EU Intracompany Transferee Permit Forthcoming; New Immigration Restrictions Implemented

The situation

On October 1, 2020, foreign nationals are expected to be able to apply for the EU Intracompany Transferee (ICT) Permit in Belgium. Belgium has also implemented immigration restrictions regarding in-country applications for a single permit and the right to unlimited residency. 

A closer look

• Eligibility for permit. The EU ICT Permit, which is a combined work and residence (single) permit, will be available to managers and specialists with at least a higher education degree and trainees with a Master’s degree. Managers, specialists and trainees must have been working in the sending company for at least three months (in the Flanders and Walloon Regions) or six months (in the Brussels Region) to qualify for the EU ICT Permit, and cannot have their main residence in Belgium when applying for the permit.
• Salary requirements. Although there will be no strict salary threshold, the salary has to be similar to Belgian nationals in a comparable position. The regional governments have set various immigration salary thresholds for the three categories which are presumed to represent at least the remuneration of a comparable position in Belgium.
• Allowable stay. The EU ICT Permit can be issued from 90 days up to three years for managers and specialists and up to one year for trainees. Extensions are allowed within this timeframe, after which an EU ICT Permit holder must change to another single permit type or leave Belgium for at least three months before qualifying for a new EU ICT Permit.
• Application process. The application process is similar to any single permit application and is submitted to the Regional Employment Authorities for final approval by the Federal Immigration office. The standard government processing time cannot exceed 90 days.
• Work up to 90 days in Belgium. ICTs who hold an EU ICT Permit in an EU Member State other than Belgium who need to perform work activities for a group company in Belgium for up to 90 days in a six-month period only have to submit a Posted Worker (Limosa) notification to the Belgian social security office.
• Work over 90 days in Belgium. Those who seek to work for over 90 days must apply for a Mobile ICT Permit with the Regional Employment Authorities as well as the Posted Worker (Limosa) notification. They can, however, start working while the application for the Mobile ICT Permit is pending. Both during short and long-term stays in Belgium, Belgian salary requirements need to be met.
• Family members. Both the EU ICT Permit and Mobile ICT Permit allow dependents to work in Belgium without a separate work permit.
• New restrictions.
  
  • In-country applications. While EU ICT permit applications need to be made from abroad, as of September 1, 2020, the Belgian government has restricted in-country applications for other single permits types. As such, foreign family members can no longer change status from dependent to highly-skilled single permit holder in country.
  • Permanent residency restrictions. Moreover, the Belgian government has restricted the right to permanent residency to foreign workers engaged by a Belgian company who are subject to Belgian social security.

Impact

• Improved scheme over Schengen rules. The EU ICT Permit allows holders to stay in other EU Member States for up to 90 days in a 180-day period per Member State, which is more relaxed than the Schengen rules. During their stay, EU ICT Permit holders can work for any company in the same corporate group, although they may be required to notify immigration authorities of their stay.
• Safer and more convenient option. The EU ICT Permit prevents noncompliance with immigration laws resulting from the incorrect use of the business visitor status, and reduces the administrative burden of other schemes, which require multiple national work visa applications.
• Be aware of other restrictions. Employers should be aware of the immigration restrictions for family members who seek to change status or posted employees that will no longer qualify for unlimited residency.
• How Fragomen can help. Interested applicants should work with their immigration professional to determine the best possible immigration route considering work activities in other EU Member States or long-term planning.

Background

This new Belgian permit is related to a 2014 EU Directive aimed at harmonizing immigration rules for ICTs and introducing intra-EU mobility rights. The permit was expected to become available in 2019 but was delayed due to the formation of a new federal government.

Once implemented in Belgium, the EU ICT permit will be available in all EU Member States (except Denmark, Ireland and the United Kingdom). 

Looking ahead

The actual issuance of the EU ICT permit is subject to further legislation, which delays the main benefit of this permit (holders being able to work in other EU Member States, provided certain conditions are met).

Beyond that, several other immigration changes are expected in Belgium, including the implementation of the European Directive on Students, Trainees and Researchers. At the same time, regional authorities in Belgium will continue to shape their policies to take into account local labor market needs and other local policy priorities. In addition, the Single Electronic Platform for electronic immigration filings should become available in the beginning of 2021.

Employers should also take into account Belgium’s implementation of the revised Posted Worker Directive, which might lead to more scrutiny by the authorities in immigration filings for posted workers.

This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen or send an email to [email protected].