Corporate Immigration in Switzerland – Lexology & More Latest News Here – Up Jobs

General framework

Legislation

What primary and secondary legislation governs immigration in your jurisdiction?

Restrictions on cross-border movement

What laws, regulations and policies control movement across borders in emergency circumstances such as a pandemic? How have the border restrictions been implemented?

Based on article 41 of the Federal Act on Epidemics (SR 818.101), regulations on entry into Switzerland can be issued at ordinance level (eg, the Federal Ordinance on Covid-19 Regulation Measures in the field of the international movement of persons, SR 818.101.27).

International agreements

Has your jurisdiction concluded any international agreements affecting immigration (eg, free trade agreements or free movement accords)?

Switzerland has concluded the FMPA with the European Union, which is highly relevant for immigration matters. Also, the FMPA grants EU citizens the right to a work-and-residence permit in Switzerland (if they are employed by a Swiss employer or if they are non-gainfully employed but their wealth and income enables them to pay for their living costs in Switzerland).

Regulatory authorities

Which government authorities regulate immigration and what is the extent of their enforcement powers? Can the decisions of these authorities be appealed?

Immigration decisions are made by federal and cantonal authorities and they can be appealed.

Government policy

In broad terms what is your government’s policy towards business immigration?

The Swiss legal system attaches great importance to the use of the domestic workforce. Because of this, non-EU nationals may only be granted access to the Swiss labour market if the employer can prove that no EU or Swiss candidate is suitable for the vacant position. Further, a registration requirement for professions with high unemployment needs should be observed. Since 1 January 2020, employers are required to register vacancies in professions with a national unemployment rate of at least 5 per cent with the regional employment centre. The job vacancy must then be published exclusively on a specific job portal (with access for registered unemployed people only) for five working days before it can be advertised elsewhere.

Further, Switzerland has a quota system for foreign workers (non-EU local hires and assignees of all nationalities). However, the maximum numbers set annually are usually based on economic and labour market needs.

Short-term transfers

Visas

In what circumstances is a visa necessary for short-term travellers? How are short-term visas obtained?

Short-term travellers may be subject to a work permit and visa requirement depending on the nationality and activity in Switzerland.

 

Work- and residence-permit requirement

In general, and independent of its duration, any material gainful activity of non-Swiss nationals in Switzerland is subject to work and residence permit requirements. An exception applies to non-EU/EFTA (European Free Trade Association) nationals who may work up to eight days per calendar year in Switzerland without a work permit, provided that the excess of these eight days is not intended from the beginning.

Depending on the nationality of the traveller and the domicile of the employer, a simple online notification or a formal work permit application is required.

The online notification procedure is available for EU/EFTA nationals with EU-/EFTA-based employers or non-EU/EFTA nationals who have been admitted to the EU/EFTA labour market for at least 12 months for up to 90 days per calendar year and employer.

Special rules apply to UK-based employers, as they can also use the online notification procedure to notify UK nationals as well as non-UK nationals who have been admitted to the UK labour market for at least 12 months.

If the online notification procedure cannot be applied, a 120-day or four consecutive months work permit can be applied for. These permits entitle holders to work a discretionarily allocated maximum of 120 workdays in Switzerland within 12 months or up to four consecutive months. These permits are bound to a specific work location and project. Generally, a 120-day permit, as well as a four consecutive months permit, can only be obtained if the assignee can be considered highly qualified or specialised and there is no legal entitlement to receive this permit (irrespective of the employee’s nationality).

The application needs to be thoroughly justified (stating the importance of the specific employee working in Switzerland) and must be filed with the competent authority of the place of work by the legal employer in the home country (or a representative in the name of the employer). Further, the initial application shall be filed approximately three to eight weeks before the intended start date (depending on the competent authority and their workload). Only when the employee has received approval from the labour market or migration authority can they engage in work in Switzerland.

 

Visa requirement

Depending on the employee’s nationality, entry visa requirements may also apply (particularly in most non-EU national cases). Visas for working purposes are generally issued only after the application for a work permit is approved.

A non-EU/EFTA holder of a 120-day, four consecutive months’ permit must not stay in the Schengen area (including Switzerland) for more than 90 days (every day counts; not just workdays) within every rolling 180-day period. This means that whenever leaving the Schengen area, the assignee in question must not have spent more than 90 days in the Schengen area in the past 180 days (the rule follows a rolling retrospective approach).

Restrictions

What are the main restrictions on a business visitor?

In principle, every activity performed in Switzerland usually performed against a salary qualifies as gainful employment and must be notified (irrespective of being effectively performed against salary or of being value-adding (eg, attendance of group internal training sessions).

Swiss immigration law does not provide for general exceptions from this principle.

However, according to firm practice by the authorities, some activities are typically (but not always) excluded from the work permit requirement, if performed for only a few calendar days a year, namely:

• attending a seminar in Switzerland (not as a speaker);
• attending a job interview as a candidate (but not as an interviewer);
• project start meetings;
• status update meetings;
• the first meeting with potential clients in line with acquisition efforts; and
• board meetings.

 

Whether or not an individual activity qualifies as ‘material gainful work’ (and is therefore subject to a work permit) must be assessed on a case-by-case basis, taking all the facts of the specific case and the following general principles into consideration:

• if an activity to be performed in Switzerland reflects a business traveller’s main or core activity as per her or his home employment contract or the role, it is always subject to a work permit or online notification requirement;
• the more frequently an exempt activity is performed, particularly continuously, the more likely it becomes subject to a work permit or online notification requirement; and
• the less frequently an activity takes place and the less material its content is, the more likely it is exempt from a work permit requirement.

Short-term training

Is work authorisation or immigration permission needed to give or receive short-term training?

In general, a work permit is required to give training. Receiving training is, in some cases, permitted without a work permit.

Transit

Are transit visas required to travel through your country? How are these obtained? Are they only required for certain nationals?

If a traveller has valid travel documents including the documents required for entering the country of destination, has an airline ticket for onward travel and does not leave the transit area at the airport, a transit visa is normally not required. There are, however, exceptions for certain nationalities, for which a transit visa will be required. Further information can be found on the State Secretariat for Migration website (Annex CH-1, List 2). Transit visas can usually be obtained from Swiss representations outside Switzerland.

Visa waivers and fast-track entry

Are any visa waiver or fast-track entry programmes available?

Most Swiss representations offer an expedited process for entry into Switzerland on humanitarian or medical grounds (eg, an emergency appointment).

Further, subject to the purpose of the stay in Switzerland, several nationalities are excluded from the entry visa requirement. Specific nationalities (except EU-nationals) exempted from the visa requirement are listed on the State Secretariat for Migration website (Annex CH-1, List 1).

Long-term transfers

Categories

What are the main work and business permit categories used by companies to transfer skilled staff?

The main categories used are:

• the short-stay work and residence permit (L permit): issued for stays of up to one year, but can be extended up to two years; and
• the work and residence permit (B permit): issued for stays of more than two consecutive years.

Procedures

What are the procedures for obtaining these permissions? At what stage can work begin?

Switzerland grants foreign nationals access to the Swiss labour market based on a dual system. Under the Agreement on the Free Movement of Persons (FMPA), EU27 and European Free Trade Association (EFTA) nationals, regardless of their qualifications, are entitled to a Swiss residence and work permit provided that they are employed by a Swiss employer. Hence, instead of filing a formal application before entering Switzerland, a straightforward registration at the Swiss residence community upon arrival is sufficient.

Employees from all other states, irrespective of whether locally employed or assigned, as well as assigned EU27 and EFTA nationals, are subject to a formal work and residence permit application process before entering Switzerland. The application for the work and residence permit must be filed by the employer. Admittance is generally given to senior managerial staff and highly qualified or specialised professionals only. In the case of non-EU or EFTA nationals to be locally employed, evidence of earnest recruiting efforts on the domestic and EU labour market is also required, with few exceptions.

The permits must be formally applied for by the employer. The filing must be done with the cantonal labour market authority. The application should be thoroughly justified, official forms must be completed and personal documents requested. Up to four Swiss authorities are involved in the process. For employees subject to an entry visa, there is an additional requirement to collect an entry visa once all the Swiss domestic authorities have approved the application and before entering Switzerland.

The applicant can begin work as soon as the application is approved by all the relevant authorities and he or she is registered at his or her Swiss place of residence.

Period of stay

What are the general maximum (and minimum) periods of stay granted under the main categories for company transfers?

According to the practice of the Swiss authorities, permits for assignees are typically only issued for as long as the applicable social security agreement (if any) foresees an exemption of the obligation to adopt the Swiss social security system. Exceptions may be possible, subject to the individual facts of the case. However, as an assignment is to be understood as temporary, an assignment lasting more than five years must be thoroughly justified.

Processing time

How long does it typically take to process the main categories?

Depending on the canton in charge and the nationality of the applicant, the approval process by the relevant authorities generally takes from three to eight weeks.

Staff benefits

Is it necessary to obtain any benefits or facilities for staff to secure a work permit?

The holder of a Swiss L or B permit must take up residence in Switzerland (before taking up work) and obtain Swiss health insurance (90 days after arrival in Switzerland at the latest).

A residence address (appropriate accommodation, usually at least a business apartment or an apartment; hotels may be accepted in rare cases) is a requirement for stays exceeding four months.

Assessment criteria

Do the immigration authorities follow objective criteria, or do they exercise discretion according to subjective criteria?

Irrespective of the employee’s nationality, there is no legal entitlement to the granting of a work permit. Rather, the issuance of a work permit remains at the authorities’ sole discretion. The only exception applies to EU/EFTA nationals with a Swiss-based employer. These employees are entitled to a work permit based on the FMPA between Switzerland and the European Union.

The criteria for the issuance of work permits are usually the following:

• the employee is highly qualified or specialised in the field of the work to be performed in Switzerland (proof of education and an updated curriculum vitae are required);
• the employee has been employed with his or her employer for at least 12 months (for EU/EFTA nationals, exceptions may apply);
• the planned activity is in Switzerland’s overall economic interest (a thorough justification is required in terms of the need to have the foreign employee come to Switzerland);
• the employee receives at least total (gross) compensation, meeting the Swiss reference salary level requirement (ie, meeting the salary level of peers in the same industry within Swiss territory);
• assignment-related expenses for accommodation, meals and travel are borne by the employer (or, as the case may be, by the host company in Switzerland), in addition to the total compensation meeting the Swiss reference salary level;
• quotas are available (L and B permits are subject to quotas); and
• prior earnest recruiting efforts within Switzerland or the European Union must be proven (this only applies to non-EU/EFTA nationals with a local Swiss employment contract).

High net worth individuals and investors

Is there a special route for high net worth individuals or investors?

Investors or new-business incorporation

A Swiss residence permit may – apart from the usual reasons like work or a family reunion – be issued to safeguard important public interests. One such interest may be a considerable economic interest (eg, the diversification of the Swiss economy through new businesses, new job creation for Swiss and EU/EFTA nationals and new assignment creation for new businesses).

Non-gainfully employed high net worth individuals may qualify for a residence permit subject to their:

• age;
• pre-existing close ties to Switzerland; and
• wealth and annual tax burden.

Is there a special route (including fast track) for high net worth individuals for a residence permission route into your jurisdiction?

The respective legal provisions are scarce; therefore, individual requirements largely depend on cantonal admittance and authority practice and have to be assessed on an individual basis.

Highly skilled individuals

Is there a special route for highly skilled individuals?

Swiss work permits are only issued to specialists or highly qualified employees (a legal requirement). The only exception applies to EU/EFTA nationals with a Swiss-based employer, who are entitled to a work permit and need not be highly skilled to obtain a work permit.

Ancestry and descent

Is there a special route for foreign nationals based on ancestry or descent?

No.

Minimum salary

Is there a minimum salary requirement for the main categories for company transfers?

An employee assigned to Switzerland (working in Switzerland with an employer based outside Switzerland) needs to earn at least the same salary as an equally qualified Swiss employee in the same industry and the geographic area would earn (ie, the Swiss reference salary).

The relevant criteria for the individual salary determination are mainly the following:

• the guaranteed role, activity and responsibility when working in Switzerland;
• age;
• job grade;
• level of occupation (eg, 50 per cent, 80 per cent or 100 per cent);
• weekly work hours;
• qualification level (the highest academic or professional certificate);
• years of overall professional experience; and
• years of service for the applying employer.

 

The Swiss reference salary can be calculated online using the national wage calculator.

Since there is more than one calculator available, and not all Swiss cantons refer to the same salary calculator, individual clarification on the applicable calculation method or tool beforehand is always recommended.

Only the fixed gross salary is relevant. Variable salary components do not count. Usually, the authorities factor in the following gross salary elements when assessing whether or not the relevant Swiss reference salary is met, namely:

• the base salary in the home country (according to an employment agreement with the assigning home company);
• assignment allowances (serve the purpose of compensating the salary difference between Switzerland and the country of origin and form part of the salary owed to the employee);
• paid holiday;
• public holiday compensation payments;
• 13th and 14th monthly salaries (there is no obligation to pay a 13th or 14th salary to the employee unless expressly provided in collective labour agreements or standard employment agreements); and
• further payments with a salary character.

 

Moreover, travel costs, housing and food expenses in connection with the assignment to Switzerland must be reimbursed for the first 12 months of an assignment. Generally, effective expenses must be reimbursed. If it is impossible to determine the effective expenses, reference is made to lump sums. The compensation of expenses cannot be added to the salary.

Resident labour market test

Is there a quota system or resident labour market test?

Swiss L and B permits are subject to tight quotas.

Further, and with few exceptions, if a non-EU/EFTA national applies for a local Swiss position (at a Swiss employer), the employer must advertise the position within Switzerland and the European Union first. Only if the employer can sufficiently prove that no Swiss or EU/EFTA employee is qualified for the advertised position may the non-EU/EFTA national obtain a work permit (however, with no legal entitlement). Also, depending on the unemployment rate in the field of the advertised position, the employer is required to register the vacancy with the regional employment centre for a certain time before it can be advertised elsewhere. Because of this, it is usually burdensome for a Swiss employer to recruit a non-EU/EFTA national (based on a local Swiss contract).

Exceptions to this rule may apply in rare cases of, for example, a member of the management with wide-ranging decision-making authority (eg, strategic and budget). Depending on the industry, job, Swiss canton in question and all the individual facts of the case, exceptions to the labour market test may equally apply to the company’s internal cross-border transfer of indispensable specialists. However, the practice of the Swiss authorities is strict in this regard and labour market testing tends to be a requirement in most cases.

Shortage occupations

Is there a special route for shortage occupations?

No.

Other eligibility requirements

Are there any other main eligibility requirements to qualify for work permission in your jurisdiction?

Some Swiss cantons require that an employee is employed for at least 12 months with an EU/EFTA employer before he or she may be assigned to Switzerland.

Third-party contractors

What is the process for third-party contractors to obtain work permission?

EU/EFTA nationals who work as contractors and reside in an EU/EFTA country may obtain work permission (eg, they may register themselves under the 90-day online notification).

For non-EU/EFTA-nationals, it is generally not possible to obtain a work permit without an underlying Swiss employment contract. Typically, to qualify for a permit, they would have to set up a business, such as a company, in Switzerland, evidencing how their presence would have a long-term positive effect on the Swiss economy (eg, creating new jobs for Swiss nationals).

The work permit must always be applied for by the legal employer of the employee (or by a legal representative) or, in the case of self-employed staff, by the self-employed person him or herself.

Further, a work permit is always limited to the purpose that was initially described in the permit application. In the case of a changed work location or project, an amendment of the permit, an additional special-authority approval or even a new permit is usually required.

Crucially, the Swiss authorities are very careful to ensure that a person is not pretending to be self-employed. What this means in a specific case must be clarified separately. However, a self-employed person may not have an employee-like relationship with a client. This is often assumed when a contractor has only one client.

Recognition of foreign qualifications

Is an equivalency assessment or recognition of skills and qualifications required to obtain immigration permission?

Generally, translations of diplomas are only required if they are not in German, French, Italian or English.

Extensions and variations

Short-term to long-term status

Can a short-term visa be converted in-country into longer-term authorisations? If so, what is the process?

The work and residence permit application (for an L or B permit) may be filed even if the employee is already physically present and legally working in Switzerland (eg, based on an online notification or a 120-day work permit). Depending on the nationality of the employee, it will be required that the applicant collects a new entry visa (to take residence in Switzerland) outside of Switzerland before taking residence in Switzerland based on his or her new Swiss L or B permit.

Crucially, tourist or business visits, for example, may not be extended beyond the permitted stay and they give no right to take residency in Switzerland.

A pending application for conversion into a residence and work permit does not grant any entitlement to stay in Switzerland. Rather, once the allowed business or tourist visa expires, the individual must leave Switzerland and await a decision on the permit application outside Switzerland. Further, some nationals must collect an entry visa at the end of the Swiss permit application process and before taking residency and work in Switzerland.

Long-term extension

Can long-term immigration permission be extended?

L and B permits can be extended. Also, L permits can be converted into B permits. After a period of 10 years (five years, in some cases), B permits may be converted into C permits, which give permanent residency rights (however, German, French or Italian language requirements apply). Also, B permits, even if not converted into a C permit, may, in theory, be extended without limitation, provided that the underlying basis for the initial granting of the permit remains unchanged.

Regarding assignments, depending on the Swiss canton, assignments lasting longer than five years must be justified thoroughly to extend the permit once more (because assignments are, in principle, to be understood as temporary).

Exit and re-entry

What are the rules on and implications of exit and re-entry for work permits?

Employees holding a valid Swiss L or B permit can exit and re-enter Switzerland based on these permits.

Permanent residency and citizenship

How can immigrants qualify for permanent residency or citizenship?

Ordinarily, a permanent residence permit (C permit) may be granted if the applicant fulfils the following criteria:

• a stay in Switzerland of at least 10 years with a short stay (L permit) or residence permit (B permit) and uninterrupted possession of a residence permit during the last five years;
• no grounds for revocation according to article 62 and 63 of the Federal Act on Foreign Nationals (delinquency, debt management and social assistance); and
• compliance with the integration criteria.

 

In the case of successful integration or if there are important reasons, the C permit can already be applied for after having continuous residence in Switzerland for five years.

Compliance with the integration criteria means, in general, that the person making the application:

• has no delinquency and follows official orders;
• has not received social assistance in the past three years before the application;
• fulfils his or her financial obligations;
• is gainfully employed at the time the application is filed; and
• knows languages at a certain level (written and oral). (However, citizens of countries with which Switzerland has a settlement agreement do not have to provide proof of language skills.)

 

Swiss citizenship can be applied for after 10 years of residence in Switzerland, three of which must be in the five years before submission of the application while having a permanent residence permit (C permit).

End of employment

Must immigration permission be cancelled at the end of employment in your jurisdiction?

An employee who relocates back to his or her home country (or leaves Switzerland permanently) must deregister at his or her Swiss place of residence. By deregistering, the work and residence permit will be cancelled.

In most situations (for non-EU/European Free Trade Association nationals in particular), the work permit (L and B permit) is bound to a specific employer and work activity and position. Therefore, a change usually implies the requirement of a new work permit. Failure to obtain such a permit could lead to the cancellation of the Swiss permit.

Promotion into a new position may trigger the requirement to re-apply for a permit (in some cases including labour market testing); however, this is something that always needs to be assessed on a case-by-case basis and considering the individual facts of the case, such as the permit type and if the permit is tied to the employer, position, unemployment rate in the relevant field and Swiss canton in question.

Employee restrictions

Are there any specific restrictions on a holder of employment permission?

Typically, the Swiss L and B permits are bound to a specific employer, a specific position and a specific purpose of stay. Therefore, enrolling with a university in the case of an employee with a work permit may require an additional authority’s authorisation or even a change of permit.

If the employee wants to change employer or change his or her position within the company (a side shift), a new or amended work permit will usually be required. The salary is a relevant factor in work permit issuance in the first place. Therefore, only an increase in salary is acceptable from a Swiss immigration perspective.

Where a B permit is not bound to a specific employer or position, the employee is free to change positions or employer.

Dependants

Eligibility

Who qualifies as a dependant?

The following persons qualify as dependants of non-EU/EFTA (European Free Trade Association) nationals:

• a spouse or civil partner; and
• own children under the age of 18.

 

Spouses and civil partners must prove their language skills of the language spoken at their Swiss place of residence within their first year in Switzerland if they (as well as the main applicant) are non-EU/EFTA nationals. If at the time of applying for a Swiss permit, the spouse or civil partner is not yet able to prove his or her language skills through a diploma accepted by the authorities, he or she must register for a language course and enclose the registration certificate with the application.

The following persons qualify as dependants of EU/EFTA nationals:

• a spouse or civil partner and descendants (or those of their spouse) who are under the age of 21 or who are dependent on them; and
• their relatives (or those of the spouse) in ascending order who are dependent on them (not applicable to students).

Conditions and restrictions

Are dependants automatically allowed to work or attend school?

Yes, dependants are entitled to work and attend school.

Access to social benefits

What social benefits are dependants entitled to?

Persons holding a B permit (including dependants) are generally entitled to social welfare benefits in Switzerland. Whether persons holding an L permit (including dependants) are entitled to social welfare benefits depends on the competent Swiss canton.

Provided that the dependants or their working family members are covered by Swiss social security, they may also be entitled to other benefits, such as pensions, unemployment compensation and family allowances.

Other requirements, restrictions and penalties

Criminal convictions

Are prior criminal convictions a barrier to obtaining immigration permission?

The cantonal migration authorities may request a police clearance report for the applicant, which may be based on serious criminal convictions. This could result in no Swiss permit issuance.

Penalties for non-compliance

What are the penalties for companies and individuals for non-compliance with immigration law? How are these applied in practice?

Failure to comply with Swiss immigration rules may lead to fines, criminal sanctions, assignment bans, blacklisting on official publicly accessible authority websites, reputational damage, loss of employer attractiveness and employee or client trust.

According to article 9 of the Federal Assignment Act (FAA), the cantonal authority may take the following administrative sanctions:

• in less serious cases, a fine of up to 5,000 Swiss francs; or
• in serious cases of breach or non-payment of the above-mentioned fine, the employer may be forbidden to offer his or her services in Switzerland for a period of one to five years.

 

Also, criminal sanctions may be ordered (article 12 of the FAA):

• in the form of a fine of a maximum amount of 40,000 Swiss francs; or
• in the form of a fine of a maximum amount of 1 million Swiss francs if the employer, in serious and systematic cases and with the intention of self-enrichment, has not guaranteed to the employee the minimum conditions set out under article 2 of the FAA.

 

In less serious cases, the authorities may decide not to undertake criminal proceedings.

Criminal sanctions may further be ordered against an individual who enters, stays or works in Switzerland without a valid visa or a work and residence permit (article 115 of the Federal Act on Foreign Nationals). Depending on the seriousness of the case, the sanctions can range from fines to imprisonment.

In practice, on-site labour inspections may be carried out. Minor violations of the immigration regulations are usually punished with a fine (or in the case of a first-time violation of minor importance, a warning may be given). In the case of major violations, the above-mentioned more serious sanctions may be imposed.

Language requirements

Are there any minimum language requirements for migrants?

Applicants for an L or B permit do not need to show any proof of language skills. Spouses of non-EU/EFTA (European Free Trade Association) nationals, however, must prove their language skills of the language spoken at their Swiss place of residence if they receive a B permit and are non-EU/EFTA nationals.

The Swiss authorities only accept certain language diplomas for the proof of language skills, which is why a preliminary clarification with the competent authority is recommended.

If a spouse cannot yet prove his or her language skills when filing the application for a Swiss permit, he or she must register for a language course and submit the registration confirmation with the application. Usually, the spouse must obtain the requested language diploma within one year.

The language level that is currently required for spouses holding a B permit and must prove their language skills is A1 (oral only). The A1 language level means that a person can:

• interact simply in a personal environment such as at home, at work or school (of the children) provided the other person talks slowly and clearly and is prepared to help if necessary;
• introduce him or herself and others in simple terms;
• give short, simple answers to simple questions about him or herself (eg, about home, work and children); and
• express their concerns (eg, in the living environment or while shopping, in ready-made and practised sentences).

Medical screening

Is medical screening required to obtain immigration permission?

No.

Secondment

Is there a specific procedure for employees on secondment to a client site in your jurisdiction?

The Swiss L and B permits are generally bound to a specific place of work. If the employee needs to work at a client’s site, a notification needs to be submitted to the authorities and the original work permit might need to be amended.

Update and trends

Key developments of the past year

Are there any emerging trends or hot topics in corporate immigration regulation in your jurisdiction?

Recently, the number of inspections by Swiss labour authorities has increased, applying, in particular, to assignments.

Coronavirus

Coronavirus overview

What emergency legislation, relief programmes and other initiatives specific to your practice area has your state implemented to address the pandemic? Have any existing government programmes, laws or regulations been amended to address these concerns? What best practices are advisable for clients?

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