A Shortcut in the Immigration Process for Non-EU Skilled Workers Hired by EU-Based Employers

by Corrado Scivoletto, Studio Legale Associato Simonetti Persico Scivoletto, Italy

Pursuant to Italian law, non-EU nationals who want to work in Italy must previously apply for a work permit, which is released only within certain quotas that are set out each year by the Government.

Once the cap is reached, all applications in excess are rejected.

Italian law, however, allows for some exceptions when the applications for a work permit are filed by non-EU skilled workers hired by employers meeting certain legal requirements. In such case, applications can be processed at any time during the year, irrespective of the availability of quotas for “ordinary” workers.

The above constitutes a relevant facilitation mainly in the framework of “corporate immigration”, i.e. when corporations want to second to Italy non-EU key employees for a limited period of time, normally in the framework of intercompany agreements or in the framework of work contracts.

Despite such facilitation, however, even the immigration process for non-EU skilled workers entails a substantial amount of formalities (in a 3-step procedure that requires first to obtain the work permit, then the visa and finally the permit of stay), and a rather detailed investigation which is carried out by the immigration authorities in order to ascertain (a) whether the non-EU skilled worker is indeed skilled according to the parameters set out by Italian law, and (b) whether the corporations involved in the application process meet the requirements of Italian law in order to by-pass the mandatory threshold of quotas.

In the above framework, a further facilitation has been recently set forth by the law, with specific reference to non-EU employees who are hired and regularly remunerated by EU-based employers, i.e. physical persons or corporations that are resident or have a registered office in the territory of any EU Member State.

In such case (i.e. non-EU employees who have already “passed an immigration test” in another EU Country), when the said employees are temporarily seconded to Italy in order to render work activities in the framework of a work contract entered into between the EU employer (the contractor) and an Italian principal (where “Italian” means, again, either a physical person or a corporation resident in Italy or with registered office in Italy), the application for the work permit (and the subsequent clearance process by the immigration authorities) is substituted by a communication made by the Italian principal to the immigration authorities which shall include: (a) the details of the work contract for the fulfilment of which the non-EU employees are seconded to Italy and (b) a statement by the EU employer listing the names of the employees to be seconded and certifying that all said non-EU employees are legally resident and regularly working in the EU Member State where the EU employer (the contractor) has its seat.

Upon receipt of the said communication, the immigration authorities will forward the communication to the Italian Visa Centre (which is linked to all Italian Consulates abroad) and release a receipt to the Italian principal. This latter, in turn, shall forward such receipt to the non-EU employees, who will thus be able to apply for a visa in order to move to Italy (without the need for a work permit) or, should they be resident in a Schengen Country, to move directly to Italy without a visa (and a work permit) and to apply for a permit of stay.

The above scheme represents a substantial simplification of the immigration process for the specific matter at stake.