Swiss work permits and the priority process

Following the acceptance of the initiative “Against Mass Immigration” (February 2014), the Swiss Parliament adopted the revision of the law on Foreigners and Integration (LEI), mainly aiming at implementing these newly adopted political policies.

The priority process aims to give an advantage to domestic job seekers registered at a regional employment agency and therefore reduce unemployment in Switzerland (TAF C-106/2013).

Quick reminder of the priority procedure

The articles 18c et 21a LEI introduced the obligation for employers to report any vacant position to the cantonal employment agency (ORP) in professions where the unemployment rate is equal or higher than a certain threshold, defined on an annual basis by Swiss authorities (FF 2016 2835).

Immigration authorities will request the proof that the position was advertised properly when receiving a non-EU work permit application. The employer must therefore provide the copy of the job announcement at the ORP as well as copies of CVs of domestic applicants.

Initially, as a “transitional phase” from July 1st 2018 to December 31st 2019, the threshold was set at 8% in order to allow both employers and cantons to adjust their procedures in compliance with the new regulation.

From January 1st 2020, the threshold will be set even lower, at 5%, which will inevitably lead to the inclusion of a larger spectrum of concerned professions. The consequence of this procedure is that the position cannot be advertised on accessible-to-everyone platforms during a period of five business days after being published by the ORP on the travail.swiss platform, specifically dedicated to registered domestic job seekers. The aim of this measure is to offer to job seekers registered at the ORP a time-advantage over foreign applicants (Directives LEI, published by the SEM on the 1st November 2019).

The priority process concerns industries requiring low-skilled workers facing tough European competition, such as the building and public works industry or the hospitality industry. The list of concerned professions during the transitional phase can be found on www.seco.admin.ch. An exception exists when it comes to jobs only offered for a short period of time based on an urgent need for staff, not exceeding fourteen calendar days, for which no priority announcement to the ORP is required.

What about the results?

The State Secretariat for Economic Affairs (SECO) published, on November 1st 2019, its first monitoring report on the implementation of the priority obligation. Approximatively 200 000 vacant positions have been announced, a number exceeding all expectations. Even 4800 persons found a job through the procedure.

The SECO also insists on the fact that employers largely accepted the measure, which could be also explained by the severe nature of the sanction in case of non-compliance. Indeed, a penalty of CHF 40’000.- at the most might be imposed on the employer in case of violation. Even negligence is sanctioned by a fine amounting up to CHF 20’000.- (art. 117a LEI).

Cantonal employment agencies therefore play a key role in exploiting the job market for the domestic workforce. However, the SECO also underlines that only ¼ of domestic job seekers are registered on travail.swiss, and therefore benefit from the priority process, minimizing the success of the measure.

In the practice, the announce requirement and priority process can sometimes be perceived by employers as a time-consuming obstacle to bring qualified experts in Switzerland.

Contact us at legalexpat@oalegal.ch for more information.

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This website aims to provide general information regarding Swiss law and should not be regarded as a legal opinion. For more specific advice, do not hesitate to contact us.