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Old 12.03.2013, 13:50
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B permit change from dependent to working (EU - Romania)

Dear all,

I have searched the forum through and through, but haven't been able to find an answer to my question. It seems I have a very special situation...

Long story short: my boyfriend and I (both Romanians) came to Switzerland, he got a job offer and the employer made the file to send to the authorities. His request was denied based on a technicality, the employer appealed the decision but it was denied again. This was 2011.

In the meantime I got a job and a B permit. I have sent a request to the authorities proving we are together with photos, witnesses etc. and we both got B permits to 2017. Mine is regular and his says "sans activité lucrative". We got these last year.

This year his old employer (the one with the denied application) would like to try again. According to all my readings, the B permit he has allows him to work (it even says on the back of the permit that he is allowed to change jobs freely) and that changing it should be a mere formality with a form sent to the canton. However, I called the Service de l'emploi and they say the whole file needs to be yet resubmitted, with the employer proving that they didn't find anyone better suited in Switzerland or the EU. Then again, I've spoken to plenty of people who had no idea what they were talking about when it came to authorities. One even questioned whether Romania was in the EU...

I am now very confused because the law I read said differently
"Art. 46 Activité lucrative du conjoint et des enfants

Le conjoint étranger d’un ressortissant suisse ou du titulaire d’une autorisation d’établissement ou de séjour, ainsi que ses enfants étrangers (art. 42 à 44) peuvent exercer une activité lucrative salariée ou indépendante sur tout le territoire suisse."

So my question is, what is the right approach: build the new file yet again or send just the form asking for his permit to be changed (1350 in the Vaud canton). We would really like to get it right this time...


Thank you all!
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Old 12.03.2013, 14:03
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Re: B permit change from dependent to working (EU - Romania)

Wouldn't be better if you just send the form for his permit to be changed...? This way they will proceed starting from a whole different question - and if they deny it you'll surely win after your appeal, according to the law.

LE I mean, it seems better to play this card than the previous one, as it was proved. And don't rely only on what they tell you on the phone, some are quite incompetent. If they have to first study the case and the applying laws, they might give the right answer.
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Old 12.03.2013, 14:05
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Re: B permit change from dependent to working (EU - Romania)

That was my thinking too. I have looked up and down all the laws possible and impossible. The only glitch is that we are not married and I am worried they might win on that. Plus, a lengthy law process is not necessarily what I was hoping for...
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Old 12.03.2013, 14:23
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Re: B permit change from dependent to working (EU - Romania)

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That was my thinking too. I have looked up and down all the laws possible and impossible. The only glitch is that we are not married and I am worried they might win on that. Plus, a lengthy law process is not necessarily what I was hoping for...
Well, they wouldn't have given him the B permit in the first place, would they? Although I see now....this "le conjoint" doesn't leave space for much hope (unless it's also the preferred version for "concubin")...Why not ask a lawyer?
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Old 12.03.2013, 14:34
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Re: B permit change from dependent to working (EU - Romania)

Well conjoint as far as I know can also be not married...but we asked a lawyer the last time and it ended up with him getting his appeal denied.

We also asked a lawyer this time and they said it was 100% that there is no need of proof. But now I'm scared, because the authorities said something else. I was perfectly peaceful until this morning when I called them, because a lawyer had said it was ok
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Old 12.03.2013, 14:36
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Re: B permit change from dependent to working (EU - Romania)

Romania and Bulgaria are Switzerland EU-2 countries and there are restrictions as to the right to live/work here and I assume those restrictions are similar to the ones for the EU-8 countries. An employer must prove to the authorities that they can't find a Swiss, EU national (not EU-2 or 8) or someone already here who has a valid work permit to do the job. Only if they can prove that they can't find someone from the above groups, can they consider others from the rest of the world.

Basically, you bf had a B permit allowing him to work, but it was refused so now he has one that doesn't allow him to work. Due to the above restrictions as far as I can see his potential employer will have to submit the whole file again.

I don't think the Article you've quoted has any bearing on the matter as he isn't your "spouse" in Swiss law.
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Old 12.03.2013, 14:40
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Re: B permit change from dependent to working (EU - Romania)

He is registered as my "concubin". Does that not count as spouse? What if we were gay?!
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Old 12.03.2013, 14:49
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Re: B permit change from dependent to working (EU - Romania)

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Dear all,
[...]
In the meantime I got a job and a B permit. I have sent a request to the authorities proving we are together with photos, witnesses etc. and we both got B permits to 2017. Mine is regular and his says "sans activité lucrative". We got these last year.

This year his old employer (the one with the denied application) would like to try again. According to all my readings, the B permit he has allows him to work (it even says on the back of the permit that he is allowed to change jobs freely) and that changing it should be a mere formality with a form sent to the canton. However, I called the Service de l'emploi and they say the whole file needs to be yet resubmitted, with the employer proving that they didn't find anyone better suited in Switzerland or the EU. Then again, I've spoken to plenty of people who had no idea what they were talking about when it came to authorities. One even questioned whether Romania was in the EU...

Thank you all!
I know that EU-partners/spouses and non-EU-spouses of "residents with Permit B", can get also a Permit B to join them, and not work in Switzerland.

If the partner is non-EU they need authorization if they decide to work.
If the partner is EU "old school EU-17" they can work (if they want to) and change jobs freely.

Some conditions apply though to EU-8 and EU-2 citizens. In particular (see link below) partners who are EU-2 (romanians + bulgarians) can only work as independants, but if they want have a salaried job it needs authorization.

This has the information:

http://www.bfm.admin.ch/content/dam/...fza-kap4-f.pdf


The fact that you are partners and not married does not change things.
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Old 12.03.2013, 15:21
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Re: B permit change from dependent to working (EU - Romania)

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The fact that you are partners and not married does not change things.
This is what I knew too.

But, I also know people from the EU-2 (particularly Romania) and EU-8 (particularly Poland) whose spouses had no problems in getting whatever authorization or what is it to be done in their case.
It might be more difficult in the French part.

@OP,

With a B permit issued for 5 years (even as dependent) he should not have a tough time in getting his permit changed or whatever.
I would still go for the "send them the form for having his permit changed", really, don't discourage... I wish you both good luck!

Last edited by greenmount; 12.03.2013 at 15:45.
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Old 12.03.2013, 15:43
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Re: B permit change from dependent to working (EU - Romania)

I also found this:

Accès au marché du travail
Les membres de la famille ayant bénéficié du regroupement familial ont, quelle que soit leur
nationalité
, le droit d’exercer un emploi ou de s’établir comme indépendant sur tout le territoire suisse et dans la branche économique de leur choix. La prise d'emploi par des membres de la famille de ressortissants bulgares et roumains au bénéfice d'une autorisation de
courte durée est encore soumise à autorisation préalable.


Translation:

The members of the family that benefited form a "family reunion", whatever their nationality, have the right to work or work as independents within the Swiss teritory and in the economic branch of their choice. For family members of people coming from Romania and Bulgaria having a short term permit, work is still subject to authorization.

According to this, he is allowed to work. Do not take into account the last phrase because I do not have a short term permit, but a 5 year one. So it all breaks down to "is he a member of my family, if he is registered in Switzerland as my partner and "concubin" - we sent the papers according to here. How will I know which one they will consider?!

Last edited by ChatdeChocolat; 12.03.2013 at 15:57.
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Old 12.03.2013, 15:47
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Re: B permit change from dependent to working (EU - Romania)

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He is registered as my "concubin". Does that not count as spouse? What if we were gay?!
Obviously not. If it had, they would have given him a B permit that allowed him to work when you got yours last year. As his says "sans activité lucrative", they don't consider him so for work purposes.
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Old 12.03.2013, 15:50
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Re: B permit change from dependent to working (EU - Romania)

If you are not married, he is not part of your family.

Registered partnerships are only valid for same-sex couples.

Tom
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Old 12.03.2013, 15:53
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Re: B permit change from dependent to working (EU - Romania)

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I also found this:

Accès au marché du travail
Les membres de la famille ayant bénéficié du regroupement familial ont, quelle que soit leur
nationalité
, le droit d’exercer un emploi ou de s’établir comme indépendant sur tout le territoire suisse et dans la branche économique de leur choix. La prise d'emploi par des membres de la famille de ressortissants bulgares et roumains au bénéfice d'une autorisation de
courte durée est encore soumise à autorisation préalable.


According to this, he is allowed to work. Do not take into account the last phrase because I do not have a short term permit, but a 5 year one. So it all breaks down to "is he a member of my family, if he is registered in Switzerland as my partner and "concubin". How will I know which one they will consider?!
If he can benefit from that law, allowing partners of B permit holders to work, then I guess it is the same question for everyone else, be it EU-2, EU-15 etc.
Start a new thread.
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Old 12.03.2013, 16:07
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Re: B permit change from dependent to working (EU - Romania)

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This is what I knew too.

@OP,

With a B permit issued for 5 years (even as dependent) he should not have a tough time in getting his permit changed or whatever.
I would still go for the "send them the form for having his permit changed", really, don't discourage... I wish you both good luck!

I know this in theory, my fear is that this employer had already applied in 2011 and had his request denied so there's now "history". However, I think your way is the best way to go, we will try that. And maybe ask yet another lawyer of what they think...
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Old 12.03.2013, 16:10
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Re: B permit change from dependent to working (EU - Romania)

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Obviously not. If it had, they would have given him a B permit that allowed him to work when you got yours last year. As his says "sans activité lucrative", they don't consider him so for work purposes.
When I called the service de l'emploi a few months ago, they said the "sans activité lucrative" only means he is not currently working and not that he is not allowed to work. It even says on the back of his permit he can change jobs freely but he has to notify the authorities should he start working - notify, not need approval.

This is why it is all so confusing, because I get information from the authorities and lawyers that don't all match. And I would really REALLY like him to not have issues with this again...

LE: It also says on his own permit, on the back "Aucune autorisation n'est requise pour changer d'emploi ou de profession...L'employeur est tenu d'annoncer l'engagement du titulaire du present livret dans les 8 jours à l'autorité fiscale competente. Il est responsable de perception des impots à la source"

(No authorisation is required to change jobs or profession... The employer is responsible to notify the competent fiscal authorities of the employment of the holder of this permit. They are responsible to collect tax at source)

Last edited by ChatdeChocolat; 12.03.2013 at 16:44.
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Old 12.03.2013, 16:46
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Re: B permit change from dependent to working (EU - Romania)

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When I called the service de l'emploi a few months ago, they said the "sans activité lucrative" only means he is not currently working and not that he is not allowed to work. It even says on the back of his permit he can change jobs freely but he has to notify the authorities should he start working - notify, not need approval.

This is why it is all so confusing, because I get information from the authorities and lawyers that don't all match. And I would really REALLY like him to not have issues with this again...
That he is to be considered a member of the family or not was already debated before they issued a B permit for 5 years. Otherwise he wouldn't have been issued one.
The "history" of his application would be relevant only if his status wouldn't have changed in the meantime.
If you want to ask a lawyer though, you might consider someone specialized in this kind of problems
http://www.casa-romanilor.ch/avocata_camelia_costea

Last edited by greenmount; 12.03.2013 at 17:01.
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Old 13.03.2013, 14:16
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Re: B permit change from dependent to working (EU - Romania)

Hi,

The post #8 of 'slingb' and your post #10 tell everything needed to know.

It does not matter the dependency relationship.

What matters is the type of activity.
Now, he can do 'independent' activities but he cannot be hired.

To be hired he will need to get (through the employer) the work permit (provided by the Employment Office).

Then, the dependent resident permit can be changed to a work based residence permit (provided by the Immigration Office).
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Old 18.03.2013, 22:41
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Re: B permit change from dependent to working (EU - Romania)

My story is almost like yours. My boyfriend works here, cantone Vaud. He is French and he has a working permit B for 5 years. Last year in May I gave to authorities my file for a B permit on the basis that my boyfriend is finacially responsible for me (as we are not married). I got my permit only in November, and I havent seen that it was sans activite lucrative. Last week I got a job proposal. My potencial employer asked me to send him a copy of my permit. After a while he told me that he cannot give me the job, because I am not allowed to work here and its quite complicated to fix my papers.
Authorities told me that if I want to chande my permit I have to give them my job contract together with my depedent permit and they will decide wheather to give me working permit or not (!). It depends, particularly, on how many quotas are left for this year for EU-8 countries (I am from Latvia). And also, during the waiting period (it can take around 2 months)I am not allowed to work as well, even if my contract starts from first of April. and if i am not satisfied with rules I can come back to Latvia.
Now I am thinking about to ask the lawyer is there any possibilities for me to get the working permit before looking for a job. But, as I see from your experience the answer of the lawyer and authorities differs!!!
How do you think, can marriage help with our situation? In my French language course there are a lot of girls from different countries: Vietnam, Albania, Iran, Afganistan and all of them have working permits, although theirs husbands are not Swiss.
Sorry for a long thread.
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Old 18.03.2013, 23:41
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Re: B permit change from dependent to working (EU - Romania)

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My story is almost like yours. My boyfriend works here, cantone Vaud. He is French and he has a working permit B for 5 years. Last year in May I gave to authorities my file for a B permit on the basis that my boyfriend is finacially responsible for me (as we are not married). I got my permit only in November, and I havent seen that it was sans activite lucrative. Last week I got a job proposal. My potencial employer asked me to send him a copy of my permit. After a while he told me that he cannot give me the job, because I am not allowed to work here and its quite complicated to fix my papers.
Authorities told me that if I want to chande my permit I have to give them my job contract together with my depedent permit and they will decide wheather to give me working permit or not (!). It depends, particularly, on how many quotas are left for this year for EU-8 countries (I am from Latvia). And also, during the waiting period (it can take around 2 months)I am not allowed to work as well, even if my contract starts from first of April. and if i am not satisfied with rules I can come back to Latvia.
Now I am thinking about to ask the lawyer is there any possibilities for me to get the working permit before looking for a job. But, as I see from your experience the answer of the lawyer and authorities differs!!!
How do you think, can marriage help with our situation? In my French language course there are a lot of girls from different countries: Vietnam, Albania, Iran, Afganistan and all of them have working permits, although theirs husbands are not Swiss.
Sorry for a long thread.
Short anwser, no you cannot get permit without a job offer. That is what the quota limits are all about. Employers have to prove that they cannot find a Swiss or EU-17 national who can do the job first before they can apply for a permit for someone else. That costs them time and money, i.e. complicated to fix your papers. And you have identified why the other women have permits that allow them to work; they're married to people who also have the right to work/live here. You are not.

Can marriage help? Yes, but the authorities will make sure it's not a "sham" marriage and you shouldn't marry just to be able to live/work here. If you and your boyfriend truly and deeply love one another then that is an option open to you. But it will still take months to get the permit change approved I would think.

Not the best situation, but those are the rules. If you want to live/work here you have to abide by them. Good luck with whatever course you decide to take.
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Old 15.05.2013, 11:31
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Re: B permit change from dependent to working (EU - Romania)

Dear all,

Just a quick update: we decided, as we were going to get married anyway later this year, to do the papers now so he can start working. From the information I have gathered, he might have been given the right to work without a lot of fuss, but there would have always been the risk for them to say no. So we went the no-risk way.

Sorry to not bring any better news for those that don't want to get married, but it seems this B permit "sans activité lucrative" is for residence only, no work. Unfortunately not many employers are willing to jump through the hoops of getting a permit for someone, but it can happen, as in my case, 2 years ago. Larger companies also have better chances of getting the permit approved than smaller ones, that have never been through the process before.

As far as I understand, you can work even before the new permit is issued, as the "Service de l'emploi" no longer needs to approve the right to work, it is granted. There are no quota limits for spouses permits

Hope this helps a bit everyone. Cheers!
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