or work permit approval. This is valid both for EU nationals (Art. 1 EntsV) and non-EU nationals (Art. 14 VZAE). For assignees being assigned from the EU/EFTA area (regardless of nationality), the 8 days are meant per assigning company. For assignees being assigned from outside of the EU/EFTA area, the 8 days are counted per assignee. 

Such a very short stay is ideal for short working stays, meetings, introduction courses and short trainings. For this type of short stay there are no requirements as to the employee having to have been with the employer for a certain amount of time before the visit. Non-EU nationals who require a visa to enter Switzerland also need one for this type of visit. Usually these days are taken within the scope of business visas. The employer is expected to monitor the travel activity of the employee and to be able to produce documentation with regards to time spent working in Switzerland.

Work activity (Art. 1-3 VZAE) / Business Visa

If a gainful employment according to Art. 1 – 3 VZAE is to be performed for longer than 8 days per calendar year, the work visit requires a work permit approval / registration respectively. Otherwise, a business visa is sufficient. The definition of the gainful employment (dependant and independent gainful employment as well as cross-border providing of services) is held quite wide in order to guarantee a controlled admission policy for employees from non-EU countries. 

According to this, a dependant or independent activity is always classed as gainful employment according to Art. 11 Abs. 2 AuG and Art. 1 – 3 VZAE when it is performed against remuneration. In Art. 1 Abs. 2 and Art. 2 Abs. 2 VZAE different activities are listed (though not exclusively) which are classified to be considered gainful activity. They are listed to assist in making reflections on other cases by means of comparison. Not classified as gainful employment are business meetings. See the following examples as well as the instructions (Weisungen) to the Foreigners’ Act, Ziff. 4.1.1.

 

Table 1: Examples for business meetings
Swiss Legal Immigration - Table 1: Examples for business meetings
Table 2: Examples for gainful employment
Swiss Legal Immigration - Table 2: Examples for gainful employment

Work and residence permits in Switzerland

For EU nationals and non-EU nationals who have been residing in the EU for at least 12 months prior to the assignment to Switzerland, a registration can/must be made online for assignments which are longer than 8 days and last up to 90 days per 12 months. Any foreign company based in the EU/EFTA area can assign employees to Switzerland on maximum 90 days via the online registration tool. Once those days are used and a longer working stay is necessary, the regular process for a work permit must be adhered to. For an assignment the registration must be made at least 8 days before the start date of work and the reply by the authorities confirming the registration must be awaited before starting to work. The salary and working conditions must be adhered to (see more detailed information below at point 4.). Legal basis: Art. 6 EntsG

Working stay between 90 days and 120 days duration - 120 day permit for multiple entries and exits
With the 120 day permit, a total of 120 days’ work is permitted to an assignee within the timeframe of 12 months (which do not have to be a calendar year, just 12 consecutive months). This permit type is ideal for cases where the precise duration or timing of the assignment is not already known from the start. The precise dates of the working stay do not need to be communicated to the authorities; however the employer needs to keep track of the days spent in Switzerland in order to answer any queries in connection with an audit. 

For EU nationals as well as non-EU nationals who have resided for at least 12 months in the EU are prior to the assignment, the duration of the stay within the granted 120 days is free. For those non-EU nationals who reside outside the Schengen area one must remember that the Schengen regulations limit any stay to a maximum of 90 days within 180 days. The working stays must thus respect this and be timed accordingly. For EU nationals there are no criteria as to having to have been employed at the current employer for a specific length of time before being assigned to Switzerland (though note that some cantons such as Zurich for example expect 2 – 3 years job experience in the industry). Non-EU nationals however need to have been working for the employer for at least 12 months before the assignment is to start. 

During the application process, the relevant cantonal labour authority conducts a check on the salary and the working conditions before granting the necessary approval. Do note that there is no direct legal basis for the 120 day permit. Instead it is the authorities who are granting this permit type as a variation to the 4 months permit in order to facilitate business for companies inside (as clients) and outside of Switzerland (as assigning employers). In terms of documentation, do expect to have to provide for the permit application:

► Copy of the Service Agreement between the receiver of the Service order and the place of provision of services / work in Switzerland
► Short description of the work activity
► Copy of the employment agreement abroad
► Copy of the assignment agreement
► Copy of a specific cantonal assignment form (to be signed by EU nationals if applicable for the canton of Aargau)
► Copy of the assignee’s CV
► Copy of the assignee’s passport 
► Copy of the assignee’s university diploma copy 
► Address of residence abroad (if not already covered in CV)
► (non-EU only: from which Swiss embassy the visa will be picked up from)

Working stay between 90 days and 120 days duration - Working stay for up to 120 consecutive days / 4 months
The short term permit without quota reference can be granted to assignees who are to work in Switzerland for up to 4 months. There is no registration at the inhabitants’ office. Non-EU nationals must have been working for the employer for at least 12 months before the assignment. This does not apply to EU nationals. During the application process, the relevant cantonal labour authority conducts a check on the salary and the working conditions before granting the necessary approval. Legal basis: Art. 19a Abs. 2 lit. a VZAE. 

Working stay for up to 120 consecutive days / 4 months
The short term permit without quota reference can be granted to assignees who are to work in Switzerland for up to 4 months. There is no registration at the inhabitants’ office. Non-EU nationals must have been working for the employer for at least 12 months before the assignment. This does not apply to EU nationals. During the application process, the relevant cantonal labour authority conducts a check on the salary and the working conditions before granting the necessary approval. Legal basis: Art. 19a Abs. 2 lit. a VZAE. 

Working stay between 4 months and 12 months / L permit quota-based (prolongation possible up to 24 months)
A quota based L permit is necessary for an assignee to come and work in Switzerland for a duration of anywhere between 4 months and 24 months. For EU nationals there are no criteria as to having to have been employed at the current employer for a specific length of time before being assigned to Switzerland. Non-EU nationals however need to have been working for the employer for at least 12 months before the assignment is to start. For EU nationals the entry into Switzerland is possible shortly after the permit approval, non-EU nationals need to pick up a visa to enter Switzerland for the purpose of the working stay. During the application process, the relevant cantonal labour authority conducts a check on the salary and the working conditions before granting the necessary approval. All need to register at the local inhabitants’ office before starting work. Non-EU nationals need to submit their biometric at the cantonal migration office in order for the permit cards to be established. Legal basis: Art. 32 AuG

Working stay lasting longer than 24 months, B permit quota - based
Especially on project – based assignments to Switzerland the authorities are usually hesitant to grant B permits, in particular to non-EU nationals. For projects which are shown to last long, the change from an L permit to a B permit can be applied for. Legal basis: Art. 33 AuG.

Compliance - minimum salary and working conditions

The Law on Assignments (Entsendegesetz, EntsG) regulates the requirements regarding compliance to a minimum salary and also working conditions for the employees who are assigned to work in Switzerland by foreign employers to their specification within a Service Agreement between the employer and the end client, or to work in the subsidiary of the employer or at a company which belongs to the corporate group of the employer. 

The EntsG is applicable to the online registration as well as all of the above mentioned permit types. Employers must according to Art. 2 EntsG guarantee the assigned employees at least the working and salary conditions which the Swiss law, regulations, generally agreed upon mandatory collective contracts and normal contracts (GAV and NAV) with mandatory minimum salaries (according to Art. 360a OR) in following areas:
► minimum salary
► working and resting periods
► minimum duration of holidays
► health and safety at work
► protection of pregnant employees, employees in childbed, children and young employees
► non-discrimination, specifically between men and women

The employer must also guarantee the assignee an appropriate accommodation which suffices to the usual standard with respects to hygiene and comfort (Art. 3 EntsG). The following exceptions are valid: In cases of work of small scale or when the setup or assembly of a construction is part of a delivery of merchandise and does not take longer than 8 days. In these cases the foreign employers do not need to adhere to the Swiss regulations regarding the minimum salary and the holidays. This means that according to the EntsG the employers need to adhere to the Swiss salary level for the online registration as well as the other permit types described above during the duration of the assignment in Switzerland.

Violations of the EntsG will be sanctioned as follows according to Art. 9 EntsG (extract): 
► For small violations an administrative sanction is decided which results in a fine of up to CHF 5’000
► For larger violations a ban on further services is issued for up to 5 years
► Imposition of the auditing costs
► Copy of the sanction is sent to the State Secretary of Economy, which keeps a public (internet) list of companies which have violated the Swiss law 

In addition to this the following criminal sanctions are applicable according to Art. 12 EntsG (extract): Fine of up to CHF 40’000 (unless a sanction is to be spoken for a violation which leads to a higher sanction according to the Swiss criminal code) for the:
► violation of the duty of disclosure by knowingly giving false information or refusing to inform at all 
► refusal to cooperate with regards to an audit
► refusal to follow suit to a ban on service. Art. 12 Abs. 2 EntsG states that in small cases the authorities can decide against a prosecution. 

In Art. 12 Abs. 3 EntsG it is held that a fine of up to CHF 1’000’000 can be decided upon in the case of a systematic noncompliance with the minimum conditions. 

Sgier + Partner GmbH | swiss immigration+relocation services 
Tödistrasse 67, 8002 Zurich Switzerland | phone: +41 44 228 78 90

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