Employment of a third-country national

The classification of an employee into a degree of labor difficulty is within the competence of the employer, considering the specific job description. There is no universal definition according to which a specific job position could be automatically classified into a specific degree.

The process of employing foreigners is a complex process. Here, it is also necessary to point out that the job position of a sports coach falls under regulated professions. The database of regulated professions is accessible here. Along with the application for the renewal of residence, it will be necessary in such a case to provide a decision from the Ministry of Education, Science, Research, and Sport regarding the recognition of the educational document. According to the database of regulated professions, the professions of coach are distinguished from the 1st to the 5th qualification degree. It is necessary that the data stated in the notice of a vacant job position correspond with the coach’s qualification degree according to the decision on the recognition of the document.

At the same time, we point out that the employer must be registered in the Register of Legal Entities in Sport. In the event of the commencement of an employment relationship with a sports professional, the registration of the data of such an employee will be required within 10 days from the entry into the source records of the sports organization.

The employer incurs the following obligations:

• To keep a copy of the residence document or other residence authorization during the period of employment of the third-country national.

• To inform the Office of Labor, Social Affairs, and Family in writing about the commencement of employment and the termination of employment of the third-country national within seven working days from the day of commencement of employment and within seven working days from the day of termination of employment. If it concerns the employment of a third-country national, the employer is obliged to attach a copy of the employment contract to the information.

• The employer is obliged to inform the Office of Labor, Social Affairs, and Family in writing if a third-country national, who was granted a work permit or who has been granted temporary residence for the purpose of employment based on a confirmation of the possibility to fill a vacant job position, did not start the employment, within seven working days from the day agreed upon as the day of commencement of work.

• To register the employee with a health insurance company. (First, it is necessary for the foreigner to submit an application to the health insurance company along with the employment contract stating the amount of the wage, or the employment contract and a wage sheet from which the amount of the wage is evident; subsequently, after the foreigner is registered, their enrollment by the employer is possible).

• To register the employee with the Social Insurance Agency. (Procedure as with Slovak employees).

• The employer is obliged to notify the foreign police department in writing within three working days of the failure of a third-country national to start employment if they issued a written promise of employment.

• The employer is obliged to notify the foreign police department of the termination of the employment relationship of a third-country national within a period of three working days.

• In the event of an inspection, it is also necessary for the employer to present the document “Additional Data on Employment” issued by the Foreign Police Department after granting residence to the third-country national.

• All obligations are also stated in the instructions that the foreigner received at the foreign police department. Included in the instructions is also the obligation to provide a medical opinion confirming that the foreigner does not suffer from a disease threatening public health within 30 days from the day of collecting the foreigner’s residence permit.

The types of visas to the territory of the Slovak Republic and the procedure for obtaining them are regulated by Act No. 404/2011 on the Residence of Foreigners and on amendments and supplements to certain acts and the Schengen Code, which, however, do not establish “work visas” as a type of visa.

In the event that a third-country national is interested in employment in Slovakia, it is necessary for them to apply for the granting of a temporary residence for the purpose of employment.

The application for the granting of temporary residence must be submitted in person at a diplomatic mission of the SR in the country where the foreigner has their residence or, in some cases, directly on the territory of the SR at a foreign police department. Submitting an application for the granting of temporary residence on the territory of the SR is possible in the following cases:

• the foreigner is staying on the territory of the Slovak Republic on the basis of a valid residence permit

• the foreigner is staying on the territory of the Slovak Republic on the basis of a granted tolerated stay

• the foreigner is staying on the territory of the Slovak Republic on the basis of a granted national visa

• it concerns a third-country national for whom a visa is not required

• it concerns a holder of a certificate of a Slovak Living Abroad

We point out that in the case of an application for the granting of temporary residence for the purpose of employment, it is necessary for the applicant to already possess an employment contract or a written promise from the employer to hire them for employment. You can read more detailed information about this type of temporary residence in our article on the employment of foreigners in Slovakia.

Temporary residence in the territory of the Slovak Republic is always tied to a specific purpose. In your case, likely for the purpose of employment. If the employment relationship that was the basis for granting the temporary residence for the purpose of employment is terminated, the purpose for which the temporary residence was granted ceases to exist.

According to Section 36, Paragraph 1, Letter a) of Act No. 404/2011 Coll. on the Residence of Foreigners (hereinafter “Act on the Residence of Foreigners”): “The police department shall cancel the temporary residence if the purpose for which the third-country national was granted temporary residence has ceased.”

However, the aforementioned provision does not apply for 60 days from the termination of employment in the case of temporary residence for the purpose of employment. In the event of the termination of an employment relationship, an employee with temporary residence for the purpose of employment thus has 60 days after the termination of the employment relationship during which the temporary residence will not be cancelled, and during this time, the foreigner can find a new job (naturally, based on fulfilling the conditions for the employment of foreigners such as reporting a vacant job position, etc.) or apply for a change in the purpose of the temporary residence from the purpose of employment to another purpose. The termination of the employment relationship must be reported to the foreign police.

As of April 9, 2020, however, an amendment to the Act on the Residence of Foreigners is effective, according to which the aforementioned 60-day period is extended by the duration of the crisis situation, i.e., during an extraordinary situation, a state of emergency, or a state of exception declared in connection with the COVID-19 disease.

For the reasons stated above, we recommend finding a new job or changing the purpose of residence so that the application to the foreign police can be submitted as soon as possible. In the event of a change of employment, you will need a promise of employment from a new employer or an employment contract.

If you have granted a power of attorney to your former employer (the agency) to represent you in the proceedings for granting temporary residence, we recommend that you revoke this power of attorney as soon as possible. You can revoke the power of attorney in the form of a letter to the relevant foreign police department. If you do not revoke the power of attorney, you expose yourself to the risk that the former employer will send a notice of the termination of residence to the foreign police on your behalf, which will lead to the expiration of the temporary residence, or that the foreign police will send submissions to the address of the former employer about which you will not learn.

“Within the framework of submitting the application, it is sufficient to print out the criminal record extract and the apostille. The administrative body, as part of the assessment of the application, evaluates whether it is possible to accept the submitted documents. We register a diplomatic note from the Embassy of Colombia in Vienna, by which they informed us of the fact that they issue an electronic apostille as well as the method by which its validity can be verified. If the submitted extract meets the prescribed parameters, there will be no reason for the suspension of the proceedings. If doubts were to arise regarding the submitted document, your client will be requested to supplement the documentation.” source: RHCP BA

Hello,

we have confirmed from the Bureau of Border and Foreign Police Bratislava that a criminal record extract from Colombia, which contains an electronic apostille, can be submitted in printed form. In practice, this means that it is sufficient to print the document with the electronic apostille and attach it to the application for the granting of temporary residence. A document submitted in this manner is considered acceptable and meets the requirements for the completeness of the application. Source: ÚHCP P PZ BA

According to the statement of the Central Office of Labor, Social Affairs, and Family Bratislava: “In accordance with Section 3, Paragraph 1 of Act No. 5/2004 Coll. on Employment Services and on amendments and supplements to certain acts (hereinafter only ‘the Act on Employment Services’), an employer for the purposes of this Act is a legal entity that has the seat of its organizational unit on the territory of the Slovak Republic, or a natural person who has permanent residence on the territory of the Slovak Republic and who employs a natural person in an employment relationship or in a similar labor relationship. According to the Labor Code, the employer has an obligation to preferentially employ citizens with permanent residence in Slovakia.

However, if it is not possible to find a suitable candidate with permanent residence in Slovakia, the employer may also employ a foreigner, if this person has been granted a temporary residence for the purpose of employment and a work permit, or another relevant document. In cases where a labor market survey is conducted for a reported vacant job position for which the employer plans to hire a foreigner, the office of labor, social affairs, and family takes into account the current situation and the development of the labor market, the number of suitable job seekers in the records, and the possibilities of applying active labor market policy tools in the employment of a job seeker, [and] the inflow of job seekers into the records.” If you are interested in help with the employment of a third-country national, do not hesitate to contact us.

According to the statement of the Central Office of Labor, Social Affairs, and Family Bratislava: “In accordance with Section 62, Paragraph 6 of the Act on Employment Services, the employer has the obligation to notify a vacant job position and its characteristics to the office of labor, social affairs, and family (hereinafter ‘the office’) in the territorial district where the job position is located. According to Section 13, Letter t) of the Act on Employment Services, the competence of the office includes, among other things, monitoring compliance with this Act and generally binding legal regulations issued on its basis. In the event of a discovered violation of the law, the office proceeds in accordance with Section 68a) of the Act on Employment Services; however, for a violation of Section 62, Paragraph 6, neither the office of labor, social affairs, and family nor the central office of labor, social affairs, and family shall impose a fine.”

According to the statement of the Central Office of Labor, Social Affairs, and Family Bratislava: “In the case of a change of data on an already issued confirmation of the possibility to fill a vacant position which impacts the fulfillment of conditions for issuing the confirmation (e.g., change of employer, change of the type of work performed, reduction in the amount of wage), it is necessary for the employer to request the office of labor, social affairs, and family to issue a new confirmation, within the framework of which the fulfillment of conditions for issuing a favorable confirmation will be examined. The office may issue the new confirmation for the remaining period.

If a foreigner with an approved temporary residence for the purpose of employment changes employer, they are obliged to report this to the UHCP P PZ.” According to the OCP PZ Košice: “In the event that a third-country national has a permitted temporary residence for the purpose of employment which remains valid and they change employer, it is not necessary to apply for a renewal of residence. In this case, the ÚPSVaR will report to the foreign police that the national has changed employer, which the foreign police will record.” For more information, do not hesitate to contact us.

According to the statement of the Central Office of Labor, Social Affairs, and Family Bratislava: “It is not possible to report a vacant job position retroactively. This state of affairs cannot be rectified, only a new process of reporting a VPM [vacant job position] can be started and a new application sent by the employer. In such a case, it constitutes illegal work, which the office (if it learns of it) is obliged to report to the National Labor Inspectorate, which is subsequently authorized to act in the given matter.” Are you unfamiliar with the obligations toward the labor office or the foreign police? We would be happy to help you with that – get in touch with us.

According to the statement of the OCP PZ [Foreign Police Department] Košice: “In the case of employing students who have completed their studies and their employment on a TPP [permanent employment relationship], it is the obligation of the foreigner to come and apply for a change of the purpose of residence to temporary residence for the purpose of employment.” According to the statement of the Central Office of Labor, Social Affairs, and Family Bratislava: “In the case of students, it is important whether they completed the studies successfully or unsuccessfully. If they completed the studies successfully, then you proceed in accordance with Section 23a) letter t) of the Act on Employment Services. If the studies were not successful, you proceed according to Section 21b) of the Act on Employment Services.” Every case is individual – if you are not sure about the next steps, contact us and we will find the best solution for you.

According to the statement of the central office of labor, social affairs, and family Bratislava: “The employment of citizens of Ukraine who do not have temporary refuge in Slovakia is governed by the standard rules for the employment of foreigners. This means that the employer must usually apply for a confirmation of the possibility to fill a vacant job position or a work permit. However, there are also exceptions, for example, for the employment of highly qualified experts according to Section 21a of the Act on Employment Services.” If you find yourself in a similar situation and do not know how to proceed further, get in touch with us. Our legal counseling is at your disposal.