The Legal Procedure for the Employment of Foreign Citizens in Romania

The Legal Procedure for the Employment of Foreign Citizens in Romania

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In the context of the current labor shortage that Romania is facing, caused by the continuous flow of emigration, more and more Romanian employers find as a viable solution the employment of foreign citizens for the current development of their activity. 

According to Article 2 of the Government Emergency Ordinance no. 194/2002 on the foreigners’ regime in Romania (the "GEO 194/2002") the "foreign citizen" is a person who does not have Romanian citizenship, the citizenship of another Member State of the European Union or of the European Economic Area or the citizenship of the Swiss Confederation. 

However, in order to be able to hire a foreign citizen, the employer must prove that he has taken all the necessary steps to fill in, with priority, the vacancy by a Romanian citizen, by a citizen of another Member State of the European Union or of the European Economic Area, by a citizen of the Swiss Confederation or by a foreigner holding the right of long-term residence on the territory of Romania.

In case the Romanian employer wishes to employ foreign citizens, he must follow the procedure provided under the Government Ordinance no. 25/2014 regarding the employment and secondment of foreigners on the Romanian territory and for the modification and completion of some normative acts regarding the regime of foreigners in Romania (the “GO 25/2014”), corroborated with the provisions of GEO 194/2002. 

The first step is to choose the profile of the employee that fits best the employer’s needs and business, so there are the following options, according to Article 2, paragraph (1) of OG 25/2014:

  1. permanent worker - the foreigner employed on the Romanian territory with an individual employment contract for an undetermined or fixed period, concluded with an employer based on the work permit;
  2. trainee worker - the foreigner employed on the Romanian territory based on the work permit, holder of a higher education diploma or following a form of higher education in a third state, who participates on the territory of Romania in an internship program, with a fixed duration, in order to improve the professional training or to obtain a professional qualification, as well as to improve the linguistic and cultural knowledge;
  3. au pair worker - the foreigner temporarily employed by a host family, on the Romanian territory, in order to improve his/her language knowledge and skills in exchange for light housework and childcare activities;
  4. seasonal worker - the foreigner who maintains his/her main residence in a third state, but lives legally and temporarily on the Romanian territory, being employed in Romania with an individual fixed-term employment contract, concluded with an employer based on the work permit, in order to perform an activity that takes place according to the stringing of the seasons;
  5. cross-border worker – the foreigner, citizen of a state that has a common border with Romania and who lives in the border area of ​​that state, employed in a border locality on the Romanian territory with an individual employment contract of undetermined or fixed duration, concluded with an employer based on the work permit;
  6. highly qualified worker - the foreigner employed in Romania on a highly qualified job, with an individual employment contract for an undetermined period or for a fixed period of at least one year, concluded with an employer based on the work permit;
  7. detached worker - the qualified foreigner, temporarily detached from the company established in a third state, where he/she is and remains employed with a valid employment contract, to a beneficiary of the services belonging to that company or to the same group of companies with the company from which the secondment is made or with which the company has concluded a contract that involves the secondment of one its employees on the Romanian territory.

The process of obtaining the work permit. Recent legislative changes

In recent years, there has been a trend of the employment of permanent workers, especially in the logistics or commercial areas of business. Thus, Romanian employers wishing to recruit permanent workers must obtain the work permit from the territorial unit of the General Inspectorate for Immigration in whose area the employer has its headquarters, attesting the right to employ a foreign worker on a certain vacant position.

Considering the provisions of Article 7, paragraph (1) of GO 25/2014, the work permit for permanent workers is issued to the employer in order to employ a foreigner with an individual full-time employment contract for an undetermined or determined period of time. The individual employment contract for a determined period is extended under the conditions provided by the Romanian Labor Code, without obtaining a new work permit, in case the employment conditions for the respective position are maintained. 

In the recent legislative amendments’ context provided by Law 200/2020 for the completion of GEO 194/2002 and GO 25/2014, the citizens of the Republic of Moldova, Ukraine and the Republic of Serbia employed in Romania with a full-time individual employment contract, for a period of maximum 9 months within one calendar year, are exempted from the procedure of obtaining the work permit from the General Inspectorate for Immigration.

Therefore, the citizens of the 3 states mentioned above who plan to work in Romania can do that based on a long-stay visa for employment and a residence permit, without the need to obtain the work permit.

In case the foreign citizens do not fall within the exhaustive enumeration provided by Article 3, paragraph (2) of GO 25/2014 of the cases of exemption from holding the work permit, obtaining this permit is mandatory and it involves the completion of bureaucratic procedures by both the employer and the foreign citizen, in accordance with the legal provisions of GO 25/2014, respectively GEO 194/2002 and with the instructions of the General Inspectorate for Immigration. 

According to Article 2 of GO 25/2014, prior to the submission of the application for the issuance of the work permit by the General Inspectorate for Immigration, the employer must meet the following conditions, cumulatively:

  1. carrying out on the Romanian territory activities compatible with the position for which the foreigner is employed;
  2. payment of obligations to the state budget for the last quarter;
  3. has not been definitively convicted for an infringement provided by the Romanian Labor Code or for an infringement against a person committed with intent, provided by Law no. 286/2009 regarding the Romanian Criminal Code;
  4. has not been previously sanctioned for the following acts provided in Article 36, paragraph (1) of GO 25/2014, respectively: a) allowing a foreigner to work on the Romanian territory without a work or secondment permit, with or without an individual employment contract concluded in written form; b) allowing a foreigner with illegal stay, with or without individual employment contract concluded in written form, to work on the Romanian territory;
  5. has not been previously sanctioned for the following deeds provided in the Romanian Labor Code at Article 260 paragraph (1) letter e) regarding the employment of one or more persons without concluding an individual employment contract or letter e) regarding the employment of one or more persons without transmitting the elements of the individual employment contract in the general register of employees at the latest on the day prior to the beginning of the activity;
  6. has not been previously sanctioned for the deed provided in Article 8 paragraph (1) of the Government Decision no. 905/2017 on the general register of employees, in the last 6 months prior to the settlement of the application. This fact implies the non-transmission of the data provided in the general register of employees no later than the day before beginning the activity by each person who shall be in an employment relationship with the employer based on an individual employment contract;
  7. the annual quota on types of newly admitted workers on the labor market established according to the provisions of Article 29 paragraph (1) of GO 25/2014 has not been finished.

To the extent that these conditions are met, the employer must submit a grounded request for the work permit stating the reasons for the necessity to hire the foreign citizen and his professional experience, supported by the following documents required by the General Inspectorate for Immigration:

  1. proof of the employer's legal empowerment;
  2. the certificate of registration with the trade registry office, in copy and in original;
  3. the ascertaining certificate issued by the trade registry office, showing that no applications have been registered regarding the opening of the bankruptcy procedure;
  4. the fiscal certificate issued by the public finance administration in whose territorial area the employer has its registered office, regarding the payment of the obligations to the state budget for the last quarter;
  5. a certificate issued by the employment agency in whose territorial area the employer has its registered office, regarding the available workforce for the vacancy communicated by the employer in accordance with the legal provisions, no later than 60 days before the application is submitted;
  6. job description, organizational chart of the employer with the filled and vacant positions;
  7. proof of publication in the Romanian mass media of a vacancy notice;
  8. firm employment offer;
  9. a copy of the minutes issued following the selection made to fill in the vacancies and providing that the foreigner whom the employer intends to employ meets the conditions of professional training and work experience provided for by the legislation in force for that job;
  10. the declaration of the foreigner that he is medically fit to be employed and that he has a minimum knowledge of the Romanian language or knows a language of international circulation;
  11. curriculum vitae and two photographs type 3/4 of the foreigner, which may also contain the declaration of the foreigner that he is medically fit to be employed and that he has a minimum knowledge of the Romanian language or knows an international language;
  12. the authorization document provided by law (where applicable);
  13. the foreigner’s criminal record or other document of the same legal value issued by the authorities of the country of origin or residence, translated in Romanian and notarized;
  14. the employer's criminal record;
  15. copy of the valid border crossing document of the foreigner (e.g., passport).

The request shall be solved within 30 days from the date of its registration, according to Article 28, paragraph (2) of GO 25/2014. In cases where, in order to ascertain the fulfillment of the conditions for obtaining the work permit, additional verifications are necessary, the term for solving the application may be extended by maximum 15 days.

The settlement of the applications for the issuance of the work permit is made taking into account the specific circumstances of each case, respecting the principle of proportionality.

According to the legal provisions established by GO 25/2014, there are two categories of cases that may generate the refusal to issue the work permit by the General Inspectorate for Immigration. On the one hand, in the event of non-compliance with the provisions of GO 25/2014 and, on the other hand, in consideration of finishing the annual quota for types of newly admitted workers on the labor market. 

In both cases, the refusal to issue the work permit is communicated in writing to the employer together with the reasons of such decision by the General Inspectorate for Immigration, through its territorial units.

The refusal to issue the work permit can be challenged at the Court of Appeal in whose area of competence is the territorial unit that ordered this measure, under the conditions of Law no. 554/2004 of the administrative contentious.

If the issuance of the work permit is approved, the employer pays a fee in Lei, representing the equivalent to Euro 100 compared to the official exchange rate of the National Bank of Romania on the date of payment. The work permit shall be kept by the employer for the entire period of employment.

An increased attention must be paid to the causes that may lead to the cancellation of the work permit. These causes are revealed in Article 31 of GO 25/2014: (i) it is subsequently found out that at the date of issuing the work permit, the conditions provided by GO 25/2014 were not met; (ii) it is subsequently found that the work permit was obtained on the basis of false or falsified documents; (iii) the employer does not show up at the General Inspectorate for Immigration in order to pick up the work permit, within 30 days from the scheduled date for solving the application, or expressly requests the cancellation of the work permit before obtaining the long-stay visa for employment; (iv) it is found out that until the obtaining of the long-stay visa for employment, the conditions for issuing the work permit are no longer met. 

The process of obtaining a long-stay visa for employment

After obtaining the work permit, the employer must send it to the future employee, foreign citizen, and the latter must obtain a long-stay visa for employment from the diplomatic missions or consular offices of Romania.

The foreign citizen can apply for a long-stay visa for employment within 60 days from the date of obtaining the work permit by the employer, based on the following documents:

  • Copy of the work permit issued by the General Inspectorate for Immigration;
  • Proof of means of subsistence at the level of the guaranteed minimum gross salary for the entire period indicated by visa;
  • Criminal record certificate or other document of the same legal value, issued by the authorities of the state of domicile or residence; and
  • Medical insurance during the period of validity of the visa.

The long-stay visa is granted for a period of 90 days, with one or more trips. The fee for visa is of Euro 120 and shall be paid in the state where the application is submitted.

The process of obtaining a residence permit for work purposes (single permit)

The single permit certifies the right of residence in Romania and grants the right to work to people who meet the legal conditions for working. 

In order to obtain it, the following documents must be submitted to the competent General Inspectorate for Immigration, at least 30 days before the expiry of the right of residence granted by the visa:

  1. Standard application, in original;
  2. Border crossing document (passport, travel document, etc.), in original and in copy;
  3. Proof of legal ownership of the living space, in original and in copy;
  4. The individual employment contract with the Romanian employer, in original;
  5. Print screen from REVISAL, in original;
  6. Medical certificate, in original; and
  7. Proof of payment of related fees, in original (e., Lei 259 and the equivalent in Lei of Euro 120, at the exchange rate of the National Bank of Romania on the day of payment - these must be paid at any CEC Bank branch).

The application for a residence permit will be resolved within 30 days from the date of its submission. In cases where additional verifications are required, the time limit for settling the application may be extended by maximum 15 days. The single permit is renewed annually, at least 30 days before its expiration date.

In conclusion, given the socio-economic context and the need for labor currently existing in Romania, there is an upward trend of employers to use human resources outside the European Union, the European Economic Area and the Swiss Confederation, observing the procedural steps provided by the applicable legislation.

By Loredana Popescu, Partner, and Iulia Barbu, Attorney at Law,  Popescu & Asociatii