An immigration procedure is defined as all the formalities to be carried out with the authorities of a country other than that of our nationality in order to work and / or reside there.
It consists of three types of authorization:
- The work permit: this is the right granted to exercise a professional activity on the soil of the host country;
- The visa: it constitutes an authorization to enter the territory (subject to validation by the border authorities);
- The residence permit: this is the right to stay in the territory for a long period (usually the minimum is 3 months of stay);
These three separate authorizations can take multiple formats depending on the country concerned (such as an electronic authorization or a plastic card) to cover one, two or three aspects of the procedure. For example, there are visas that do not contain a work permit or a residence permit, work visas giving rise to a request for a residence permit or visas containing the work permit and the residence permit.
In the context of professional (economic) immigration, the steps to obtain these various authorizations are the first to take. Indeed, they condition the entire mobility in that their absence prohibits any kind of professional activity in the destination country, and any late approval imposes postponement of the start of the employee's mission.
It is therefore crucial to address the issue of immigration as soon as the foreign employee has been identified and the conditions for mobility are determined.
In terms of professional immigration to France, the steps to be taken depend primarily on the nationality of the employee and their accompanying family, but also on the duration of the assignment, the activity to be carried out in France, the contractual scheme envisaged and the employee's profile.
The right to work and to stay in France for European nationals
Regarding the right of residence of nationals of the European Union, the European Economic Area or the Swiss Confederation, reference must be made to European law and its transposition into French law.
These nationals are exempt from a residence permit and work permit, as they benefit from free movement, residence and access to the labor market in France. They can exercise any salaried or self-employed professional activity, under the same conditions as French citizens (with the exception of certain public jobs or certain regulated professions).
They are not required to hold a residence permit, but must nevertheless be provided with a valid identity document or passport. In fact, there is no obligation to register in France for European nationals, who can therefore prove their residence via recent proof of address.
It should be noted that in the event of hosting in France of a European employee, or even French, on the basis of their foreign employment contract, formalities remain to be carried out in terms of labor law: it is the transnational position declaration also known as posting of workers notification. Nationality is therefore not an absolute guarantee of the absence of formalities prior to starting work in France.
The right to work and to stay in France for nationals of third countries
The short stay
The French authorities set the limit between the “short” and the “long” stay at 90 days. The immigration procedure will therefore strongly depend on the length of the planned mission in France. However, the activity to be carried out, even for a short stay, will also determine the appropriate authorization category.
In principle, any stay of less than 90 days during which the employee will carry out a productive activity must be seen as subject to a work permit, because so-called business visas (Schengen visas, with or without exemption depending on nationality) do not allow the "work" in France. Some exceptions exist in order to facilitate the mobility of certain employees on short stays though.
It is therefore crucial, even for short stays, to raise the question of the need to obtain a work permit when the person "works" in a country other than that of their nationality.
The long stay
// Long-stay professional immigration to France is to be seen through two prisms:
- the mobility pattern: there are two main ones:
/ mobility outside the group;
/ and intra-company mobility;
- and the employee's status: there are also two:
/ secondment, which implies maintaining the employment contract with the original employer;
/ and expatriation, which involves suspension or even termination of the initial contract and the signing of a local contract (in the event of termination, the employee can be said to be "localized" in HR terms).
Consequently, four different legal situations may arise for nationals of third countries. Each will correspond to a category of work and residence permit in France, or even several.
There are therefore multiple categories of work and residence permits in France, each with its eligibility conditions, its procedure for obtaining it, its period of validity and its conditions for renewal.
To name only a few, an intra-group mobility on secondment will have to be the subject of an application for the « Salarié détaché ICT » status, while a new hiring under local contract could be eligible for the status of "Passport Talent - Carte Bleue Européenne ”,“ Passport Talent - Salarié qualifié ”or“ Salarié” for example. Finally, intra-company mobility in local hiring will allow obtaining the « Passeport Talent - Salarié en mission.
In terms of duration, where the status of “Salarié détaché ICT” is valid for 3 non-renewable years, the different subcategories of the “Passeport Talent” are valid for 4 renewable years and the “Salarié” status is initially valid for 1 renewable year. .
These different aspects of the categories as well as the eligibility conditions of each must be known upstream of the immigration process because they can lead to adjustments in the conditions of mobility, such as for example the level of the salary offered in France. It is therefore important to call on a specialist to advise you upstream and help you carry out the procedures best suited to your needs, your requirements and the particular situation of the employee.
The procedures for applying for these different statuses vary but, since 2016, many statuses are issued by consulates (and no longer by labor offices), which has led to a significant reduction in processing and issuance times. Thus, companies wishing to welcome a foreign employee can more accurately anticipate the mobility agenda, because they have better visibility on the possible date of arrival of the employee.
However, it is recommended to anticipate the procedures and to plan a minimum of 2 months between the launch of the process and the start of the assignment in order to ensure a serene arrival of the employee in France.
Once in France, formalities will have to be carried out with the local authorities (OFII or préfecture) but the employee is authorized to work before they are finalized.
It is also important to note that training stays (internship) are subject to a very specific procedure and that, again, a dedicated category exists to train a foreign national as a “Stagiaire” (professional or with a school) in a French company.
The arrival of the family to France and the posting of workers notification and the so-called "Van der Elst" permits
The accompanying family is, for most categories, authorized to accompany the foreign employee in France. Dependents are defined in France as married partners and minor children. The other members of the family will not, in general, be eligible for accompanying family status and will have to obtain a residence permit in France on another basis (for example, "student" for an adult child).
The family's requests can be submitted at the same time as that of the employee or later in the event of a non-simultaneous arrival. The married spouse is authorized to exercise a professional activity in France, which contributes to the attractiveness of the country for your foreign employees wishing to be accompanied by their families.
In certain situations, the family will be the basis for immigration procedures instead of work, and applications for « Conjoint de Français" or « Membre de famille UE" statuses may be considered. Each has its own conditions (for example, the EU family member does not have to be legally married to claim the status), it is important to inquire about the nationality of all the people wishing to accompany the employee in France upon confirmation of their mission.
It is important to remember that immigration has an impact on issues of labor law, social security and payroll. It is for this reason that you must also analyze all these subjects in parallel with the immigration procedures.
The posting of workers notification is a requirement of labor law, independent of the nationality of the employee, which applies to any French company wishing to temporarily host an employee with a foreign employment contract. It stems from European regulations aimed at limiting the social dumping that the free movement of workers can generate in the European area.
This notification must imperatively be sent to the authorities before the start of the assignment on the dedicated SIPSI platform, for any employee that you receive on your French sites without concluding a local employment contract with them (be it intra-company or outside group mobility).
In terms of immigration, when the said employee is a third-party national but employed in an EU company, it is not necessary to obtain a work permit, as this would constitute an obstacle to the free movement of services between EU companies. However, when their stay in France exceeds 90 days, it is imperative for them to apply for a French residence permit, because residence permits issued by another EU country do not allow free settlement in France for more than 90 days. This is the so-called "Van der Elst" procedure, named after EU case law, because these obligations are common to all European countries that have adopted this legislation.
Your company may therefore have to face an immigration issue when it exchanges with foreign companies or hires foreign employees. Only a handful of the possible situations have been mentioned here, and each of the movements must be studied in depth and in light of particular circumstances.
The consequences, both penal and administrative, of a breach of the immigration rules in France can be of importance, for the foreigner but also for the company. It is accordingly recommended to call upon an expert to accompany you on these subjects and be your partner every step of the way.
