How does a NON EU/EFTA citizen obtain a residence permit/work permit for Switzerland?

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Living and working in Switzerland is still highly attractive to foreigners. In order to achieve this goal, foreigners must overcome many official hurdles. Switzerland has a tightly knit system that regulates and controls the access of foreign nationals to Switzerland. When processing applications from abroad, in Switzerland the first major step is to distinguish between citizens from EU/EFTA countries and citizens form non-EU/EFTA

countries. In the following, the rules for citizens from a non-EU/EFTA country (third-country nationals) are described in detail. We have presented the rules for citizens from EU/EFTA countries in a separate article.


Obtaining a work permit

Compared to EU/EFTA nationals, people from non-EU/EFTA countries are confronted with highly restrictive conditions for obtaining work permits in Switzerland. A distinction must be made between personal and labour market requirements. First of all, the personal requirements: Only well-qualified applicants may hope for a positive decree. Well-qualified means that they are predominantly executives, specialists and other qualified workers. The focus will always be on a person with a university or technical college degree and several years of professional experience. Furthermore, criteria such as professional and social adap-tability, language skills and the age of the person concerned must be taken into account. These personal require-ments of an individual are supplemented by the labour market requirements of the Foreign Nationals Act (FNA): (1) The admission of the person concerned should be in the general economic inte-rest of Switzerland; (2) the employer must prove that no Swiss citizen or EU/EFTA national could be found for the position in question; (3) the employer must submit a corresponding request; (4) the wage and wor-king conditions customary in the place, profession and sector must be observed; and (5) free quotas must exist.

The aforementioned provisions on obtaining a work permit are partly deviated from where migrants and refugees are concerned, since these Areas concern topics that have to be specially regulated and are influenced by international Agreements.

The different types of residence permits

In comparison to citizens from the EU/EFTA countries, the residence permit for third-country nationals does not also constitute a work permit. Applicants are often confronted with high hurdles. For the granting of work permits, reference should be made to the points set out under section A. above. The different residence permits are examined below. If nothing to the contrary is stated, the conditions for obtaining a work permit set out under section A. apply (deviations where migration is concerned).

Third-country nationals

Short-term residence permit (L Permit)

Third-country nationals staying in Switzerland for up to one year or a maximum of two years by extension must apply for a short-term residence permit (L Permit). In this respect, there are no differences to EU/EFTA

nationals. However, unlike in the case of short-term stays for EU/EFTA nationals, the Federal Council sets a maximum number of permits per year for non-EU/EFTA nationals. Once the maximum number set by the Federal Council has been reached, short-term residence permits can no longer be issued.

Residence permit (B Permit)

Third-country nationals are entitled to a residence permit (B Permit) if they wish to stay in Switzerland for a longer period of time for a specific purpose, with or without gainful employment. Please refer to the state-ments regarding EU/EFTA nationals. Initially, the permit is granted for a period of 1 year. Generally, only those who can present an intent for family reunification or a work permit will be able to benefit from such a permit.

Settlement permit (C Permit)

If a person with a residence permit (B Permit) has been resident in Switzerland for many years (5 years if the applicant comes from one of the «old» 15 EU states or 10 years if he/she is from another country), the

settlement permit (C Permit) is issued.

Residence permit with gainful employment (Ci Permit)

There is no difference compared to EU/EFTA nationals with regard to the residence permit with gainful em-ployment (Ci Permit). This permit is only open to family members (i.e. spouses and children up to the age of 25) of civil servants, members of foreign representations or members of intergovernmental organisations.

Cross-border commuter permit (G Permit)

Cross-border commuters are individuals who have their residence abroad, but who are gainfully employed in Switzerland. However, in order to obtain a cross-border commuter permit (G Permit), cross-border com-muters must return to their place of residence abroad at least once a week. In the case of cross-border

commuters from third countries, such a permit is only granted if these persons have a permanent residence permit in a neighbouring country of Switzerland and have lived in the border area for at least 6 months. The permit is issued regularly by the border canton and is only valid in that area. If the cross-border commuter wishes to change jobs, this will in turn require a permit.

Migration

Recognised refugees - Granting of asylum (B Permit)

If a person fulfils the refugee status and the national requirements regarding the granting of asylum, he or she shall be issued with a residence permit (B Permit). The same rules shall apply as for the third country

nationals referred to in section A. above. Initially, the permit will be issued for a period of one year. Exten-sions are possible. In general, a permanent settlement permit (C Permit) may then be requested after 10 years of residence in Switzerland. If integration is successful, this permit can already be issued after 5 years. Refugees may pursue gainful employment at any time. The only requirement is that the employer notifies the cantonal authorities. The authorities then check whether the employer complies with adequate wage and work conditions in order to guarantee the protection of the persons concerned.

Residence permit for temporarily admitted refugees (F Permit)

Refugees with an F Permit are considered refugees but do not fulfil the required properties in the national asylum granting process. They are thus considered rejected and must leave Switzerland in principle. How-ever, for legal and humanitarian reasons, these persons may remain in Switzerland temporarily since the expulsion/rejection process cannot be completed. The reasons can be threefold: either an unreasonable-ness (endangerment of the foreigner in case of rejection due to illness or insufficient medical care), an inadmissibility if the rejection violates mandatory international law (e.g. prohibition of non-refoulement) or an

impossibility for technical reasons (lack of travel documents). In this sense, the F Permit for refugees is not a permit, but merely a confirmation of the absence of the possibility of rejection. Only for this reason persons concerned may remain in Switzerland. This permit can also be issued to a third-country national who does not fulfil the refugee status but cannot be rejected for the same reasons. Since 1 January 2019, refugees with this permit may pursue gainful employment by means of simplified notification to the cantonal authori-ties in accordance with Art. 85a AIG. However, the employer must prove in the notification that adequate wage and working conditions have been observed. The right to temporarily remain in Switzerland can be granted for a period of 12 months. After this period has expired, an extension is possible.

Asylum seekers/migration (N Permit)

Refugees have a special residence status because of their need for protection. Based on international law, asylum seekers are granted the right to be present in the respective country of protection. Upon arrival in

Switzerland, asylum seekers are issued with the N Permit. All Persons who are currently in the asylum procedure are entitled to it. Strictly speaking, it is not a residence permit, but a mere right of presence or

toleration of their presence. Asylum seekers are subject to an absolute ban on gainful employment for the first three months of their presence in Switzerland from the date on which they submit their asylum appli-cation. An extension of the ban for another 3 months is possible. After the expiration of this period, there is the possibility of admission to gainful employment. In this case, the following requirements must be obser-ved: (1) Employment is possible on the basis of the current economic and employment situation; (2) an application has been made by an employer; (3) priority is given to Swiss nationals; (4) the wage conditions and working conditions customary in the locality and Industry are observed and, under certain circumstan-ces, (5) compliance with other cantonal regulations is ensured.

Vulnerable persons (S Permit)

Same as asylum seekers, vulnerable persons may temporarily reside in Switzerland as holders of the S Permit. However, this permit does not constitute a right of residence with a certain a period of validity, but merely an admission for reasons of protection, for example in civil war situations, provided that the person

concerned belongs to the group designated accordingly by the Federal Council. If the need for protection ceases, the person is obliged to leave Switzerland. However, they are not allowed to cross the Swiss border again or return to Switzerland if they leave. In contrast to asylum seekers, no procedure is initiated to ass-ess refugee status. The initial duration of the S Permit is limited to 12 months. With regard to the employ-ment opportunities of vulnerable persons, reference should be made to what has been mentioned regarding asylum seekers. Vulnerable persons are also subject to the 3-month ban and the subsequent requirements for taking up gainful employment.

Conclusion

The explanations given above make it evident that the obtaining of a residence and work permit in Switzer-land as a third-country national is subject to high hurdles. Above all, it is important to obtain the necessary information from the relevant migration offices and to submit the necessary notifications in good time.

 

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