UDI 2016-003 Early employment and other schemes for working before a permit has been granted

1. Introduction

This guideline replaces RS 2011-033. Sections 6-8 and 10-4 of the Immigration Regulations have been amended and apply to all applications for early employment received after 1 May 2016. The purpose of the new guideline is to provide guidelines for how the changes are to be implemented in practice.

Section 3 deals with skilled workers with at least three years of higher education who apply for a permit pursuant to Section 6-1 first paragraph of the Immigration Regulations. Seamen who apply for a permit pursuant to Section 6-6 of the Immigration Regulations, seconded employees of an international company who apply for a permit pursuant to Section 6-13 of the Immigration Regulations, and trainees employed in an international company who apply for a permit pursuant to Section 6-21 of the Immigration Regulations are dealt with in section 4.

Section 5 briefly discusses the provision for residence permits under consideration, cf. Section 57 of the Immigration Act, since this also stipulates a right to work before the permit applied for has been granted.

2. Permit requirement

Any foreign national who intends to take up employment with or without remuneration or who wishes to engage in business activity in the realm must have a residence permit giving him or her the right to take up employment or to engage in business activity, unless otherwise provided in or pursuant to the Act, cf. Section 55 first paragraph of the Immigration Act. One of the exemptions from the requirement for such a residence permit applies to persons who have a right to work until their application has been processed, cf. Section 1-3 of the Immigration Regulations. In other words, the exemption from the requirement ceases to apply as soon as the case has been decided. This means that the right to work ceases immediately if the application is rejected.

3. Early employment start for skilled workers with at least three years of higher education.

The early employment scheme means that employers, including international companies, who meet the criteria set out in Section 6-8 of the Immigration Regulations can recruit labour directly and let employees start working before their application has been processed. The scheme only applies to skilled workers who apply for a permit pursuant to Section 6-1 first paragraph of the Immigration Regulations, and who, as a minimum, have completed a three-year university or university college education.

3.1 Definitions

Skilled worker with higher education
A person who has, as a minimum, completed a three-year university or university college education is covered by this scheme. The education must be documented in the form of a diploma or similar which states the duration and degree/title attained.

Employer
By employer is meant anyone who has engaged an employee to perform work in his or her service. It is a precondition that the person in question has a place of business in Norway, is registered in the Central Coordinating Register for Legal Entities and is actually engaged in running a business in Norway. For more information about the term ‘employer’, see UDI 2010-048 (only available in Norwegian).

Confirmation
In this context, a confirmation is a document issued by the police to an employer or employee (applicant) that gives the employee the right to start work before a permit has been granted. This kind of confirmation is not a residence permit and does not therefore confer the right to repeated entry into the realm, cf. Section 60 third paragraph letter (c) of the Immigration Act, or to stay in other Schengen countries.

If the police decide not to issue a confirmation, this decision cannot be appealed. Chapters IV to VI of the Public Administration Act do not apply, cf. Section 10-4 eighth paragraph of the Immigration Regulations.

Complete application
An application is deemed complete when the necessary appendices are attached. Which appendices must be attached is stated in the UDI’s checklist for skilled workers, available at the UDI’s website (external link).

3.2 Procedure

The early employment scheme can both be used when the employee applies for a residence permit him or herself and when the employer does so on behalf of the foreign national.

3.2.1 The employer submits an application for a permit on behalf of the employee (applicant)

An employer who has written authorisation from the employee, can submit an application for a residence permit as a skilled worker on his or her behalf, cf. Section 6-1 first paragraph of the Immigration Regulations, cf. Section 10-4 second paragraph of the Immigration Regulations. A complete application must be submitted and the employer must at the same time request a confirmation of early employment start.

Employers are responsible for ensuring that the employees meet the conditions for the type of permit applied for, including the condition that the relevant specialist authority has given its approval or authorisation in the case of occupations/professions that are subject to statutory or regulatory qualification requirements.

The police shall check that the employer meets the conditions that apply to the early employment scheme, cf. Section 6-8 of the Immigration Regulations. The police shall then check that the application is complete, including that the appendices contain the necessary signatures. The police shall also check that the foreign national has, as a minimum, completed a three-year university or university college education. If there is doubt as to whether the conditions are met, the police shall not issue a confirmation. Nor shall a confirmation be issued when the foreign national can be rejected, cf. Section 17 of the Immigration Act or when he or she can be expelled, cf. Section 66 of the Immigration Act. For further limitations, see section 3.2.3 below. The confirmation is registered as an administrative decision in the computer system used for immigration and refugee cases (DUF), cf. Section 10-4 seventh paragraph of the Immigration Regulations. After a confirmation has been issued, the application is sent to the UDI for consideration.

After receiving a confirmation from the police, it is the employer’s responsibility to inform the employee of his or her right to enter Norway and, if necessary, to contact the foreign service mission to be issued an entry visa.

Entry visa
If an entry visa is required, the foreign national must contact the foreign service mission in his or her country of origin or country of residence. It is specified in this context that only Norwegian foreign service missions are entitled to issue entry visas in connection with the early employment scheme. If the applicant is living in a country in which Norway is represented in immigration cases by another country, he or she must therefore contact the nearest Norwegian foreign service mission. The visa is granted pursuant to Section 3-13 second paragraph of the Immigration Regulations and issued on the basis of the police registering a confirmation in DUF. The confirmation of early employment start must be presented at the foreign service mission, cf. Section 10-4 sixth paragraph of the Immigration Regulations. Before issuing an entry visa, the foreign service mission must check that circumstances do not exist that constitute grounds for refusing the employee entry into or residence in Norway pursuant to other provisions of the Act, cf. Section 59 of the Immigration Act. If such circumstances exist, an entry visa shall not be issued.

If the employee, after starting work, returns to his or her country of origin or original country of residence, and wishes to return to Norway before the application for a permit has been decided, a new entry visa must be issued in accordance with the aforementioned procedures. If the residence permit application has already been granted, an entry visa is issued pursuant to Section 3-13 first paragraph of the Immigration Regulations.

3.2.2 The employee submits the application him or herself

A first-time residence permit shall be granted prior to entry into Norway, cf. Section 56 first paragraph of the Immigration Act. However, it follows from Section 10-1 first paragraph of the Immigration Regulations that this requirement does not apply to foreign nationals who are qualified skilled workers, cf. Section 6-1 first paragraph of the Immigration Regulations. To be entitled to submit an application from Norway, it is a condition that the skilled worker has legal residence and that he/she is not staying in the realm in connection with an asylum application or pending departure after receiving a rejection of an asylum application, cf. Section 10-1 third paragraph of the Immigration Regulations. This is further described in UDI 2013-007 (only available in Norwegian). 

If the foreign national is applying for a permit on new grounds, the conditions set out in Section 61 seventh paragraph of the Immigration Act must be met.

An employee who has as a minimum completed a three-year university or university college education, and who has legal residence in the realm, cf. the above, must submit a complete application for a residence permit as a skilled worker, cf. Section 6-1 first paragraph of the Immigration Regulations, to be covered by the early employment scheme, cf. Section 10-4 first paragraph of the Immigration Regulations. This entails that the necessary appendices are attached and that his or her identity is documented by producing a passport or other recognised identity document, cf. Section 10-4 fourth paragraph of the Immigration Regulations. The employee must at the same time request a confirmation of early employment start. When the police have checked that a complete application has been submitted, they will issue a confirmation to the applicant giving him or her permission to work for a specific employer until the application has been processed. The confirmation is registered in DUF, cf. Section 10-4 seventh paragraph of the Immigration Regulations. The application is then forwarded to the UDI to be processed. Cases in which a confirmation shall not be issued are described in section 3.2.1 above.

3.2.3 Groups not covered by the early employment scheme

When a residence permit application is submitted by a national of Iran or North Korea who falls under the early employment scheme, the police shall nonetheless not issue a confirmation, cf. Section 10-4 fourth paragraph of the Immigration Regulations. The reason for this is that the UDI has a particular need to consider the information available in these cases pursuant to Section 6-35 of the Immigration Regulations, before the foreign national starts work.

Nor shall the police issue a confirmation when an application for a residence permit is submitted by nationals of other states when there is reason to believe that a residence permit can be refused when considerations relating to control of export or other measures that prevent transfer of knowledge and technology so warrant, cf. Section 6-35 of the Immigration Regulations.

3.3 Misuse of the scheme

Sanctions against an employer who misuses the early employment scheme are regulated in Section 6-34 of the Immigration Regulations, cf. Section 27a of the Immigration Act. In accordance with this provision, an employer can be excluded from the scheme for a period of up to one year. The length of the exclusion will be based on how serious the misuse is deemed to be.

It is deemed to be misuse if an employer who is not covered by the early employment scheme allows the foreign national to start work before a permit has been granted. It is also considered misuse if an employer has provided incorrect information and has on this basis been granted the right to allow the foreign national to start work before the permit has been granted.

The UDI decides whether an employer is to be excluded from the early employment scheme.

Otherwise, the penalty provision set out in Section 108 of the Immigration Act may be applicable.

4. The scheme for seamen and employees of international companies

There is a special scheme for seamen, cf. Section 6-6 of the Immigration Regulations, and employees of international companies who apply for a permit as a trainee, cf. Section 6-21 of the Immigration Regulations, or as a seconded employee, cf. Section 6-13 of the Immigration Regulations, that entails a right to start work before the application has been processed.

4.1 Definitions

Seamen
Residence permits are required for seamen on board foreign-registered ships that engage in regular or significant activities between Norwegian ports, cf. Section 6-6 of the Immigration Regulations. By seaman is meant a person whose work is on board a ship and not only while the ship is docked, and who is included in the crew list. For more information about seamen covered by Section 6-6 of the Immigration Regulations, see UDI 2010-179.

Principal
In this context, principal means the Norwegian part of an international company that the employee (applicant) is employed in. It is a precondition that the principal has its place of business in Norway, is registered in the Central Coordinating Register for Legal Entities and is actually engaged in running a business in Norway, cf. UDI 2010-048 (only available in Norwegian).

International company
By an international company is meant a company that manufactures goods or provides services in at least two countries.

Trainee
A trainee is a person who is under 30 years old and has not completed education from college or university, but who is now conducting such education, cf. Immigration Regulations Section 6-21 first paragraph. It is a requirement that the stay builds on and is relevant to this education.

Seconded employee
In this context, a seconded employee, cf. Section 6-13 of the Immigration Regulations, is deemed to be a person employed in the foreign part of an international company who is to provide services of a limited duration for the Norwegian part of the company. It is a requirement that he or she is a qualified skilled worker. It is not a requirement that seconded employees have a completed three-year university or university education. For more information about seconded employees, see UDI's website (external link).

For clarification of the terms ‘confirmation’ and ‘complete application’, see section 3.1 above.

4.2 Procedure

The scheme described here can both be used when the employee applies for a residence permit him or herself and when the employer or principal does so on behalf of the employee.

4.2.1 The employer or principal submits an application for a permit on behalf of the employee (applicant)

An international company can act as an employer or principal. As employer, it can submit an application for a permit as a trainee on behalf of the employee, cf. Section 6-21 of the Immigration Regulations. As principal, the international company can submit an application for a permit as a seconded employee on behalf of the applicant, cf. Section 6-13 of the Immigration Regulations. In any case, a written authorisation must be presented, cf. Section 10-4 second paragraph of the Immigration Regulations. The same applies to seamen, cf. Section 6-6 of the Immigration Regulations, when the master of the ship or another representative of the shipping company submits an application, cf. Section 10-3 second paragraph of the Immigration Regulations.

The employer or principal must submit a complete application and at the same time request confirmation that the employee can start work before a residence permit has been granted. When the police have checked that a complete application has been submitted, they can issue a confirmation to the employer or principal stating that the trainee, seconded employee or seaman has a right to start work before the application has been processed, cf. Section 10-4 second paragraph of the Immigration Regulations. The confirmation is registered as an administrative decision in DUF, cf. Section 10-4 seventh paragraph of the Immigration Regulations. If there is doubt as to whether the conditions are met, the police shall not issue a confirmation. Nor shall a confirmation be issued when the foreign national can be rejected, cf. Section 17 of the Immigration Act or when he or she can be expelled, cf. Section 66 of the Immigration Act. For further limitations, see section 4.2.3 below. The case is forwarded to the UDI to be processed.

After receiving a confirmation, it is the employer or principal’s responsibility to inform the foreign national of his or her right to enter Norway and, if necessary, to contact the foreign service mission to be issued an entry visa.

Entry visa
If an entry visa is required, the employee must contact the foreign service mission in his or her country of origin or the country of residence. It is specified in this context that only Norwegian foreign service missions are entitled to issue this type of entry visa. If the applicant is living in a country in which Norway is represented in immigration cases by another country, he or she must therefore contact the nearest Norwegian foreign service mission. The visa is granted pursuant to Section 3-13 second paragraph of the Immigration Regulations and issued on the basis of the police registering a confirmation in DUF. The confirmation from the police must be presented at the foreign service mission, cf. Section 10-4 sixth paragraph of the Immigration Regulations. Before issuing an entry visa, the foreign service mission must check that circumstances do not exist that constitute grounds for refusing the employee entry into or residence in Norway pursuant to other provisions of the Act, cf. Section 59 of the Immigration Act. If such circumstances exist, an entry visa shall not be issued.

If the employee, after starting work, returns to his or her country of origin or original country of residence, and wishes to return to Norway before the application for a permit has been decided, a new entry visa must be issued in accordance with the aforementioned procedures. If the residence permit application has already been granted, an entry visa is issued pursuant to Section 3-13 first paragraph of the Immigration Regulations.

4.2.2 The employee submits the application him or herself

A first-time residence permit shall be granted prior to entry into Norway, cf. Section 56 first paragraph of the Immigration Act. However, it follows from Section 10-1 first paragraph letter (a) of the Immigration Regulations that this requirement does not apply to foreign nationals who are qualified skilled workers, cf. Section 6-1 first paragraph of the Immigration Regulations. Since it is a requirement that the seconded employee is a qualified skilled worker, cf. Section 6-13 second paragraph of the Immigration Regulations, they may also submit an application for a permit from Norway. Seconded employees and trainees employed by an international company, cf. Section 1-3 letter (c) of the Immigration Regulations can also submit an application from Norway, cf. Section 10-1 first paragraph letter (d) of the Immigration Regulations. Similarly, seamen on board foreign-registered ships who apply for a permit pursuant to Section 6-6 of the Immigration Regulations can submit an application from Norway, cf. Section 10-1 first paragraph letter (k) of the Immigration Regulations. To be entitled to submit an application from Norway, it is a condition that the applicant has legal residence and that he/she is not staying in the realm in connection with an asylum application or pending departure after receiving a rejection of an asylum application, cf. Section 10-1 third paragraph of the Immigration Regulations. This is further described in the UDI 2013-007 (only available in Norwegian). 

If the foreign national is applying for a permit on new grounds, the conditions set out in Section 61 seventh paragraph of the Immigration Act must be met.

Seconded employees and trainees employed in an international company, and seamen, cf. Section 6-6 of the Immigration Regulations must submit a complete application for a permit, cf. Section 10-4 first paragraph of the Immigration Regulations. This entails that the necessary appendices are attached and that his or her identity is documented by producing a passport or other recognised identity document, cf. Section 10-4 fourth paragraph of the Immigration Regulations. Which appendices are necessary depends on the grounds for the stay and is set out in the UDI’s respective checklists. The foreign national must at the same time request confirmation of the right to start work before the residence permit has been granted.

When the police have checked that a complete application has been submitted, they will issue a confirmation to the applicant giving him or her permission to work for a specific employer or principal until the application has been processed. The application is then forwarded to the UDI to be processed. The confirmation is registered in DUF, cf. Section 10-4 seventh paragraph of the Immigration Regulations. Cases in which a confirmation is not be issued are described in section 4.2.1 above.

4.2.3 Groups not covered by the scheme for seamen and employees of international companies

When a residence permit application is submitted by a national of Iran or North Korea who falls under the scheme for seamen and employees of international companies, the police shall nonetheless not issue a confirmation. The reason for this is that the UDI has a particular need to consider the information available in these cases pursuant to Section 6-35 of the Immigration Regulations, before the employee starts work.

Nor shall the police issue a confirmation when an application for a residence permit is submitted by nationals of other states when there is reason to believe that a residence permit can be refused when considerations relating to control of export or other measures that prevent transfer of knowledge and technology so warrant, cf. Section 6-35 of the Immigration Regulations.

4.3 Misuse of the scheme

If the above-mentioned scheme is misused, the penalty provision set out in Section 108 of the Immigration Act may be applicable.

5. Other provisions

5.1 Residence permit during the processing of an application

If it is likely that the application will be granted, the applicant may, on request, be granted a residence permit that is valid until the decision is available, cf. Section 57 first paragraph of the Immigration Act. In this context, the police are requested to advise the applicant or employer/principal concerning the conditions for and content of this type of permit, seen in relation to the schemes discussed in sections 3 and 4 above.

Those not covered by the early employment scheme, cf. section 3.2.3 above and those not covered by the scheme for seamen and employees of an international company, cf. section 4.2.3 above shall not be granted a residence permit while the case is under consideration. For more information about being issued a residence permit while a case is under consideration, see UDI 2010-147 (only available in Norwegian). 

If the police decide not to issue this type of a residence permit, this decision cannot be appealed. Chapters IV to VI of the Public Administration Act do not apply, cf. Section 57 fourth paragraph of the Immigration Act.