{"id":63751,"date":"2023-08-28T11:34:35","date_gmt":"2023-08-28T09:34:35","guid":{"rendered":"https:\/\/fedil.lu\/?post_type=publication&p=63751"},"modified":"2023-09-19T12:14:37","modified_gmt":"2023-09-19T10:14:37","slug":"detailed-note-on-the-new-procedure-for-hiring-third-country-nationals","status":"publish","type":"publication","link":"https:\/\/fedil.lu\/en\/publications\/detailed-note-on-the-new-procedure-for-hiring-third-country-nationals\/","title":{"rendered":"Detailed note on the new procedure for hiring third-country nationals"},"content":{"rendered":"
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\n \n <\/h2>\n
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The law of 7 August 2023<\/a> amending 1\u00b0 the Labour Code; 2\u00b0 the amended law of 29 August 2008 on the free movement of persons and immigration; 3\u00b0 the amended law of 18 December 2015 on the reception of applicants for international protection and temporary protection, was published in the \u201cJournal official\u201d<\/em> on 28 August 2023<\/p>\n

This law came into force on 1 September 2023.<\/p>\n

The new law authorises free access to the labour market for family members of third-country nationals (spouse, partner, father, mother, etc.) who hold a Luxembourg residence permit for family reunification purposes, as soon as they arrive in Luxembourg, for any salaried or self-employed activity. Family members of third-country nationals residing legally in Luxembourg are therefore no longer obliged to obtain a work permit or authorisation to carry out a self-employed activity.<\/p>\n

In addition, the law provides for changes to the procedure for obtaining the certificate issued by ADEM for the recruitment of an employee who is a national of a third country, certifying that the ADEM cannot propose a registered jobseeker who meets the required profile.<\/p>\n

In general, the law emphasizes that notifying ADEM of a vacant position is mandatory for any certificate request. This certificate can be requested directly when declaring the vacant position or subsequently, throughout the validity period of the offer which is two months, unless closed prematurely or an extension is requested. In this case, it is necessary to contact the “Third-Country Nationals” division of ADEM via email (info.moe@adem.etat.lu<\/a>).<\/p>\n

No certificate will be issued for a closed job offer.<\/p>\n

If a certificate is requested within the time limit, three situations may arise:<\/p>\n

1. The vacancy corresponds to an occupation in serious shortage<\/h3>\n

Under the new law, ADEM draws up an annual list of occupations in serious shortage during the first quarter of the year following the calendar year to which it refers, which will be published in the Official Journal. If the vacancy to be filled, for which the certificate is requested, falls under one of the occupations on this list, the Director of ADEM issues the certificate within five working days<\/strong>.<\/p>\n

This list is drawn up on the basis of the following criteria:<\/p>\n

    \n
  • the number of jobs declared to ADEM over a calendar year for the same occupation;<\/li>\n
  • the number of jobseekers registered with ADEM who have applied for a job in the same occupation;<\/li>\n
  • the number of vacancies advertised with ADEM for the same occupation for which it has not been possible for ADEM to find a candidate matching the profile of the vacancy.<\/li>\n<\/ul>\n

    It is therefore important for employers to declare all their vacancies to ADEM, even if they are convinced that ADEM will be unable to offer a candidate, in order to help fill the list of occupations in serious shortage. Indeed, if vacancies are not declared, it will not be possible to include a whole range of occupations in serious shortage on this list with a view to facilitating the recruitment of third-country nationals.<\/p>\n

    As the new law will come into effect on 1 September 2023, the list of occupations in serious shortage, applicable for 2023, will be exceptionally<\/u> published in the \u201cJournal officiel\u201d<\/em> and on the Employment Portal (adem.lu) on the same date. FEDIL will then inform its members accordingly.<\/p>\n

    2. No jobseeker registered with ADEM is identified for the vacancy<\/h3>\n

    If the vacancy for which the certificate is requested does not correspond to any of the occupations in serious shortage on the list drawn up by ADEM, ADEM will examine, for a maximum period of seven working days<\/strong> from the date of acknowledgement of receipt sent to the employer, whether the vacancy can be filled by a registered jobseeker.<\/p>\n

    If, at the end of this period, ADEM concludes that no jobseeker meeting the profile required for the declared position can be offered to the employer, ADEM issues the certificate to the employer within five working days<\/strong>.<\/p>\n

    This situation has an advantage over the situation prior to the adoption of the law in that the total time taken to issue the certificate is reduced<\/p>\n

    3. One or more jobseekers are identified for the vacancy<\/h3>\n

    If, during the examination provided for in the previous point, ADEM identifies one or more jobseekers corresponding to the vacancy, it proposes the persons identified to the employer within a further period of fifteen working days<\/strong>.<\/p>\n

    Starting from the last assignment, ADEM will notify the employer that they have a one-month period<\/strong> to provide feedback on the proposed jobseekers.<\/p>\n

    If the employer has fulfilled the obligation to provide an explanation for the reasons of rejecting the jobseeker, and if ADEM determines that it cannot propose a job applicant meeting the required profile for the declared position within this new timeframe, it will issue the certificate within a period of ten working days<\/strong>.<\/p>\n

    If the employer fails to comply with this obligation or if ADEM determines that a job applicant meeting the required profile for the declared position has been proposed, it will reject the certificate request within a period of ten working days<\/strong>.<\/p>\n

    This third situation is a major obstacle for employers, as it considerably lengthens the time taken to issue the certificate. For this reason, it is important for employers to declare their vacancies to ADEM, so that the occupations concerned can be included on the list of occupations in serious shortage.<\/p>\n

    The new law also stipulates that applications for certificates for vacancies that are manifestly exaggerated by the addition of unnecessary selection criteria that do not constitute a real and objective need will be refused.<\/p>\n

    Lastly, the new law considerably strengthens the penalties applicable in the event of a breach of the ban on hiring an employee who is a national of a third country who is residing illegally or in an irregular situation.<\/p>\n

    The validity duration of the certificate is three months and cannot be extended.<\/p>\n\n <\/div>\n<\/div>","protected":false},"excerpt":{"rendered":"","protected":false},"author":14,"featured_media":0,"template":"","class_list":["post-63751","publication","type-publication","status-publish","hentry"],"acf":[],"_links":{"self":[{"href":"https:\/\/fedil.lu\/en\/wp-json\/wp\/v2\/publication\/63751","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/fedil.lu\/en\/wp-json\/wp\/v2\/publication"}],"about":[{"href":"https:\/\/fedil.lu\/en\/wp-json\/wp\/v2\/types\/publication"}],"author":[{"embeddable":true,"href":"https:\/\/fedil.lu\/en\/wp-json\/wp\/v2\/users\/14"}],"version-history":[{"count":9,"href":"https:\/\/fedil.lu\/en\/wp-json\/wp\/v2\/publication\/63751\/revisions"}],"predecessor-version":[{"id":64134,"href":"https:\/\/fedil.lu\/en\/wp-json\/wp\/v2\/publication\/63751\/revisions\/64134"}],"wp:attachment":[{"href":"https:\/\/fedil.lu\/en\/wp-json\/wp\/v2\/media?parent=63751"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}