Reforms Make Processing Difficult in Spain
November 8, 2011— Spanish authorities continue to provide new official interpretations of the immigration reforms that took effect in June, which is further complicating the entry of foreign workers and making the transfer of foreign talent unpredictable. Though the reforms were largely procedural and did not impose substantive restrictions on employment-based immigration categories, they have caused new immigration processing difficulties for many employers.
As a result, employers should review the recent changes to Spain’s immigration policies, but should also keep in mind that the situation in Spain remains fluid because the implementation of the changes has been inconsistent.
Impact on the Large Business Unit Fast-Track Processing Program
Some foreign nationals who used to qualify for expedited immigration processing through Spain’s Large Business Unit (Unidad de Grandes Empresas) no longer do so, as a result of the Unit’s new minimum salary requirement. To qualify for processing at the Unit, a transferee’s salary must be at least 1.5 times the minimum salary set by the Spanish National Statistics Institute (INE) for the employer’s National Classification of Business Activities (CNAE) activity code. The minimum salary, which is unique to the Unit, has also caused employers to adjust their Spanish job offers.
It was thought that the new rules would lead to faster processing times and allow more employers to benefit from the Large Business Unit, because they eased eligibility requirements for the Unit, primarily for employers in research or development sectors. However, whether an application qualifies under the eased requirements is subject to the discretion of immigration authorities, who have been requiring employers to provide extensive supporting documentation of their strategic contributions to Spain’s economy.
Labor Market Test for Intracompany Transferees
Foreign nationals applying for a work permit as an intracompany transferee are now subject to a labor market test, unless both the sending and host companies belong to the same group of companies and have common ownership or unless the work permit application is filed at the Large Business Unit.
Recently, employers have had difficulty successfully completing labor market tests, which are subject to a high level of scrutiny. Applicants for intracompany work permits under third-party service agreements are particularly likely to face stringent labor market testing. Authorities now require labor market test results to be legalized or accompanied by an apostille, which is further delaying the application process.
Implementation of the EU Blue Card
Applicants for Spain's version of the EU blue card – a new work permit class for highly skilled employees and researchers – may need to pass a labor market test. Given the high level of scrutiny currently being applied to labor market tests, obtaining Spain’s Blue Card can be difficult. Blue Card applications are exempt from labor market tests if filed through the Large Business Unit.
Reporting Requirements for Direct Hires Changing Work Sites or Positions
Direct-hire work permits are currently granted for a specific business activity. Within the first year of validity, these permits can only be used within the Spanish province where they were issued. Employers that wish to transfer a local work permit holder to a different location or job position must notify and seek approval from immigration authorities. This reporting requirement has been strictly enforced in recent weeks.
Work Permit Requirement for Romanian Nationals
Despite EU rules, Romanian nationals are still being required to obtain work permits, except those who obtained a residence permit prior to July 22. Authorities are expected to evaluate whether to continue imposing this rule by the end of 2012. Romanian nationals applying for a work permit are not subject to a labor market test or required to obtain a visa.
Long Wait Times in Madrid for EU Citizen Registrations
In Madrid, there are long wait times to schedule appointments for EU citizen registrations and family residence cards. The earliest appointments for EU citizen registrations are in March 2012, and in July and August 2012 for family residence cards.
Employers should be mindful of these delays when planning assignments to Spain.
Additional Document Legalization and Apostille Requirements
Employers have recently been asked to comply with document legalization and apostille requirements that may not be compatible with certification requirements under Spanish law. In other cases, authorities required applications be filed by a legal representative of the sponsoring entity, and not by a representative of a group of companies, thereby requiring every host company to appoint their own legal representative to hire foreign national personnel in Spain.
What the Changes Will Mean to Employers In the Near Future
The regulatory situation in Spain remains in flux, and employers should be prepared for further changes as government authorities issue new guidance and instructions on the immigration rules. Employers should also be prepared for the possibility that rules and requirements may be applied inconsistently. As implementation continues, there may be contradictions between recent government guidance and actual case outcomes.
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