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  #21  
Old 22.09.2020, 14:32
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Re: Should Dependent Spouse request for independent B?

Yes because the countries you mention (Germany, France, Italy as well as Austria, Liechtenstein, Belgium, Netherlands, Spain, Portugal, Greece, Denmark) have binding settlement agreements with Switzerland allowing for respective citizens the right (under certain conditions) to a C permit after 5 years of a non-temporary stay (see above for PhD/post-doc status for EU citizens) These agreements of international law have nothing to do with EU membership.

In practice, as you say, the law is very much applied.
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  #22  
Old 23.09.2020, 14:16
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Re: Should Dependent Spouse request for independent B?

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Have highlighted for you below.

And for the third time yes a family regroupement permit is durable

It could be you were never really admitted to the Swiss labor market and are just a dependent of your wife (who is a student), which would allow work on a non-quota permit but whose stay is dependent on her PhD salary. This could cause problems the moment your wife graduates.
Is there a way to tell if I was "admitted to the Swiss labor market" or not? I have family regroupement avec activité, does this mean I was admitted to the job market? Is there such thing as family regroupement sans activité?

My wife got the call a few weeks ago saying that she wasn't eligible for a permis C yet and a letter in the mail refunding the difference in cost for her permit, they said they will renew the B at the moment until the end of her renewed postdoc contract (again he company has tonnes of funding through the university so she is paying employees, including herself, through university post doc contracts.)

I have gotten neither a call nor a letter of refund so I'm hoping I am still being considered for a permis C and that my family regroupement is considered durable, despite being regrouped with someone on a formation permit.
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  #23  
Old 23.09.2020, 16:30
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Re: Should Dependent Spouse request for independent B?

You would have been admitted to the Swiss labor market if you obtained an independent permit subject to quotas through your employer (which would have had to go through the non-EU hiring process).

Family regroupment permits are durable but their rights stem from the main permit holder’s. In your case your wife is on a temporary formation B permit (post-doc), which makes your stay temporary too (although you are legally allowed to work until your wife completes her post doc).
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  #24  
Old 24.09.2020, 14:39
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Re: Should Dependent Spouse request for independent B?

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What were the previous permits / status during the past 10 years of your husband?

Given that your stay as a PhD is temporary, so is his (as your dependent).

As an EU PhD, assuming you work more than 15 hours per week, the moment you obtain a work contract (of more than 12 months) outside of university your PhD years will retroactively count towards C.

For your husband it will depend what his previous stays were but in any case art 34 al 5 cannot be applied so long as you are still on a PhD / student permit
Thanks for the reply. I thought the same. He used to be a student here, so previously he had a student B permit. Still we will try it and lets see...
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  #25  
Old 24.09.2020, 14:40
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Re: Should Dependent Spouse request for independent B?

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Is there a way to tell if I was "admitted to the Swiss labor market" or not? I have family regroupement avec activité, does this mean I was admitted to the job market? Is there such thing as family regroupement sans activité?

My wife got the call a few weeks ago saying that she wasn't eligible for a permis C yet and a letter in the mail refunding the difference in cost for her permit, they said they will renew the B at the moment until the end of her renewed postdoc contract (again he company has tonnes of funding through the university so she is paying employees, including herself, through university post doc contracts.)

I have gotten neither a call nor a letter of refund so I'm hoping I am still being considered for a permis C and that my family regroupement is considered durable, despite being regrouped with someone on a formation permit.
Please let us know how all passed! Fingers are crossed anyway!
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  #26  
Old 24.09.2020, 15:19
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Re: Should Dependent Spouse request for independent B?

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Is there a way to tell if I was "admitted to the Swiss labor market" or not? I have family regroupement avec activité, does this mean I was admitted to the job market? Is there such thing as family regroupement sans activité?
You are admitted. Regroupement avec activité means exactly that and yes there can be regroupement sans activité.
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  #27  
Old 02.10.2020, 18:44
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Re: Should Dependent Spouse request for independent B?

Just a little update here. Since I like scrolling through laws, it seems that the Directives et commentaires on the applicability of student permits towards stay was updated mid 2019.

http://www.sem.admin.ch/dam/sem/fr/d...ngen-aug-f.pdf

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3.5.2.1 Délais
...

Les séjours temporaires (études, formation, traitement médical, cure, courts séjours) ne sont pas pris en compte dans le séjour ininterrompu des cinq dernières années nécessaires pour le délai d’obtention de l’établissement. Par contre, les séjours effectués à des fins de formation ou de formation continue (art. 27 LEI) sont comptabilisés lorsque, une fois ceux-ci achevés, l’étranger a été en possession d’une autorisation de séjour durable pendant deux ans sans interruption (art. 34, al. 5, LEI) ou si le séjour au titre d’une autorisation de courte durée a acquis un caractère durable en raison, par exemples, d’un contrat de travail de durée indéterminée ou parce que les autorités et l’étranger sont partis de l’idée qu’il s’agissait dès le début d’un séjour durable.
This makes it seem the 2 year requirement after graduation isn't really necessary, you can also get a permanent contract which makes your short term permit have the "character" of a long term permit.
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  #28  
Old 02.10.2020, 19:27
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Re: Should Dependent Spouse request for independent B?

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Just a little update here. Since I like scrolling through laws, it seems that the Directives et commentaires on the applicability of student permits towards stay was updated mid 2019.

http://www.sem.admin.ch/dam/sem/fr/d...ngen-aug-f.pdf



This makes it seem the 2 year requirement after graduation isn't really necessary, you can also get a permanent contract which makes your short term permit have the "character" of a long term permit.
By autorisation de courte durée in the text you quote they refer to an L working permit obtained from the federal quota (after successfully having gone through the non-EU hiring process), not a temporary study permit (séjour temporaire pour formation).

This line was added in 2019 to not penalize non-EU graduates of a Swiss higher education institution when requesting a C who had obtained a permanent working contract outside of university immediately after graduating, but were unlucky enough to find the quota for a working B permit had run out and were given an L instead (practice is to issue 2x L before issuing a B in case a B is not issued directly).
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  #29  
Old 13.10.2020, 17:53
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Re: Should Dependent Spouse request for independent B?

To update, at this point both my wife and I were rejected from the C and given a B until the end of her next EPFL extension.

I am fighting the decision because I could have been put into the quota system years ago through my employer, highly specialized, highly trained, exactly in my field, willing to apply for my permit etc, but I guess SPOP thought it was easier at the time to just give me a family regroupement permit because my wife (who moved to Switzerland a year after me) was still doing a PhD and they could give me a work permit without a quota. Now I am being punished for that decision because even if I had been given my own L at the time I would be eligible for a C after my more than two years on a permanent contract.
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  #30  
Old 13.10.2020, 18:05
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Re: Should Dependent Spouse request for independent B?

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To update, at this point both my wife and I were rejected from the C and given a B until the end of her next EPFL extension.

I am fighting the decision because I could have been put into the quota system years ago through my employer, highly specialized, highly trained, exactly in my field, willing to apply for my permit etc, but I guess SPOP thought it was easier at the time to just give me a family regroupement permit because my wife (who moved to Switzerland a year after me) was still doing a PhD and they could give me a work permit without a quota. Now I am being punished for that decision because even if I had been given my own L at the time I would be eligible for a C after my more than two years on a permanent contract.
Did you and your wife have separate, independent permits the first few years here, i.e. you on your own post-doc (student) permit and her on her own PhD (student) permit? And it was only after you wanted to work for the startup that they switched you to being a dependent?
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  #31  
Old 13.10.2020, 18:10
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Re: Should Dependent Spouse request for independent B?

Yes, I had my own independent permit for 4 years, when my wife arrived she got her own independent permit. So we had our own permits for 4 and 3 years respectively, then when I switched to the startup they switched me from my own permit to a family regroupement permit. I have now been on the family regroupement permit, with a permanent contract for a little over 2 years.
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  #32  
Old 13.10.2020, 18:20
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Re: Should Dependent Spouse request for independent B?

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Yes, I had my own independent permit for 4 years, when my wife arrived she got her own independent permit. So we had our own permits for 4 and 3 years respectively, then when I switched to the startup they switched me from my own permit to a family regroupement permit.
Then your theory kind of makes sense. By giving you a dependent permit, they didn't need to use anything from the quota and on the surface it was easier for the employer too.

Unfortunately, I think what that means is you moved from one student permit to another, instead of moving from student to fully employed. Thus you're still a student and haven't had 2 years of working beyond that (in their eyes).
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  #33  
Old 13.10.2020, 23:49
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Re: Should Dependent Spouse request for independent B?

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To update, at this point both my wife and I were rejected from the C and given a B until the end of her next EPFL extension.

I am fighting the decision because I could have been put into the quota system years ago through my employer, highly specialized, highly trained, exactly in my field, willing to apply for my permit etc, but I guess SPOP thought it was easier at the time to just give me a family regroupement permit because my wife (who moved to Switzerland a year after me) was still doing a PhD and they could give me a work permit without a quota. Now I am being punished for that decision because even if I had been given my own L at the time I would be eligible for a C after my more than two years on a permanent contract.
Sorry but did your employer apply for a work permit on your behalf at the time? Or did you ask them to? Even if they had, the application would still have had to go through cantonal and federal approvals with no guarantee of success.

I am having a hard time understanding under what legal grounds you are contesting SPOP as nobody has a right to a C permit, even less if the conditions are not met: temporary study stays do not count for C permit.
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  #34  
Old 15.10.2020, 11:21
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Re: Should Dependent Spouse request for independent B?

I am not legally contesting them, but I am discussing with them and now with the employment service also at their recommendation. I will see what comes of it. I was given the option at the time to apply with my work permit/employer or as family regroupement and they recommended I do it as family regroupement because it was easier. I was not informed that this would invalidate my time working towards my C, so I am seeing if there are any options. Perhaps not and it was just a bad choice on my behalf, but non-the-less I am looking now to switch off the family regroupement to my own permit so I'm not stuck in student status another year.
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  #35  
Old 15.10.2020, 11:25
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Re: Should Dependent Spouse request for independent B?

Yep key now is getting an independent working B permit (non-student) via your employer before anything else
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  #36  
Old 15.10.2020, 14:41
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Re: Should Dependent Spouse request for independent B?

Well, I got the response:

"Afin d'assurer une utilisation rationnelle des contingents, le Service de l’emploi n’octroie pas de permis contingenté, s’il y a une possibilité d’octroi d’un permis par regroupement familial."

So basically from the start my status was doomed when my wife took up her PhD position, because they don't give quota permits if there is an option not to.
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  #37  
Old 15.10.2020, 15:27
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Re: Should Dependent Spouse request for independent B?

Just try again once your wife’s time at EPFL is over and, if ultimately granted a quota permit, switch her to being your dependent.
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  #38  
Old 15.10.2020, 15:45
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Re: Should Dependent Spouse request for independent B?

Yes, otherwise I'm sure she will be able to get her own work permit which will be durable. It's just really annoying, she has at least another year at EPFL, but they say,

"Les post-doctorants peuvent être admis en vertu de l’art. 40 OASA s’ils souhaitent poursuivre leur formation dans le cadre de projets de recherche dans le domaine de leurs études et de leurs travaux précédents. La durée maximale de ce statut est de huit ans. Dès lors, tant que votre épouse peut bénéficier de ce permis, il ne sera pas possible que vous obteniez votre propre statut."

So it could be 8 years under a student permit, which will make me 9 years effectively under a student permit, then assuming one of us gets a durable permit it will be another 2 years. So that is 11 years here before I am eligible to apply for a C (instead of 5 as a Canadian).

Neither of us are students, we both have full time positions at startups, there just seems to be something broken with the system when you get trapped in student status because Switzerland and the EU administer tonnes of "startup" grants through the university, (Bridge, Innogrant, Innosuisse projects, etc) so you get stuck with the status of a student while working for a company. Her success in raising funds has become a major negative for our residence status.
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  #39  
Old 15.10.2020, 16:00
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Re: Should Dependent Spouse request for independent B?

Swiss post docs in Canada going through the same issues would tend to agree with you
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  #40  
Old 15.10.2020, 16:08
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Re: Should Dependent Spouse request for independent B?

Actually I had a friend who was swiss when I was doing my PhD in Canada, he was able to get his Canadian citizenship as a post doc. Not to mention all the other people, Iranians, Chinese, Mexicans, Indians, etc who got their Canadian citizenship while doing a PhD. It's really not comparable, you just have to live in Canada 3 of the last 5 years to be eligible for citizenship.

You can also become a permanent resident of Canada easily as a university student. If Switzerland had the same rules as Canada I'd be Swiss by now.
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