Background
Due to the shortage of skilled labor, Swiss companies are increasingly offering Swiss employment contracts to foreign candidates, even though they wish to remain in their country of residence. In this case, a local Swiss employment contract is issued. The employee belongs to the Swiss company and, therefore, also to the Swiss payroll. However, he works in a home office abroad ("remote work").
From an immigration perspective, this constellation only becomes relevant if the employee sporadically comes to Switzerland for work. Two case studies are used here to illustrate the authorization options.
a) Case study: Employee is EU/EFTA citizen
A Swiss consulting company has recruited a prominent headhunter from the neighboring country Germany, Mr. Besserwisser, who wants to keep his residence in Germany. On one hand he can do his job perfectly well from home, on the other hand his wife is gainfully employed, and the children go to school in Germany. A move to Switzerland is, therefore, out of the question. However, he must come to Switzerland for various company matters.
Question
What forms of work authorization are available to Mr. Besserwisser?
Possible solutions
If you are employed by a Swiss employer but do not reside in Switzerland, the options for work permits are unfortunately more limited than usual. In addition, the 8 permit-free days are only available to service providers with employment abroad (which is not the case in our example).
Here we show you the options and restrictions for employment in Switzerland depending on the nationality:
1) Cross-border commuter permit
A cross-border commuter permit requires that the residence in an EU/EFTA country is maintained, the employee has a Swiss employer and returns to his foreign residence at least once a week. The law requires a regularity of return, and the practice requires a minimum weekly presence of 12 hours (about 30% workload) in Switzerland. However, Mr. Besserwisser is only sporadically active in Switzerland, which is why he cannot reach the workload threshold. In such a case, the authorities will refuse to issue or extend the cross-border commuter permit.
Excursus: A cross-border commuter permit for an EU/EFTA citizen residing in a third country (i.e. outside the EU/EFTA region) is not possible, even if he himself is an EU/EFTA citizen. Residence in an EU/EFTA country is a basic requirement.
2) Online notification procedure
Another option is the online notification procedure. This is an online tool, which is better known in the private sector for EU/EFTA expatriates. However, the notification procedure is also possible for the registration of an EU/EFTA employee with a Swiss employer. This possibility is intended for short-term employment of up to three months, in order to avoid the issuance of a residence or cross-border commuter permit.
With the notification procedure, Mr. Besserwisser can be registered up to one day before the start of work in Switzerland. The Swiss employer must register a profile in the notification procedure and Mr. Besserwisser's notification is produced via the employer's account.
The days in the notification procedure only count for Mr. Besserwisser. He may not work in Switzerland for more than 3 months within a calendar year, otherwise he would have to register as a resident with a local municipality. For Mr. Besserwisser this would mean a change of residence. To avoid this and to keep track, we recommend entering the days of the registration procedure in a travel calendar.
These would be the only two options for Mr. Besserwisser. With both options there is no wage control (unless the wage is below the social legal subsistence minimum between 1'700 CHF to 2'300 CHF depending on the personal situation). The Swiss employer is also not obliged to pay the equivalent, comparable Swiss wage.
Excursus: The notification procedure for an EU/EFTA citizen residing in a third country (i.e. outside the EU/EFTA region) is possible. However, the cross-border commuter permit for a resident in a non-EU/EFTA country (third country) would not be permitted.
3) 120-day permit
The 120-day permit is a project-related work permit or a work permit related to the provision of a specific service for expatriates with a foreign employment relationship. Therefore, this option is not applicable in the case of employment with a Swiss employer.
a) Case study: Employee is a third-country national
Question
What would the permit options be if Mr. Besserwisser were a third-country national (e.g. British or American)?
Possible solutions
A third country national with a Swiss employer needs a work permit in Switzerland from day 1. The 8 permit-free days are only available to service providers with employment abroad. The following is a comparison with the above permit options:
1) Cross-border commuter permit
The requirement of a minimum workload of 12 hours in Switzerland remains. In addition, an ordinary work permit procedure with search efforts comes into play. Mr. Besserwisser must show a legal residence for at least 6 months in a neighboring border zone and would only be allowed to work in the Swiss border zone. These are legally defined.
This would not be an option for Mr. Besserwisser or his Swiss employer.
2) Online notification procedure:
Notification of employment with a Swiss employer for up to three months is only available to EU/EFTA nationals.
3) 120-day permit:
So far, the legislator accepts this type of permit only for expatriates with foreign employment contracts. We are currently unable to assess what the future holds in store. Due to the increased number of cases such as that of Mr. Besserwisser in the constellation of a third-country national, a change in practice is expected in this regard.
Conclusion
In the second case study, the permit options are extremely limited unless a work permit with a residence in Switzerland is applied for.
Even though there are few options available under immigration law, the challenges in our two case studies in connection with their social security and tax aspects are not to be neglected.
We will go into the individual aspects regarding taxes and social insurance in our next Global Mobility Alert.
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.