Some posted workers may need to consider Van Der Elst route

IMPACT – MEDIUM

What is the change? Authorities in France’s Labor Department have said that they have temporarily stopped issuing intracompany transfer permits to non-EU applicants who hold work and residence permits in another EU state.

What does the change mean? Affected non-EU nationals must consider other options, including the Van Der Elst process.

• Implementation time frame: Ongoing.
• Visas/permits affected: Intracompany transfer permits, Van Der Elst visas, residence permits.
• Who is affected: Employers and non-EU nationals who hold work and residence permits in an EU state other than France and who remain on home payroll when posted to work within France.
• Impact on processing times: Van Der Elst visas take between one and five weeks to process, and times may vary depending on the consular post. A residence permit may also be required once in France. Processing time for the residence permit is approximately three to six months.
• Business impact: Businesses may have to adjust timelines and start dates due to the changed processes.

Background: The Van Der Elst process stems from a 1994 European Court of Justice case protecting the rights of non-EU nationals legally employed in an EU country to provide temporary services, on behalf their employer, to companies in other EU countries. The change in France may make Van Der Elst the easiest route for many affected employees – at least for the time being.

Visa nationals must obtain a Van Der Elst visa prior to entering the country, a process that can take between one and five weeks, and may need to obtain a residence permit after arriving in France. Visa-waived nationals can enter France without a visa and proceed with applying for a residence permit. Affected non-EU nationals should apply for a residence permit as soon as possible and no later than within two months of arrival.

The residence permit process involves assembling proper documentation and visiting the appropriate prefecture. On the first visit, non-EU nationals may receive a temporary residence card and must make an appointment to submit a permanent residence application. Applicants then return to the prefecture for their appointment and, later, to pick up their residence permit.

BAL Analysis: Employers should take note of the change and discuss options for affected employees with their BAL attorney. Those who pursue the Van Der Elst route should consult their BAL attorney about the process, including documentation requirements and travel restrictions for posted workers.

This alert has been provided by the BAL Global Practice group and our network provider located in France. For additional information, please contact your BAL attorney.

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