Schengen Business Visum – keine Grundlage für Arbeitsleistung in der Schweiz

Arbeitsmigration, Arbeitsbewilligung, Arbeitsrecht

Dieser Artikel ist nur auf Englisch verfügbar.

A common misconception for foreign companies temporarily sending employees from non-EU/EFTA countries to Switzerland and/or Swiss companies looking for the temporary support of foreign (non-EU/EFTA) employees seems to be based on the so-called Schengen Business Visa. It is important to note that despite its commonly used designation this Visa does not entitle anyone to work in Switzerland.

Business vs. Work

The widely spread misunderstanding may be based on the use of the term “business”. “Business” is not to be mistaken for “work”. The somewhat unfortunate difference between the meaning of the two terms likely exists because the Schengen visa are regulated by the Schengen Visa Codex which applies to all Schengen states whereas the entitlement to perform work in a country is a question of national law only. The Schengen visa codex has no implication whatsoever on this topic.

Business and/or Working in Switzerland for non-EU/EFTA citizens

A person coming to Switzerland for business purposes will – in a first step – have to establish whether the intended action will qualify as work from a Swiss law perspective. There are certain tasks that may be the reason for a business trip which will not qualify as work and will therefore not require a work permit.

E.g.: Attendance to a meeting of top-level management members in Switzerland to discuss the strategy of the company will likely not qualify as work. Also, a marketing presentation of a newly launched product by the CEO of a foreign company will likely not qualify as work.

It is of course of utmost importance to analyze the specific case in each single situation (e.g. contract negotiations/signings for a sales person will likely qualify as work whereas the same action may be considered not to require a work permit for an investor).

Once it is established that the purpose of a trip is considered as work from a Swiss law perspective, it must be analyzed for how long work shall be performed. In many fields of business, performance of work of up to eight days per calendar year is allowed without obtaining a work permit. An important exception to this applies to the construction industry and the hospitality industry as well as security business and erotic business and the traveling trades. In these industries, a work permit must be obtained even for work performance of less than 8 days.

If a work permit must be obtained, the application process must usually be handled by the employer. The work permit must be applied for in Switzerland at the intended place of work with the responsible labor authority. A separate visa application is usually not necessary. The visa process will regularly be automatically initiated by the Swiss authorities once the work permit has been granted.

Therefore, the above mentioned analysis should be the very first step when contemplating a business visit to Switzerland. For the sake of completeness, it is to be noted that a Schengen (business) visa will not always be the right choice. A Schengen visa (visa type C) is only valid for up to 90 days per 180 days. If a longer stay in Switzerland is required a national visa (type D) must be obtained. This will also be automatically decided by the Swiss authorities, depending on the type and duration of the work that is to be performed.

If the result of the above analysis is that the purpose of the visit is not “work” from a Swiss law perspective, or no work permit is needed because work shall only be performed for a maximum of 8 days (within the relevant business sectors) the Schengen Business Visa is likely the viable option, provided that a maximum stay of 90 days within 180 days will not be exceeded. In such case, the visa must be applied for with the competent embassy/consulate in the applicant’s country of origin.

Why is the Schengen Business visa called “Business visa”?

When applying for a Schengen visa, applicants will be required to indicate the reason for their trip to the Schengen area. One of the options that can be chosen is “business” – as an alternative to e.g. family visit or tourism. The main reason this purpose must be indicated is to enable the authorities processing the visa request to check whether the intended travel has a legitimate reason and whether the requested duration and specification (i.e. single-entry/multiple entry) can be granted. This distinction leads to the different denominations of the Schengen visa.

Apart from the above, the reason for the trip – and thus the denomination of the visa – has no legal significance. The reason for the trip (tourism, business etc.) is not even part of the mandatory information contained in the visa stamp in the passport.

Februar 2020 | Autor: Martina Aepli

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