Work Permit for Non-EU already working in Switzerland

Visas, Permits, Passports and Naturalization
1
Hello everyone,

I need your valuable comments/feedbacks to understand what to do. I am a bit stressed as the time is short now.

Please let me explain first my situation below:

I am a Non-EU citizen and have been living in Switzerland more than 4 years. I came here to do master and after that I stayed as I got married with my current wife. She is also Non-EU but working with a contract here (B permit). So currently I have B working permit family reunification. End of the year my wife's contract will end so we need to have working permit from current employer.

I started to work in my current employer after my master study as an intern for 6 months and later they offered me a permanent contract. So I have been working here already 1.5years with working permit of family unification. My company prepared all necessary docs expect "Evidence of employer’s priority search of candidates within Swiss and EU markets". So the question is how this evidence of employer's priority search will work for my case? Should they apply without this proof?

PS: Office population and migration office told me over the phone "evidence of employer's priority search" might not applicable for my case as I have been already working here as an intern then they hired me. However, I want to be 100% sure in case of misinterpretation.

Many thanks in advance.

2

The thing is family reunification permits generally have the limitation that if the main permit holder (your wife) loses the right to their permit then so do all their dependents.

" 4.4.1 For-profit activity of family members of a foreigner (Articles 26 and 27OASA)

Art. 26 and 27 OASA provide that the priority (Article 21 LEtr) given to foreign jobseekers already in Switzerland and authorized to work does not apply to the first activity of persons entering Switzerland under the grouping. Family Law (Articles 44 and 45 LEtr). This means that, in particular, holders of a residence permit can not claim priority in respect of persons who have entered Switzerland under the heading of family reunification.

Family members of foreigners who have entered Switzerland under family reunification are not subject to the maximum numbers within the meaning of Art. 19 and 20 OASA.

Only persons entitled to family reunification can invoke the constitutional right to engage in gainful employment (ATF 123 I 212 et seq.). As a result, family members of a Swiss citizen or an established foreigner may, under 46 LEtr and 27 OASA, engage in a lucrative activity without authorization.

On the other hand, family members of a residence permit holder do not enjoy a right to engage in gainful activity. However, given the general objectives of the LEtr (better integration of the foreign population), the legislator decided not to subject the lucrative activity to authorization.

Family members of a holder of a short-term residence permit (Article 26 OASA) do not enjoy the right to exercise a lucrative activity. The exercise of a lucrative activity is subject to authorization. Upon admission, a request from the employer respecting the remuneration and working conditions in use in the locality and branch must have been submitted. In addition, members of the family of a holder of a short-stay permit (Article 26 OASA) must have professional qualifications (personal qualifications, Article 23 LEtr).

The possibility of engaging in a gainful activity for family members is related, according to art. 26 and 27 OASA, for the duration of the authorization of the person who has benefited from family reunification. If the spouse’s residence permit is not renewed, his family members can not claim a right to continue their gainful activity (Article 6 (2) OASA) ."

It’s extremely difficult to switch a non-EU B family reunification permit to a main permit. Your employer will most certainly have to go through the whole non-EU hiring criteria again to prove they can’t find a Swiss/EU national who can do the job. We have had a very few reports here on EF of non-EU’s being able to switch, but most of those reports are years old so I’ve no idea how difficult it is these days.

3
How long has your wife been working there? Is she eligible for unemployment benefits to tide you over for a while?

Yes, I believe your employer should be prepared to show they have advertised the job far and wide. Applying without having even advertising the job seems destined to fail.

The reason is that they were only able to hire you "easily" because you were on a reunification permit. If they need to hire you independently, the rules are different and the bar is higher.

4
Many thanks for your reply. My company did all paperwork except that proof and they have never posted any job openings or had a candidate until now. We have a valid permit valid until end of the year and so even if they open the job now (should stay 30days min), it will be very tight to have that proof docs to send. In this case, should we send all docs and explaining my case in the motivation letter as it is? or wait till last second and send all of them together? Do they give feedback later or reject directly? If they reject, do we have a chance to reapply or controvert? Thanks.

5
4 years. Yes she is.

Can they do job advertisement now and should we send all docs without this? Until having a feedback from them, we would have at least 30days job advertised and provide proof later. Do you think if that would work like that? Thanks.

6
That will not work as they most likely will refuse to check if documents are missing. The proof that no Swiss/EU person could be found is one of the most important requirements, as your employer should know.

7

Here are the requirements for both the employer and the potential employee:

https://www.sem.admin.ch/sem/en/home…zulassung.html

To be honest you/she should have been looking at the permit ending much earlier in the year. Depending on where she comes from she may or may not have a grace period of 3 months when she’s effectively a tourist here, but that depends on whether or not she needs a tourist visa to visit Switzerland.

Do get her to check with RAV whether she’s entitled to unemployment or not. That would certainly give you longer to sort things out.

8
If she's eligible for unemployment, then she might be able to claim unemployment and extend her (and your) B permits based on that, which then would give enough time for your employer to do a proper search for your job and hopefully rehire you and be able to prove that they couldn't find a qualified replacement from Switzerland or the EU. A clever employer would know how to tailor the job description so well to your profile that nobody else would be qualified enough.

9
Wait there's another important question.

Were you already under family reunification permit when you go hired?

If you got hired while under a study permit directly following your studies, your employer might be able to argue that you had a right to stay and priority access to the Swiss job market as a graduate of a Swiss university at the time you got hired.

10

She was doing phd so she will be entitled to RAV for 6months period with L permit only 15 hours work authorization.

11
When I got hired as an intern and later with permanent contract, I had family reunification permit.

Another thing that I did my master in specifically in the area I am working right now so if wondering if I am eligible to this exception under Art 30?

"Employment following study in Switzerland

Foreign nationals can be admitted to work without having to provide evidence of their status under the precedence rule if there is a significant academic or economic interest in their employment. This rule applies only to degrees from recognised Swiss higher education institutions (universities and universities of applied sciences)."

12

No, because that only applies when looking for a job in the first 6 months after you graduate.

13
Hello.

I think this is the permit you get to find a job during 6 months, right?

Check the conditions for this permit. One acquaintance found out until the very last it was a condition to have 10K (or 20K) CHF in the bank to qualify for the "I'm looking for a job" permit.

Caveat, this info is two years old. I've seen on the news ideas about how to make life easier for graduates of Swiss universities. Maybe, it's less complicate now.

14
Yes this is the one for her. Hope they will find a way to make it easier for graduates...

15
FWIW, national language courses are free for PhD students. I managed to learn French and wasted the opportunity to learn German for free in the university

Universities also organize job fairs and give courses on how to prepare CVs, deal with an interview and get a job. I cannot complain since I had my CV checked and tuned for CH culture, practiced in a couple fake job interviews and the student's association invited 3-4 people that worked out in the real world per year. So, I had the opportunity to ask how much income in our field, negotiation strategies, tips, etc.

Finding a job after graduation is still a challenge, but universities help a lot.

16
After many research, I found this Art. 30 k. under FNIA. I am not sure if that is applicable to my case. Already having a residence permit/working permit and working 1.5years in my current company...

Would be happy to have your opinion dear EF members.

"Derogations from the admission requirements (Art. 18–29) are permitted in order to:

k.

facilitate the re-admission of foreign nationals who held a residence or settlement permit;"

https://www.fedlex.admin.ch/eli/cc/2007/758/en