Luxembourg business immigration handbook outline

Transcription

1 Luxembourg business immigration handbook outline What is Luxembourg s general policy toward business immigration? In Luxembourg the conditions for admission and residence of immigrants are governed by the law of 29 August 2008 concerning the freedom of movement of persons and immigration applicable since 1 October 2008 and as amended subsequently (hereinafter the Immigration Act ). First, it should be pointed out that the Immigration Act as well as the Luxembourg authorities are very favorable to the immigration of skilled applicants and the development of new business activities in Luxembourg. Since business related immigration is considered a national priority, the Immigration Act proves to be well adapted to business needs and reflects the ambition of the Luxembourg authorities to attract foreign talent and new business. The different amendments made to the Immigration Act over time aim to achieve the best possible adaption of the legal framework to business immigration. Further, it should be noted that the Immigration Act, in accordance with applicable European regulations, eases immigration by nationals of the Member States of the European Union (hereinafter the EU ) and assimilated countries, i.e. Member States of the European Economic Area (Norway, Iceland and Liechtenstein) and the Swiss Confederation. As a matter of principle, nationals of the aforementioned countries are allowed to legally reside and work in Luxembourg without being required to obtain specific authorisations prior to the commencement of their activity, whereas foreign nationals from third country States (hereinafter Foreign Nationals ) are required to obtain a valid residence authorisation (autorisation de séjour) before they may legally work and reside in Luxembourg. An additional distinction must be made as to the contemplated duration of the stay in Luxembourg: immigration for a period not exceeding three months triggers less formalities than long-term immigration (i.e. for a period exceeding three months). Furthermore, the Immigration Act provides for the general principle that the employment of Foreign Nationals must not prejudice the priority of the employment of EU nationals and must be in the economic interest of Luxembourg. Therefore, an employer may, in principle, only conclude a contract of employment with a Foreign National provided the employment market test is satisfied, that is to say where there is a shortage of potential jobseekers from EU Member States. In order to encourage business immigration, highly qualified employees (as defined by the Immigration Act) are excluded from this requirement.

2 As regards immigration of Foreign Nationals, the Immigration Act provides for different categories of residence authorisation (e.g. for employed persons, highly skilled employees, self-employed persons, sportsmen, research professors or for private reasons). The Luxembourg approach facilitates the immigration of some of these categories, especially favoring the admission and residence of highly qualified employees and immigrants developing new business opportunities in Luxembourg. How do business visitors obtain temporary entry for non-employment purposes, such as to attend meetings, conferences, and so forth? EU nationals and nationals of assimilated countries have the right to enter the territory of Luxembourg and to stay for up to three months if they are holders of either a valid identity card or a valid passport. Foreign Nationals who wish to enter Luxembourg and to reside on Luxembourg territory solely for purposes such as to attend meetings or conferences, i.e. for a maximum period of up to three months, must hold a valid passport as well as, if need be, the required visa and satisfy, amongst others, the following conditions: not have been refused admission based on the Schengen Agreement; not have been refused entry into Luxembourg for any reason whatsoever; not constitute a menace to the public; be able to justify the reasons for, and conditions of, the anticipated stay and provide proof of sufficient financial resources for the period of the stay and guaranteed resources for the return to the country of origin; and be in possession of a valid passport for at least six months and, where applicable, any required visa issued by one of the countries of the Schengen area. To find out if the concerned business visitor needs to obtain a visa, he/she should consult the diplomatic or consular representation for Luxembourg in the country of origin or the list of countries and visa requirements published on the website of the Luxembourg Ministry of Foreign Affairs ( Where a visa obligation applies, he/she should apply for a short stay visa by submitting a completed and signed Schengen visa application, accompanied by a number of predetermined documents, to the diplomatic or consular representation for Luxembourg in his/her country of residence. Such short stay visa entitles the visitor to stay in the Schengen area for 90 days without interruption or for 90 days accumulated in stages over 6 months. Please visit the following web-site for further information: 2/7

3 What visa options are available for the temporary employment of foreign nationals in professional/management level occupations? A distinction needs to be made as to the citizenship of the contemplated hire, the duration of the stay on Luxembourg territory as well as the functions performed: EU nationals as well as nationals of assimilated countries are not subject to any visa requirement. As regards the employment of Foreign Nationals for a period not exceeding three months, a distinction needs to be made on the basis of the activity performed by the employee on Luxembourg territory. The employment of Foreign Nationals, even for a period not exceeding three months, triggers, in principle, the obligation to obtain a valid work permit. Nevertheless, this obligation does not apply where the work performed in Luxembourg qualifies as any of the following: business trip, visit of business partners, research and development of professional contacts, negotiation and closing of contracts, participation in administrative councils and general meetings of companies or service provision within the same group of companies (excluding the provisions carried out under subcontracting). Foreign Nationals who wish to enter Luxembourg and to reside on Luxembourg territory for a period of more than three months and/or carry out paid work are required to apply for a valid residence authorisation. Within this framework, the Foreign National (whether he/she is subject to a visa obligation or not), must first apply for a temporary residence authorisation, prior to his/her entry onto Luxembourg territory, i.e. from his/her home country. The application must, amongst others, be accompanied by the following documents (translated into French, German or English): a certified copy of the passport; a valid birth certificate; a police clearance certificate; a curriculum vitae, a certified copy of all university diplomas or professional qualifications; a certified copy of the original employment agreement dated and executed by the employer; and a motivation letter explaining the applicant s reasons for coming to Luxembourg. As mentioned above, the Immigration Act provides for different categories of residence authorisations; the relevant requirements depend on the category of residence authorisation concerned. Please visit the following websites for further information: 3/7

4 What visa options are available for the temporary employment of nonprofessional employees? No specific limitations apply to EU nationals or nationals of assimilated countries. A Foreign National wishing to work and reside in Luxembourg as a non-professional employee (as opposed to a highly qualified employee) may obtain a residence authorisation as an ordinary salaried employee. Notwithstanding the formal requirements applicable to the long-term employment of any Foreign National, the employer may only conclude a contract of employment with a Foreign National who is not a highly qualified employee if such employer has not received any suitable offers from jobseekers with priority for recruitment, e.g. EU nationals. In order to verify the availability of jobseekers within the EU, the employer shall declare the vacant position to Luxembourg s Employment Administration (hereinafter ADEM ). Where the employer has not been presented with a suitable candidate within a reasonable period of time, he/she may request a certificate from the ADEM granting the right to hire a foreign national. Such certificate shall be appended by the Foreign National to his/her application for a residence authorisation as an ordinary salaried employee. Please visit the following websites for further information: What visas are available for foreign entrepreneurs and/or business investors? No specific limitations apply to EU nationals and nationals of assimilated countries. The immigration of entrepreneurs and/or business investors who consider taking up a professional activity as self-employed persons (contrary to employees employed under an employment contract) for a period not exceeding three months is subject to the requirements mentioned above and applicable to employees (e.g. visa requirement). The foreign entrepreneur and/or business investor is subject to the requirement of a formal residence authorisation, except where his/her visit qualifies 4/7

5 as any of the following: business trip, visit of business partners, research and development of professional contacts, negotiation and closing of contracts, participation in administrative councils and general meetings of companies or service provision within the same group of companies. Foreign entrepreneurs and/or business investors who consider taking up a professional activity for a period exceeding three months are subject to a residence authorisation. They may enter Luxembourg territory under the category of selfemployed person. In order to obtain a residence authorisation, a self-employed person (or company owner requiring a business license or comparable authorisation) from a third country state must, amongst others, be able to prove: relevant qualifications in view of the contemplated activity (e.g. business license or other authorisation needed or confirmation by the competent authority that the necessary conditions in order to perform the activity are satisfied); that he/she has sufficient resources to maintain and ensure the sustainability of his/her activity (e.g. business plan and financing plan); and that such self-employed activity is in the economic interest of Luxembourg and meets a demand of the local market. Please visit the following websites for further information: What is the process for obtaining permanent residency based on employment? No specific limitations apply to EU or nationals of assimilated countries. Foreign Nationals must in a first step apply for a residence authorisation from their country of residence. Within three months as of the date of receipt of the residence authorisation, the Foreign National shall submit the application for a visa or, where no visa obligation applies, enter Luxembourg within such time limit. Upon arrival in Luxembourg, the Foreign National must officially declare his/her arrival at the municipal administration of the place at which he/she intends to reside and is required to undergo a medical examination. Within three months of his/her arrival in Luxembourg, he/she must follow the procedure to obtain an official residence permit (titre de séjour). Such official 5/7

6 residence permit is granted for a limited duration of time and is renewable upon request. Its period of validity depends on the category under which the Foreign National works and resides in Luxembourg (e.g. employed person, self-employed person, sportsman, research professor or for private reasons). The Foreign National who can prove lawful residence for an uninterrupted period of five years on Luxembourg territory may apply for a long-term residence permit. Such long-term residence permit is valid for a period of five years and is renewable on request. The holder is entitled to work in any sector and in any profession. Please visit the following website for further information: How may a foreign national pursue citizenship? A Foreign National may request Luxembourg citizenship through naturalisation (i.e. long-term residence on Luxembourg territory) under several conditions, amongst others: he/she has been the holder of a Luxembourg residence authorisation for at least seven consecutive years immediately preceding the application and has been actually residing in Luxembourg during that entire period; he/she has reached 18 years of age on the day of submitting the application; he/she has followed three civic instruction courses; he/she has passed an exam testing knowledge of the Luxembourg language; and he/she meets the integrity requirements, that is to say: has not made false statements, hidden important facts and/or acted fraudulently within the scope of his/her application; has not been sentenced, in Luxembourg or another country, to a criminal penalty or imprisonment for a period of one year or more for an action that constitutes a criminal offence under Luxembourg law, except where the penalty has been definitively executed more than 15 years before submission of the application. The application, addressed to the Minister of Justice and accompanied by a certain number of supporting documents, must be submitted to the municipal administration of the place of residency which will pass on the application to the Minister of Justice. It should also be highlighted that Luxembourg accepts the principle of double nationality. It is likely that the currently applicable Nationality Act of 23 October 2008 will soon be substantially amended. 6/7

7 Please visit the following website for further information: EN.pdf What immigration-related compliance concerns do employers of foreign nationals face? Pursuant to Luxembourg law any employer employing Foreign Nationals must verify whether the concerned employees meet all the applicable legal requirements in order to perform the contemplated activity on Luxembourg territory. It should be pointed out that any employer employing an illegal immigrant incurs serious sanctions, such as criminal fines and imprisonment, as well as the interdiction to practice his/her professional activity and the temporary or permanent closure of business. It is thus crucial that the employer verifies whether the Foreign National holds the required authorisations before the person concerned starts working. The Department for Foreigners of the Ministry of Foreign Affairs, in charge of applications concerning immigration, may be contacted as follows: 12-16, avenue Monterey L 2163 Luxembourg B.P. 752 Phone: (+352) Website: For further information on the immigration of third country nationals, please click on the following links: schmit/brochure-en.pdf 7/7