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Old 11.01.2007, 18:08
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Polish lady, here since 1999 - can she work?

Hi people!

We've got a situation here, love to hear your opinions.

I'm a Canadian living in Zurich since 1997, just about to get a B-permit that recognizes my status as a Mitarbeiter at the university of Zurich (before I was always on a student B-permit, so my time here never counted towards a c-permit).

My problems are solved for now, since my application to become a Mitarbeiter was approved, and I'm waiting for my new permit.

My wife is Polish (Poland is one of the 10 new EU countries) and came to work here 100% in Jan 1999. She worked for 1.5 years before getting into an accident that forced her to quit her job. Since then she's been doing a therapy, and she only works part-time, but isn't 'Erwerbstaetig' (non-working b-permit).
She wants to be able to work again, and the Arbeitsamt tells us that she's subject to the 'Inland-/EU-Vorrang' rules just as if she were coming from Poland for the first time. In reality that means she can't easily get a "real" job, because as soon as an employer sees that he/she has to apply for a permit for her - and that means proving that nobody in CH or the EU can do the job better than her - her CV will be chucked into the waste basket(!) In fact it's already happened once. So she really needs permission to work, period, and as far as I can tell that means a C-permit.

So the question is: can she get one?

A guy at the Kreisbuero told us he would have thought she'd be an exception to the 'Vorrang' rule because she already went through the process back in 1999 and now she's looking for a job for the *second* time. And yet, even he was told (after much discussion) by the Arbeitsamt that she would need to apply from scratch, which surprised him. Sure, there was a long break (not her fault though!) during which she was trying to keep her head above water, but now she needs to go through the whole process again?? She sure doesn't deserve it...she's been here for 8 years already, has worked 100% for 1.5 years, and has been *trying* to get back into the workforce since then, physical limitations permitting. She's certainly "well integrated" enough.

It's possible for a non-EU member to get a C permit after 10 years, so that would mean she could apply in 2009 at the latest. On the other hand, full-EU members need to be here 5 years.
But isn't Poland a special case, since it's a "halfway" EU member since 2004? What rules apply?

Anyone have any idea about this?

(Sorry for the long thread...!)
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Old 11.01.2007, 18:49
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Re: Polish lady, here since 1999 - can she work?

I would think that in your situation, once you get a B permit, your wife should be awarded one as well, not subject to contingents, in application of OLE, art. 13 lit. o.
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Old 11.01.2007, 18:55
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Re: Polish lady, here since 1999 - can she work?

Quote:
I would think that in your situation, once you get a B permit, your wife should be awarded one as well, not subject to contingents, in application of OLE, art. 13 lit. o.
Wait a minute: I have always had a B permit, just not one allowing me to get a job (I was being paid through the university but had a student status). Now I'm expecting to get another B permit, but one giving me the 'working' status here instead.

And what's OLE art. 13 lit. o. ??? Please advise!

Thank you
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Old 11.01.2007, 19:16
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Re: Polish lady, here since 1999 - can she work?

Quote:
Wait a minute: I have always had a B permit, just not one allowing me to get a job (I was being paid through the university but had a student status). Now I'm expecting to get another B permit, but one giving me the 'working' status here instead.

And what's OLE art. 13 lit. o. ??? Please advise!

Thank you
Yes, well, I meant once you get a "real" B permit.

OLE is the french acronym for the federal ordinance governing the application of the law that regulates immigration and market access for foreigners.

Art. 13 of said ordinance details the conditions where a permit is issued without being subject to contigent - at letter o it specifies that the permit should be issued to the spouse.
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Old 11.01.2007, 19:28
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Re: Polish lady, here since 1999 - can she work?

OK thanks to google I found the OLE document...it's quite interesting!

For myself and to make the thread more fun (!), here's what I understand of it. I'm quoting the german version, since probably more people here live in the German part of CH than the others.

---
2. Kapitel: Erwerbstätige Ausländer

1. Abschnitt: Höchstzahlen

Art. 12 Festlegung
1 Der Bundesrat legt periodisch Höchstzahlen fest für:

a. Jahresaufenthalter, die erstmals zur Erwerbstätigkeit einreisen oder erstmals eine Erwerbstätigkeit aufnehmen;

---

OK - this applies to her. So far so good.
But what about the next point?

---

2 Die Höchstzahlen gelten auch für Ausländer, die bereits in der Schweiz erwerbstätig waren, ohne der zahlenmässigen Begrenzung zu unterstehen, und nun die Voraussetzungen für eine Ausnahme nicht mehr erfüllen. Sie gelten jedoch nicht für Personen, die die Aufenthaltsbewilligung nach den Artikeln 3 Absatz 1 Buchstabe c oder 38 erhalten haben.

---

It says that the quotas also apply to foreigners who *have* had work permits before and are currently not eligible exceptions to the quotas..BUT only as long as they were never subject to the quotas in the first place! Since my wife DID go through the quota and testing process back in 1998-9, shouldn't that mean that *although* she's currently not working, this rule doesn't apply? I dunno, but let's look in article 13, "exceptions".

---

Von den Höchstzahlen ausgenommen sind:
b.
Ausländer, die in der Schweiz invalid geworden sind und ihre bisherige Tätigkeit nicht weiterführen können;
o.
der im gleichen Haushalt lebende Ehegatte und die eingetragene Partnerin oder der eingetragene Partner sowie die vor dem 21. Altersjahr im Rahmen des Familiennachzugs zugelassenen Kinder von Personen nach Buchstabe n Ziffer 3 beziehungsweise nach Artikel 4 Absatz 1 Buchstabe c, wenn sie eine Erwerbstätigkeit ausüben, für die eine fremdenpolizeiliche Bewilligung erforderlich ist;

---

Both of these points got my attention: first of all, my wife DID become somehow "invalid" due to an accident, to the point that she couldn't work for awhile, and since then only part-time. Doesn't that qualify her as an exception?
And the second one concerns me, since I'll soon be 'erwerbstaetig'. It looks like it's true: as soon as I have my work permit, she should also be eligible for one.

Can anyone confirm or deny this?

The question for me now is: OK, let's say she's an exception to the "quotas". So what - does that necessarily mean she can get a work permit without the Inland/EU-Vorrang? If so, how? Would she have to apply at the Migrationsamt for another permit, this time 'mit Erwerbstaetigkeit' (as my wife)? Somehow, in the end she needs a permit that allows her to simply be hired by whomever wants her.

Thanks to Shorrick Mk2 for his/her advice so far!
I see another reply just came in from Shorrick. Shorrick - can you answer my last question? What do we need to do, assuming I get my working b-permit in the next couple of weeks? Her b permit is currentl being renewed, but again as a 'therapy patient', i.e. nicht erwerbstaetig.

Cheers
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Old 11.01.2007, 19:33
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Re: Polish lady, here since 1999 - can she work?

Wait a minute, I just remembered something a guy at the Arbeitsamt told me on the phone yesterday, that I didn't quite understand at the time.

Here's point 2 again:
---
2 Die Höchstzahlen gelten auch für Ausländer, die bereits in der Schweiz erwerbstätig waren, ohne der zahlenmässigen Begrenzung zu unterstehen, und nun die Voraussetzungen für eine Ausnahme nicht mehr erfüllen. Sie gelten jedoch nicht für Personen, die die Aufenthaltsbewilligung nach den Artikeln 3 Absatz 1 Buchstabe c oder 38 erhalten haben.
---

It refers to people who were NOT subject to the contingent ("ohne der zahlenmässigen Begrenzung zu unterstehen"). The guy on the phone told me that since my wife worked so long ago (she arrived 1999), "those were old quotas". So maybe what he meant was that since the rules/contingents have changed since then, she's once again subject to the new quotas.
HOWEVER, again, it says in the same sentence that those people may nonetheless be exceptions to the rule - as detailed in art 13, and in that case she should fit into 1 if not 2 catagories (invalid and wife of a person with a work permit). Correct?
Cheers again
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Old 11.01.2007, 21:20
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Re: Polish lady, here since 1999 - can she work?

Quote:
I would think that in your situation, once you get a B permit, your wife should be awarded one as well, not subject to contingents, in application of OLE, art. 13 lit. o.
Shorrick: I'd love to hear your voice on this again: suppose the clause you pointed out is true: she's not subject to the continegent (quotas). That's from chapter 2, paragraph 1.

But I looked further into this document and the quotas don't seem to have to do with the fact that an employer still needs to prove that nobody but her can do the job:

http://www.admin.ch/ch/d/sr/823_21/a7.html
(chapter 1, paragraph 2, article 7).

Doesn't this mean that even if I have a work permit, her employer still has to try and hire someone in the EU or Switzerland before her?

Please advise : )
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Old 12.01.2007, 11:09
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Re: Polish lady, here since 1999 - can she work?

Apologies for coming back so late on this - since I am one of the most technologically backward persons, I still miss web access at home, and must rely on the resources my employer kindly puts at my disposal

It is indeed true that neither the law nor the ordinance does not take position on the "vorrang" or indigenous priority issue. However, in my opinion, this is a bit overblown; in general employers are reluctant to hire persons who require a B permit because a) the permit application might take a long time to process (it's been now three months that I am supposed to get only an employer change done on my permit...) - so not good for those positions where the refill is time sensitive and b) the application might be rejected on grounds of quotas being reached, which leaves the employer at square one again.

When the employer decides to hire a foreigner, it is supposed to have gone through the interview process with several persons, including "indigenous" in the sense of the law. Now, once you have decided to hire a foreigner, it is obviously an assumption based on both quantitative and qualitative criteria you have that s/he is the best fit for the job, not an absolute proof - no absolute proof could exist unless you employ each candidate for a period of time and then decide on the basis of actual results. Considering the employer has "burden of proof", as far as his assumption is backed up by a rigorous hiring process (i.e. interviews, meetings, documenting the reasons for a decision) it is very unlikely that your decision to hire will be challenged, and if indeed it is, he will have the ammunition to defend the choice made - especially in times of low unemployment such as these.
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Old 12.01.2007, 11:30
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Re: Polish lady, here since 1999 - can she work?

Quote:
When the employer decides to hire a foreigner, it is supposed to have gone through the interview process with several persons, including "indigenous" in the sense of the law. Now, once you have decided to hire a foreigner, it is obviously an assumption based on both quantitative and qualitative criteria you have that s/he is the best fit for the job
Well, I just convinced my lab at the university to augment my status from student to Mitarbeiter, and only because of my specialised work did they manage to get around the whole job-search process. They had to write a letter explaining my job and why I'm absolutely amasing and irreplaceable, basically. But in the official documents it says that usually the employer has to supply proof that they posted the job in CH and in the EU, and explain why the foreigner is the only one of all candidates that can do the job. This takes time and is not necessarily already part of the interview process.
Also, my employer had to pay 600 Franks for some reason or other, once my dossier was accepted! So they also need to pay cash up front to hire me. I have a highly specialised technical job and I've been here for years, and still it wasn't that easy for my employer.

Now take someone who's a foreigner musician applying for, say, a teaching job or musician job. What employer in their right mind is going to jump through hoops for her? Nobody. Not if there are a few other CVs sitting right there from Swiss candidates.

I've made an appointment with a lawyer who's hopefully going to tell us really, truly, if it's possible for her to get a work permit or not, and if yes, how. That's on Jan 22nd.
If I think of it I'll post the result here then...
(Or if find something out from the Migrationsamt in the meantime.)
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Old 12.01.2007, 13:07
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Re: Polish lady, here since 1999 - can she work?

Just a quick update/info: for those who aren't aware of it, there are a couple of places to get info on foreigner-related questions.
First, the Beobachter (www.beobachter.ch). They have some basic info on their web site, but if you pay for their journal (doesn't cost too much) you can send them emails or phone them to talk to their experts in different fields (including Auslaenderrecht). I've talked to 2 different people there so far, and they've both been friendly, but they don't always know the details of your questions either. But they can point you in the right direction anyhow.

They recommended another place to go to for more detailed (and free) consultations: Infodona, but only for people residing in Zurich. http://www.stadt-zuerich.ch/internet.../Infodona.html
I made an appt with them about my wife's problem. They give you up to an hour to pour out your problems and questions, and hopefully can give good advice.

Cheers, runway
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Old 10.02.2007, 17:12
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Re: Polish lady, here since 1999 - can she work?

OK, an update.

Infodona: we talked with a Frau Druessel there for 1.5 hrs, and frankly, she was a little scatterbrained and didn't really know enough to be able to help us seriously. We left more confused than when we came. She said she's been there for many years and has never seen such a complicated case as ours(!) Sheesh.

Then we saw a lawyer who specializes in Auslaenderrecht (foreigner law) amongst other things, at the 'Anwaltskollektiv' - his name was Peter Nideroest, and a consultation costs 60 CHF/hr. He was much clearer than Frau Druessel, and seemed to know more or less what he was talking about. Still - he wasn't able to tell us *for certain* what our situation was, but had a "strong feeling" that my wife should be able to get a permit to work anyway she wants. As I said - her main problem is that she's a freelance musician and needs to be able to work for various groups at short notice, or take on private students, or even organize her own concerts and such. The lawyer confirmed that "technically" a Polish person with a B permit needs a work permit for every employer, but that this wasn't a problem.

Oh yes - he also told us right away that for Poland (and the other new-EU countries), neither the so-called ANAG nor the new 'AuG' documents (describing foreigner-law) apply at all(!) It the FZA (Freizuegigskeitsabkommen) and *only* the FZA that determines what rules apply.

Anyhow, somehow we still weren't satisfied because we still didn't know what kind of permit she'd have to apply for, and how. The lawyer told us to go ask the people at the work office about her situation, and what does she need to do to get a permit allowing her to work freelance. He said they pretty much *have* to give her one, it's in the FZA. OK...sounded good, but we still weren't sure his instincts were correct.

Next step in the saga: we went to an info-session at the 'Fachstelle fuer Selbstaendigwerbende' of the Amt fuer Wirtschaft und Arbeit, in Oerlikon (Binzmuehlestrasse 15). They're a sort of sub-branch of the office that issues the work permits, dealing specifically with advising people trying to become their own employer. The session was interesting, but too general to help us.

The next day we got our new B permits in the mail - both with the phrase "Berechtigt zur Erwerbstaetigkeit" (permitted to work) ! Wow. I was now officially a "worker" in Switzerland for the first time after almost 10 years as a phd/post-doc, and my wife was now here as my wife, but also oofficially able to work. But that didn't change the fact that we thought she'd still need to get a "freelance" work permit of some sort.

We made an appointment with the Fachstelle of the work office, because I somehow suspected she would need to become 'selbstaendig' anyhow, and had a talk with the boss there, the same one who had given the open info-session. He was a cool, down-to-Earth guy who tells it like it is.
FINALLY, we got concrete information and advice from someone who seemed to know what he was talking about, and who's at least indirectly a part of the office that hands out permits. (funny point - he said the people down at the main branch on Limmatquai often don't know what the deal is!)
It turns out that my wife in a better position than we thought.

1) she can work pretty much without worrying about having her employers apply for work permits. He says the aplications for these permits are really just intended for people coming into Switzerland for the first time, and to keep the nice Swiss people from being too afraid of being overrun by "eastern Europeans". If she DOES get a 100% job, she can even fill out the form for the employer herself and tell him that she's allowed to work without any strings attached. But in fact she could simply go ahead and work without worrying about it. With her permit, she can work, period. So even if it says on paper that she needs a fancy work permit, it's not *really* required.
2) in the freelance scenario, she could start keeping track of earnings and expenses, making a name for herself or whatever, and after a 6 month "preparation" phase like this she can apply for this 'selbstaendig' status and apply at the AHV. Something like that. The disadvantage is that her retirement and taxation would not be handled well, and that potential employers might still be nervous hiring her for whatever reasons.
3) THE BEST solution for her was this: she signs up with a so-called payrolling agency, something like a temp agency who becomes your employer - they pay you a salary - only YOU have to look for your own work. All they do is act as your employer once you do find a job(s). She sends them her earnings slips, expenses and so on, and they pay her a salary minus all the usual things like taxes, pension, etc. and of course their own fee of something like 6%. This way she has a single employer that ensures she's saving up for retirement AND - best of all - she can apply for jobs without having the employers worry about paying her taxes at the source (quellensteuer), getting her a permit, etc. - it's all done by her temp agency in advance! Makes the employers feel better about hiring her, because she's already taken care of by the agency, permits and all.

So that's what we're going to do.

To summarize: not many people - EVEN in the main branch of the work office (Arbeitsamt) OR the Migrationsamt themselves, were able to tell us *for real* whether (and how) she'd be able to work. It was a nightmare trying to find out. In the end, it looks like citizens of the new EU countries (EU-10 or EU-8) who are *already* here with a B permit (not including students) can work without worrying about further permits.
It may look different on paper, or even if you ask them at the Migrationsamt, but according to this Mr. Ponzio at the Fachstelle for the work office, it's really that simple. The whole on-paper official stuff is just there to keep the Swiss happy that there are all kinds of rules making it possible to control the influx of "strange" foreigners from the "East" (actually Poland is in central Europe, but OK - the language is eastern European).

That's the news from us.

It's been a long haul, but not we can finally begin living more or less like human beings again! Yay!

Sorry for the long post, but hey it was a long story, and maybe someone will get an idea about their own story...
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