Strict requirements for hiring third-country nationals

Hiring employees from non-EU/EFTA member states, so-called third-country nationals, is subject to various requirements. Principally, work permits for third-country nationals are only granted to highly skilled workers such as management-level employees, specialists and other qualified workers (with narrow exceptions). Among other requirements, employers wishing to hire third-country nationals generally must complete so-called labor market testing, i.e., demonstrate in advance that there were no domestic or EU/EFTA member state candidates suitable for the position (priority to domestic workers, Inländervorrang). Depending on the circumstances of the individual case, employers need to prove that sufficient market testing has been conducted not only by publishing job announcements on national and international online platforms but also by providing the competent authorities with the results of the recruiting process following such announcements.

Notable changes as of 1 February 2023

The recent changes to the directive, effective since 1 February 2023, can exempt employers from the requirement to provide evidence of market testing if the vacant position falls within the scope of an occupation that is subject to a shortage of skilled employees. Going forward, if the employer demonstrates in the application for a work permit that the individual employee is subject to an occupation with a shortage of skilled workers, the competent authorities might refrain from requesting evidence of the employer's market testing efforts. The authority will have discretion as to whether the domestic potential has been exhausted with regard to the following occupations:

• Managers (executive positions) within the information and communication technology sector; management consulting; the finance and insurance industry; the machinery, electrical and metal industry; and in the production of chemicals, pharmaceuticals and food
• Engineers, scientists and researchers in mathematical, scientific and technical fields, and specialized professionals in information and communication technology
• Some healthcare professionals (certain doctors, specialized nursing personnel and radiology assistants)
• University teachers

This list is periodically reviewed by SEM with the involvement of the State Secretariat for Economic Affairs (SECO).

In practice, these changes bring welcome support to Swiss employers seeking talent that falls within the scope of the aforementioned occupations, where a shortage of skilled employees is presumed. The new directive implies that, in future, the authorities should make use of the discretion to refrain from requesting evidence rather generously; however, only time will tell how the authorities will exercise their discretion in practice. Where the recruitment of third-country nationals is planned, we recommend reviewing and assessing the applicable proceedings on a case-by-case basis at an early stage.