After workers from China started working hard (and perhaps dearly) for a long time, on Romanian construction sites, lately we have seen, more and more often, employees from Nepal, the new fashion of exotic workers, which came to replace the old-time myth of industrious and relentless Filipin nannies.
According to official data provided by the Labor Inspection, in 2019, about 40,000 foreign citizens were working in Romania, the largest being Turkish citizens, followed by those from Vietnam, Italy, Moldova, China and Myanmar.
In this context, more and more businesspeople, from the most diverse fields, whether we are talking about road or residential constructions, whether we are talking about services, have started to be interested in the conditions under which foreigners can be employed in Romania.
Also, a similar interest is shown by the foreign companies that want to enter the Romanian market but also to bring their employees, whom they will detach here for a period of time, to ensure that the business is implemented and operates according to their own requirements.
For these reasons, we set out to present, as succinctly, the main legal provisions governing the procedure for the employment and secondment of foreigners on the territory of Romania.
Thus, depending on their work, foreigners may work in Romania as permanent workers, trainees, au pairs (temporarily employed by a host family), seasonal, cross-border, highly skilled, seconded or ICT (“Intra Company Transfer” – transferred within the same company).
The employment of foreigners in Romania is done on the basis of an employment approval, which is obtained by the Romanian employer from the General Inspectorate for Immigration, by submitting an application accompanied by certain documents.
The law provides for a series of general conditions to be met for the issue of the employment approval, such as, for example, for the employer to carry out in Romania activities compatible with the function for which they apply for the employment of the foreigner and to have paid all obligations to the State budget for the last quarter prior to the submission of the application.
Also, a series of specific conditions must be met for each category of worker. For example, in the case of permanent and trainee workers, the employer must prove that vacancies cannot be filled by Romanian citizens, EU/EEA Member States, or by permanent residents in Romania, and in the case of au pairs, the foreigner must be between the ages of 18 and 30 and have completed some form of lower secondary education, these being just some of the specific conditions laid down by law for each mentioned category.
There are also exceptions to the need to obtain an employment approval, such as, inter alia, for foreigners who are appointed as head of a subsidiary, representations or branches in Romania of a company based abroad, for foreigners holding a right of long-term residence in Romania or a right of temporary residence for studies, or for foreigners who hold the right of temporary residence for family reunification as family members of a Romanian citizen.
Seconded workers and ICT workers can work on the territory of Romania based on a secondment approval obtained from the General Inspectorate for Immigration by submitting an application to that effect by the secondment entity. One of the exceptions to the need to obtain this type of approval is the situation of foreigners seconded to Romania, employees of legal entities established in one of the EU or EEA Member States, or in the Swiss Confederation, who provide the residence permit in that State.
Certain conditions must also be met in the case of the secondment approval, such as: the company from which the secondment is made is established in a third country; the secondment entity carries out in Romania activities compatible with the work for which they request the secondment of the foreigner and they paid the obligations to the state budget for the last quarter, prior to the submission of the application.
The applications for the issue of approvals shall be dealt with by the General Inspectorate for Immigration within 30 days of registration (15 days in the case of applications for EU Blue Card holders obtained in another Member State), and if the case of necessary supplementary checks, the period shall be extended by 15 days.
The General Inspectorate for Immigration may request additional information/documents from petitioners if those initially provided are inadequate, granting a maximum period of 30 days to that effect. If petitioners do not provide additional information or documents by the prescribed deadline, the application may be rejected.
The refusal to issue the approval of employment/secondment may be challenged under the terms of Administrative Litigation Act No. 554/2004 in front of the court of appeal which has territorial jurisdiction over the General Inspectorate for Immigration which ordered the measure.
The tariff to be paid on the issue of employment/secondment approvals is the equivalent in RON of EUR 100 for permanent worker, seconded, cross-border, trainee, highly qualified and au pairs and the equivalent in RON of EUR 25 for seasonal worker, for the foreigner holder of the right of temporary residence for studies after completing his studies, for the holder of the right of temporary residence for family reunification, and in the event of a change of employer or function at the same employer.
Long-stay visa for employment/secondment
Within 60 days of obtaining the approval of employment/secondment, the foreigner must apply for a long-stay visa for the purpose of employment/secondment, from the diplomatic missions or consular offices of Romania in the State in which he is domiciled or resident. The fee for this visa is EUR 120 and is payable in the state where the application is made. As an exception, there is no obligation to obtain a long-stay visa for employment, for foreigners enjoying a right of residence in Romania and for foreigners holding a valid ICT permit issued by another EU Member State, the latter being able to enter Romania as of the date of submission of the application for a secondment approval.
The long-stay visa shall be granted for a period of 90 days, with one or more trips, and in case of seasonal workers shall be granted for a period equal to the expected duration of the contract plus 5 days, without exceeding 90 days.
Single Permit/EU Blue Card
After entering Romania and at least 30 days before the expiry of the right of residence granted by the visa, the foreigner must apply at the General Inspectorate for Immigration for a single permit, or for the EU Blue Card, certifying his right of residence in Romania.
The period for which the right of residence is granted/extended, as well as the possibility of subsequent extension, may vary depending on the type of worker and the duration of employment/secondment.
Even if, at first glance, the procedure for obtaining approvals may seem difficult, in reality things are not so complicated and, in any event, if they were complicated, it is preferable to follow the procedure precisely and obtain approvals, since their absence may attract fines of up to RON 20,000 and the application of complementary civil sanctions.
Silvia Alexandroiu, Associate of Stratula & Asociatii.
Article published in Business24, on January 28, 2020.