The State Secretariat for Migration adopts new guidelines to improve the flexibility of (some) permit application processes

In its latest update of its guidelines on the Federal Act on Foreign Nationals and Integration, the State Secretariat for Migration (SEM) has incorporated the Federal Council's response to a parliamentary postulate calling for an improvement in the immigration management regime for non-EU nationals in order to better adapt it to the needs of the Swiss economy, particularly in high-tech sectors where there is a shortage of local workforce.

The following improvements are of particular interest.

Alleviation of order of priority rule for certain occupational areas

As a rule, an employer willing to recruit a candidate who is not a Swiss or an EU or EFTA national has to comply with the order of priority rule and demonstrate that he was unable to find a suitable candidate on the Swiss and EU labour markets.

According to the updated guidelines, such rule can be alleviated in occupational areas affected by a structural shortage of highly skilled workers. In these areas, there has to be room for flexibility in the application of the provisions in question and the authorities responsible for assessing work permits applications may waive the requirement that the employer provides evidence of the searches it has carried out. Instead, the concerned employer may simply state that the application relates to a position for which there is a shortage of workforce.

As it stands today, the following occupational areas are concerned:

• managers in the fields of information and communication technology, consulting, finance and insurance, machinery, electrical equipment and metallurgy, chemical and pharmaceutical production and food industry;
• engineers, scientists and researchers in the fields of mathematics, nature and technical sciences as well as information and communication specialists (e.g. database and network specialists, network and computer systems technicians);
• health professions: specialist doctors, assistant doctors, specialist nursing staff (e.g. in surgical, acute and emergency care), radiology assistant staff;
• university teaching staff.

It stems from this list that, in line with the willingness to have a more flexible approach, work permits may be granted for jobs that do not necessarily require a university degree (non-academic occupations) or if a person has just completed his studies and does not yet have the required professional experience.

Over time, the list of concerned areas will of course evolve and an employer looking to recruit a non-Swiss or non-EU national should check whether his sector of activities is included.

It should be noted however that, in any case, the immigration authorities will remain competent to decide whether the particular position falls into one of these categories and might request proof that the order of priority rule has been complied with. Time will show how the authorities will apply the updated guideline in practice.

Transition from employment to self-employment

The holder of a B permit willing to engage in self-employment must submit an application to the immigration authorities and notably demonstrate that the contemplated activity is in the economic interests of Switzerland.

The new guidelines now provide that, within the process, it has to be taken into account that this person has already been in Switzerland for some time and is therefore already integrated into society and the labour market and should not be treated as a newly arriving self-employed applicant.

In particular, in order not to unnecessarily impede this person’s potential for innovation and ability to build up a sufficient and independent source of income, when assessing such applications, the demanding criteria of general economic interest can be applied more flexibly than for newly arrived self-employed persons. The examination procedure must take into account the applicant's training and professional experience.  These rules however only apply to persons who have been granted a B permit with no restrictions or conditions.

In case you have any questions on the above or any other Swiss immigration question, please do not hesitate to contact Christophe Levet.