Regulation of the practice of immigration and immigration specific legislation in Belgium

In Belgium there are 3 regions. Employment is a regional competence, while residency is a federal one. Consequently, there is a lot of legislation concerning foreign national workers. On top of this, there is also additional regional legislation and EU laws and regulation.

The combination of EU, federal, regional laws creates a puzzle that makes reference to the law very difficult in many cases and requires vast knowledge and experience in this practice of law.

Existence of quotas or other general requirements, such as registrations of a company, to be able to send employees

No quotas are in place; on the contrary, Belgium tries to attract as much foreign talent and highly qualified personnel as possible.In Belgium, there is no requirement to have an actual entity present in the country (unless of course, for the EU ICT permits, see below). It is possible to assign your employees directly to a client site/Belgian end customer.In principle, there is a labor market test, so the authorities would check if there is not already qualified personnel available in the Belgian/EU labour market for the specific role. This requirement is waived for certain categories, for instance, the highly qualified employee category or the EU Blue card.However, there are categories available for so-called “bottleneck professions” (in Flanders/Walloon region no labour market test in that case, if the individual fall under the official list of bottleneck professions that is issued every 1year (Wallonia) or 2 years (Flanders), in Brussels labour market test still required, although there is not formally a list available for “bottleneck professions”, but the unofficial list can be used for situations where no candidates can be found, and the worker is a national of a state with which Belgium has an international agreement on employment (Algeria, Bosnia and Herzegovina, Kosovo, Republic of Macedonia, Morocco, Montenegro, Serbia, Tunisia, Turkey)).EMG-in-text-banner1

Overview of basic immigration process for a business wanting to send an employee on an intracompany transfer

The EU ICT Directive has not been completely implemented in Belgian and regional legislation. It was expected that the final piece of legislation (which would put into force Title II, chapter 3 of the Cooperation Agreement of 6 December 2018) was going to follow in 2019 or 2020, but as of yet, this is still not in place.For the moment Belgium only implemented the short term EU ICT mobility, by which individuals are allowed to work in any of the 3 regions when holding an EU ICT permit of another EU country, for a maximum of 90 days, upon notification to the Regional authorities. There is no possibility to apply for a long term EU ICT permit in Belgium (yet), nor for the mobile permit (easily obtaining a Belgian EU ICT permit when you already hold one in another EU country).As a result, for intracompany transfers, we would currently have to look at the existing options available, such as a single permit as a trainee (in Flanders this would still fall under the Work Permit B, so not the single permit), as a highly qualified employee, or as an executive.However, once the EU ICT permit will be available in Belgium, it would still be an option to apply for the single permit as a highly qualified employee for someone being assigned to a company in Belgium. In other countries (for instance the Netherlands), an individual in the same situation is obligated to apply for the EU ICT option.A single permit is the combined work and residence permit, which has been put in place in Belgium, as of January 2019, for employees coming to work in Belgium for more than 90 days.Legally speaking the average processing times are 90 days. However, these applications simply have not been filed yet. When we compare it to the legal processing times of the regular single permit applications these were to be completed within 120 days. In 2019 we witnessed that the processing indeed could take that long (or even longer in some cases), but we have seen the processing times being lowered significantly due to an introduction of some efficiency in the process and more government personnel being made available. So once longer-term EU intracompany transfer will be fully implemented, we do not expect it to take a full 90 days.

Newly hired employees on assignment

In Belgium it is allowed for a company to send newly hired employees. The main type of work and residence authorization is the single permit for highly qualified personnel.A bachelor/master degree is required and there is a minimum salary requirement. 
  • Flanders: annual gross salary of EUR 42,696 (January 2020)
  • Wallonia and Brussels: annual gross salary of EUR 42,869 (January 2020)
A local employment contract is not required. The assignment letter and the employment contract with the foreign employer will have to be provided though.The permit is generally valid for 3 years and can be extended. In Brussels and Wallonia, there is the requirement to provide payslips (and other documentation) at the latest one month after each year passed as proof of compliance with the annual salary requirement.The average processing times are legally speaking 120 days as of the date of application (counts as of the date the application is registered).

General advice to client thinking about sending an employee to Belgium

The most straight forward immigration routes available are the ones in place for highly qualified employees.So my advice is to focus on these candidates. Make sure they have the relevant salary figures and university degree. Some employers are looking for blue-collar workers, and for these, there are other available options(“bottleneck” professions).  An additional recommendation is to discuss the scenario with a legal professional, before making an HR decision, to allow a full-scope examination and assessment of the available options. Are there any hot topics or trends you wish to share?The regional Ministries have taken several urgent measures to ensure continuity of service and to deal with some urgent problems resulting from the strict Covid-19 measures which are currently in place in Belgium.For example:
  • Application via email
  • Temporary extension of residence and work authorization/work permit for employees who cannot return to their home country (max. 3 months): expedited work authorization/work permit application
  • Incomplete applications will not be declared inadmissible after 15 days
  • Periods of temporary unemployment shall be taken into account in the calculation of the salary threshold
What could have taken ages to be implemented in our country and the different regions in particular in normal circumstances, has now been put in place almost immediately once it was decided to go into “lockdown”.This crisis has shown that it is very much possible for authorities to adapt and to evolve into this digital age. Let us hope that after the crisis, these decisions will not be reversed, or worse, that all creativity and efficiency will dissolve (I am thinking here on the promise/intention all authorities, federal and regional, made in setting up an online tool in cooperation to file applications, which will, in any case, will be a reality in the Flanders region by the end of this year).

Get in touch with Expat Management Group

Read more  in our dedication immigration section.

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