1 In a nutshell

Since 1 July 2014, the competence on economic migration ("authorization to work") has been regionalized. Since then, each Region (and the German-speaking Community) can adopt its own regulation in this matter.

In 2018, the Flemish Region was the first to introduce such regulation. In 2021, this regulation was revised for the first time incorporating some substantive and technical changes. Whilst several key aspects were modified, the majority of the rules and the methodology specific to this matter remained largely unaltered.

This methodology can be summarized as follows:

  • Step 1: If an employer wishes to employ a third-country national, it must first be verified whether this individual requires an authorization to work, as some foreign employees are automatically (by law) allowed to work in Belgium. For this, a distinction must be made between residencerelated exemptions (at federal level) and work-related exemptions (at regional level).

  • Step 2: If the employee does not benefit from an exemption, the employer (or its proxy holder) must apply for a work permit (for stays of less than 90 days) or a single permit (for stays of more than 90 days) with the competent Region.

The Flemish Region has three different types of profiles: highly skilled and special profiles, mediumskilled profiles (so-called official "bottleneck professions" listed on a dynamic bottleneck professions list) and other profiles that are subject to a labor market test and for which specific economic or social reasons must be demonstrated. The changes, which will come into force on 1 May 2024, aim to achieve three objectives:

  1. The simplification of certain rules to ensure better fulfillment of bottleneck professions and to strengthen the economy in Flanders.
  2. The tightening of certain rules following a number of scandals to prevent abuses and avoid improper economic migration.
  3. The further transposition of a number of European directives (including Directive 2021/1883 (European Blue Card) and Directive 2014/36/EU (seasonal work)).

The changes are spread across the Flemish regulatory framework1 and include changes regarding workrelated exemptions (see under point 2.1), general changes (see under point 2.2), changes to the different types of profiles (see under point 2.3-2.5) and changes to the single permit of indefinite duration (see under point Error! Reference source not found.).

2 Substantive changes

2.1 Work-related exemptions

Third-country nationals falling under the scope of a work-related exemption are automatically (by law) allowed to work. These exemptions are related to the nature of the work and/or activities to be performed. For these third-country nationals, the employer therefore no longer needs to apply for any additional authorization to work. However, they must always have lawful residence in Belgium.

These work-related exemptions fall into four categories in the Flemish Region.

1) Seconded employees subject to prior Limosa declaration

Certain seconded employees subject to a prior Limosa declaration are automatically (by law) allowed to work if all conditions are met.

The new regulation no longer refers to a maximum duration of three consecutive months, but to a rolling 90-day period within a 180-day period (to align with Schengen circulation rights or permitted short stays within the Schengen zone2 ).

The new regulation adds several categories to the work-related exemptions, more in particular:

  • Third-country nationals serving as representatives of hotels, travel agencies, or tour operators, or attending or participating in a congress or fair as guides, or leading a tour that started on the territory of a third country;
  • Translators and interpreters: third-country nationals providing translation or interpretation services as employees of a legal entity established in a third country.

In addition, the category of commercial representatives is significantly broadened. Previously, the workrelated exemption applied only to commercial representatives who visited their customers in Belgium on behalf of foreign-based companies without an branch in Belgium. This definition was broadened to include third-country nationals who do not have a main residence in Belgium and who carry out one of the following temporary commercial activities that must be related to the employer's business interests and do not involve the supply of services or goods:

  • attending:
    • conferences and seminars;
    • internal and external business meetings;
    • fairs and exhibitions;
  • negotiating business agreements;
  • undertaking sales or marketing activities;
  • conducting internal audits or customer audits;
  • exploring business opportunities;
  • giving or attending training sessions.

This change aligns Flemish regulations with some free trade agreements and gives these exemptions a general scope of application.

2) Seconded employees not subject to prior Limosa declaration

Within this category, no changes were made by the new regulatory framework.

3) Researchers or international lecturers affiliated with a Belgian recognized research institution for a period of up to 90 days within each 180-day period

Within this category, no changes were made by the new regulatory framework

4) Flexi-jobs

The regulation provides for a fourth category: an automatic (by law) authorization to work to exercise a flexi job for single permit holders.

The regulatory framework does not allow for the application of one (or two) single permits for the same worker by two different employers. Until April 30, 2024, it was therefore not possible for holders of a single permit to perform a flexi-job.

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Footnotes

1. Decree of the Flemish Government amending the Decree of the Flemish Government of 7 December 2018 implementing the Act of 30 April 1999 on the employment of foreign employees, B.S. 28 March 2024.

2. From 31 March 2024, Bulgaria and Romania also (partially) joined the Schengen area. From this date, there are no more checks at internal air and sea borders. However, there are still checks at land borders.

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.