SPAIN – Recent, Significant Changes to Immigration Law in Practice
The government of Spain has passed a Royal Decree (557/2011) which makes significant changes to immigration law and procedures, effective from 30 June 2011. These changes will affect all companies bringing foreign national employees or assignees into Spain. Changes include the introduction of a compulsory labour market test even for intra company transfer applications, a simplification of the qualification criteria for using the Unidad de Grandes Empresas (Large Business Unit) and the implementation of the EU Blue Card.
Labour Market Test
Prior to 30 June, labour market tests (or, in other words, the requirement to advertise the position to be filled by the foreign worker, in order to prove that no resident workers are available) were required only for new hire applications. Intra company transfer applications for assignees remaining on home payroll and contract (transnational applications) were exempt. This is no longer the case – even applications for intra company transfers must now pass a labour market test.
The labour market test requires the employer to submit the application to the local job centre in the relevant region in Spain, which must then assess the position criteria and confirm whether local resident workers may be available or not. In practice, it is almost impossible to secure labour market test approval; Spain’s unemployment rate is currently at around 20% and the job centres have received instruction to apply extremely stringent criteria to any labour market test applications.
Exemptions from the Labour Market Test
Exemptions from the labour market test are in place for:
- Peruvian and Chilean national assignees (due to bilateral agreements)
- Applications made via the Unidad de Grandes Empresas (Large Business Unit)
- It may be possible to request exemption, on a case by case basis, where the transfer is between commonly owned companies and it can be demonstrated that the employee is senior and has a high level of specialised knowledgeIt is important to note that where exemption requests are made on a case by case basis, approval cannot be guaranteed. The new rules have been in effect for approximately two weeks; it is still too early to tell how difficult it will be to obtain labour market test exemptions.
Unidad de Grandes Empresas (Large Business Unit)
The Unidad de Grandes Empresas provides expedited immigration processing for large businesses in Spain. Processing via the Unidad de Grandes Empresas provides the following benefits:
- No labour market test required
- Work permit processing in 20 business days (4 weeks)
- D Visa processing in 10 business days (2 weeks)
- Dependent D Visa applications can be submitted at the same time as the principal applicant’s application.The changes of 30 June 2011 make it simpler for business to qualify to use the Unidad de Grandes Empresas. New qualification criteria are as follows:
- Applicant must be highly skilled, should hold a university degree (although it is possible that exceptions may be made, rarely, where applicant has exceptional experience), and be paid a salary that corresponds to the seniority of the specific position (typically, this should be at least 40,000EUR, but will vary and a higher salary may well be expected, depending on the sector and the position); AND one of the following:
- Spanish entity must employ at least 500 workers (down from 1000); OR
- Annual business volume in Spain is minimum 200,000,000 EUR, or holds at least 100,000,000EUR equity,OR
- Spanish entity has received at least 1,000,000EUR in foreign investment in the last 3 years (down from 20,000,000EUR), OR
- Spanish entity operates in one of the following sectors: IT, Communications Technology, Renewable Energy, Environmental Protection, Water & Water Treatment, Healthcare, Biopharmaceuticals, Biotechnology, Aeronautics & Space (new criterion); OR
- Spanish entity is engaged in a project that is in the public interest.
EU Blue Card
The decree also introduces the EU Blue Card to Spain. This is a combined work and residence permit recently introduced by the EU to attract highly skilled individuals to the EU. After 18 months’ residence in Spain, EU Blue Card holders may apply to live and work in another EU member state.
Qualification criteria are standard across the EU and basically comprise:
- High level of qualifications/experience (at least university degree and/or five years of relevant experience)
- Salary at least 1.5x the national average, of 1.2x the national average for shortage skills positionsThe Spanish implementation of the Blue Card further clarifies the following:
- Labour market tests will still be required
- Work permits will be processed in approximately 30 business days (6 weeks)
- D Visas will be processed in approximately 15 business days (3 weeks)
- Note that labour market tests are now required for intra company transfer applications for assignees remaining on home payroll – unless exempt as noted above
- Due to the above, recourse to alternative processing routes will likely be necessary;
- Note that qualification criteria for expedited processing via the Unidad de Grandes Empresas are now simpler than previously; your company may now qualify even if it previously did not.