FRANCE: Immigration Policy for Professionals Outside of EU Holds More Scrutiny

__from ABIL Global Immigration Update

Immigration policy for professionals has taken a new course with the inter-ministerial circular published on May 31, 2011. As a result, Préfectures must examine work permit applications for non-European foreigners with greater scrutiny. Also, the list of jobs for which workers are in shortage has been halved. Six months later, it is clear that the new direction of the immigration policy for professionals, put into practice, has led to an increase in the number of refusals of work permits and changes of status.

I. A Balanced and Selective Professional Migration

Confronted by multiple economical challenges, especially a high unemployment rate, an increase in the number of working people, and a great influx of immigrants, the new course taken by French migration policy aims to implement a balanced and selective immigration of professionals. Toward this goal, work permit and change of status applications are being processed with more scrutiny (per the inter-ministerial circular published on May 31, 2011) and the list of jobs for which workers are in shortage has been halved (per the inter-ministerial decree signed on August 11, 2011).

Greater scrutiny of work permit applications. As well as reasserting the elements established by article R.5221-20 of the French Labor Code (including labor market testing) to be taken into account when examining a work permit application, the inter-ministerial circular urges the Préfectures to apply these elements very strictly. The inter-ministerial circular also clarifies the fact that this reinforced control does not apply to temporary workers, seasonal workers, employees on assignment, or high qualified workers.

The list of jobs for which there is a shortage of workers is reduced by half. The inter-ministerial decree signed on August 11, 2011, has reduced by half the list of jobs in certain fields where employers encounter difficulties in recruiting workers. The list now contains only 14 jobs as opposed to 30 previously. Foreign workers may fill these jobs without having to go through a labor market test. The reduced list is unique and applies throughout the French territory, unlike the previous regional lists that allowed local needs to be taken into account. This list will be revised on August 1, 2013, at the latest.

Bilateral agreements regarding the control of migration flows have been signed by France and other countries (Brazil, Burkina Faso, Cameroon, Cape Verde, Gabon, Mauritius, Benin, Congo, Senegal, and Tunisia). These agreements allow nationals to obtain work permits under conditions negotiated country by country.

II. Implementation Carried Out by Préfectures

To grant or refuse work permits, the Préfectures  takes into consideration all the elements in article R.5221-20 of the French Labor Code (including labor market testing). In practical terms, the territorial units of the French Labor Office (DIRECCTE) essentially apply strict labor market tests, except when these do not legally apply (intercompany transfers, highly qualified workers, executives, young professionals, holders of the skills and talents card), as well as all the other elements of these criteria.

Prior and effective research on the labor market. An employer who wishes to hire a foreign worker must first of all carry out effective research on the regional and professional labor market to prove that it could not have hired a worker already on the job market. In practical terms, the Préfectures seem to require a two-month job advertisement through the Employment Pole (Pôle Emploi) or a two- to three-month advertisement when it is through other organizations.

Estimation of the needs of the working force. In practical terms, the administration refers to statistics published by Pôle Emploi in the "Needs of the workforce" inquiry (Besoins en Main d’Oeuvre, BMO). The evaluation of the job advertisement and the estimation of the needs of working force carried out by the Labor Office (DIRECCTE) are mainly based on data provided by Pôle Emploi. Therefore it is wise to advertise the job offer with Pôle Emploi and to check the needs of the workforce for the job beforehand according to Pôle Emploi’s statistics.

Thorough scrutiny of change of status applications. The thorough examination of change of status applications mainly concerns foreign students. Only foreign students having obtained a temporary residence permit (autorisation provisoire de séjour, APS) will be spared the labor market test. By four months at the latest before their current residence permit expires, students following a five-year degree course leading to a Master II degree may apply for a temporary residence permit. In practice, the labor market test does not apply under the following circumstances:

• Temporary residence permit application filed four months before the expiration of the current residence permit;
• Validation of the Master II degree;
• Work contract with a salary equivalent to at least one and a half times the minimum legal wage (SMIC);
• Job description in accordance with the course the student followed;
• Job offer as a first professional experience with the goal of return to the home country.

Reinforced control in the framework of "employee" residence permit renewals. The inter-ministerial circular published May 31, 2011, notes that the initial working conditions and salary must at least be maintained when the "employee" work permit renewal application is filed. The circular also notes that students who have obtained an "employee" residence permit after having been granted a temporary residence permit (APS) may fill a new job at the end of their first professional experience, but in this case the examination of their new work permit application will be based on all the elements listed in article R.5221-20 of the French Labor Code (including labor market testing). A change of employer application, a renewal of a fixed term contract, or the transition to a permanent contract will also be examined in light of article R.5221-20.

In conclusion, the increase in refusals of work permits and changes of status reflects the new migration control policy for professionals. Labor market tests apply and the results are unfavorable to workers already present on the job.