Switzerland: Obligations Of The Employer And The Employee When The Respective Work And Residence Permit Expire

Overview

Work and residence permits very often expire at the end of the year. Stakeholders are not always aware of the obligations they have towards the authorities to be able to continue employing foreign skilled workers or to allow their foreign employees to work without interruption. We will now summarize in detail the respective obligations of employers and employees for each type of permit listed:

1. Posted worker notification

2. 120-day permit

3. Short-term residence permit L:

c. Employees posted within the company

4. Residence permit B:

5. Cross-border commuter permit G

6. Settlement permit C for all nationalities

1. Posted worker notification

A new notification for the year 2024 can be made up to 1 day before the next start of work in the case of a subsequent notification for an existing, registered assignment in Switzerland. For new assignments or projects in Switzerland, the 8-day advance notification period before the start of work must be observed.

The posting European entity receives 90 days in the new calendar year, so the employee may, for example, already be notified in 2023 for the new year 2024, even if the 90 days in calendar year 2023 have been fully exhausted. The notification of the employee is an obligation of the foreign employer (the posting company) and at the same time an obligation of the employee and the Swiss posting company to ensure that the foreign employee is allowed to work in Switzerland. The primary obligation lies with the posting company. The Swiss posting company may refuse to allow the employee to work if a corresponding notification has not been submitted, as the employment of foreign employees without notification is a criminal offense and subject to sanctions.

2. 120-day permit

A 120-day permit is usually a project-specific work permit for the provision of services or an internal company posting of the employee. When this permit expires, the employee is obliged to stop working. The employer is obliged to apply for a renewal of the 120-day permit before the expiry date if the employee would have to work in Switzerland without interruption. If the 120-day permit was issued for four consecutive months, the employer must apply for its renewal before the permit expires, otherwise, a statutory cooling-off period of two months applies. The employee may not work in Switzerland during this cooling-off period. In the case of a 120-day permit within 365 days, this cooling-off period does not apply, with the sole consequence that the employee may only work in Switzerland again upon receipt of the new 120-day permit.

3. Short-term residence permit L (employee in local employment (with a Swiss employment contract); service provider for a specific project in Switzerland; intra-corporate transferee)

The extension of the short-term residence permit L consists of 2 components. On the one hand, the employer is obliged to extend the work permit with the competent labour market authority, on the other hand, the employee is obliged to apply for the extension of the short-term residence permit (L permit) with the competent Residents' Registration Office. This requires the signature and stamp of the employer on the extension form.

However, the extension of the short-term residence permit L or the foreigner's permit L can only be approved if the labour market authority has made a positive decision regarding the work permit. Both applications (for the extension of the work permit and the foreigner's identity card) can be submitted at the same time. The extension of the L permit will only be granted once the labour market authority has issued a positive decision.

4. Residence permit B (especially employees in local employment (with a Swiss employment contract); with a linked work permit to the employer; with an unlimited work permit (no longer linked to the employer)

The extension of the residence permit B is similar in all details to the extension of the short-term residence permit L, i.e. the employer must extend the work permit with the labour market authority and the employee must extend the foreigner's permit B.

A special feature of this type of permit is the constellation in which the work permit is unlimited, i.e. it is no longer linked to the employer. In this case, the employer is no longer obliged to extend the residence permit because it is unlimited. The employee is only obliged to extend the foreigner's residence permit at the relevant residents' registration office. To extend the residence permit, the employee must obtain a signature and the employer's stamp on the extension form (as with the L permit) so that the extension of the residence permit can be approved.

5. Cross-border commuter permit G

For EU/EFTA employees with a Swiss employment contract who commute internationally between the EU and Switzerland either daily or weekly, it is the responsibility of the Swiss employer to apply for the extension of the cross-border commuter permit at the respective migration office. In most cases, this process is very simplified and takes place smoothly with a current confirmation of employment and the employee's personal documents such as passport and cross-border commuter permit G. In this sense, there is no labour market check of the application.

For non-EU/EFTA cross-border commuters who live in the neighboring border zone and work in Switzerland, the employer would have to apply for the extension of the cross-border commuter permit from the competent labour market authority with an application as usual for third-country nationals. The new cross-border commuter permit will only be issued once the labour market authority has issued a positive decision (labour market test of the application). In both of the above constellations, the employee cannot independently apply for an extension of the cross-border commuter G permit. There is no further obligation for the employee.

6. Settlement permit C for all nationalities

The C settlement permit guarantees the foreign employee the right to permanent residence in Switzerland. Nevertheless, it is the sole responsibility of the employee to extend the permanent residence permit C so that they can continue to live and work in Switzerland. This type of permit is independent of the existence of an employer. In this sense, the employer cannot obtain an extension.

We recommend that employers draw up a kind of compliance guide for all types of permits for internal processes so that they do not miss any expiry deadlines and inadvertently become subject to penalties under immigration law.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.