DLP Insights

Entry into Italy of highly qualified personnel: changes and simplified procedure for companies and workers (Norme e Tributi Plus Diritto – Il Sole 24 Ore, 14 May 2024 – Valentino Biasi, Andrea Di Nino, Giorgia Tosoni)

Categories: DLP Insights, Publications, News, Publications | Tag: Digital nomads, Immigration law

13 May 2024

Workers who are citizens of countries outside the European Union and who come to Italy to work are regulated by specific provisions, under which the Ministry of the Interior sets and limits the annual entry quotas. The provisions also ensure that highly qualified personnel can benefit from ad hoc exemptions from these quotas, allowing them to work in Italy regardless of the annual limits.

For highly qualified “non-EU” personnel, the procedures for the entry into Italy require the Italian employer and the worker to complete a set of procedural requirements certifying that the worker is highly qualified and specialised. In most cases, this will involve several relevant authorities and processing times of months.

In light of the growing international mobility of workers over recent years – also as a result of the spread of remote working that occurred during the Covid-19 pandemic – the above-mentioned entry requirements have proved to be particularly cumbersome with respect to the specific needs of employers, given the increasing number of highly specialised workers – whether employees or self-employed – who decide to work abroad and remotely for a certain period of time,with respect to their country of origin or employment.

In this regard, there have been some recent changes, deriving, first of all, from the transposition in Italy of Directive (EU) 2021/1883 and the subsequent measures introduced by the ministries concerned, which have addressed the specific features of the new procedures with a circular and a Ministerial Decree.

Looking at the recent changes, it should be remembered that in the Italian legal system, Italian Legislative Decree no. 286/1998 (“Consolidated Immigration Act”) regulates the entry into Italy of foreign persons, including with reference to employment relationships. As mentioned above, and with particular relevance to the latter, it is generally provided that, with respect to the so-called “annual quotas” of entry from time to time established by the Ministry of the Interior, it is possible to guarantee the entry of so-called “extra-quota” workers, i.e. in derogation of the ministerial limits established annually, for foreigners who meet certain specialisation requirements. These exceptions are regulated by Article 27 of the Consolidated Immigration Act.

Following the entry into force of Italian Legislative Decree no. 152/2023, which incorporated into Italian law the aforementioned Directive (EU) 2021/1883 aimed at expanding and simplifying the entry and stay of highly qualified citizens from countries outside the European Union and the Schengen area, the Ministry of Labour and Social Policies, together with the Ministry of the Interior, issued circular no. 2829 of 28 March 2024, containing some clarification on the new Consolidated Immigration Act.

Among the various changes, the introduction of additional subjective requirements aimed at identifying the “highly qualified” foreign workers, specifically referred to in the circular is of considerable importance. Currently, this definition includes not only the holders of a university degree, but also the holders of the professional qualifications provided for in the new Article 27-quater of the Consolidated Immigration Act, such as: (i) persons who have held a post-secondary level professional qualification for at least three years, (ii) persons who meet the requirements for the exercise of regulated professions, (iii) holders of higher professional qualifications attested by at least five years’ experience at a level comparable to tertiary level higher education qualifications, and (iv) managers and specialists in the field of information and communication technologies with higher professional qualifications attested by at least three years’ professional experience.

The Ministerial circular clarifies that satisfaction of the above requirements must be demonstrated at the time of submission of the application for authorisation for the EU Blue Card, by forwarding the diploma certificates issued by universities or non-university institutes at the end of the training course. In the case of professional qualifications, satisfaction of the requirements must be met through the presentation of contracts and/or payslips and the optional addition of a letter of experience drawn up by the previous employer, certifying that the worker has been employed for the time period provided for by the legislation, in the specific sector in which the worker will be employed in Italy.

In order to obtain the EU Blue Card, and in addition to the documentation referred to above, it will be necessary to submit a draft employment contract or binding offer for the highly qualified work activity for a period of at least six months and with an annual salary, shown in the draft or offer, that is not less than the remuneration provided for by thenational collective bargaining agreement (contratto collettivo nazionale di lavoro, CCNL’).

In addition, in point 4, the circular reiterates the worker’s rights and limitations on him/her, after he/she has obtained the EU Blue Card, namely:

  • for the first 12 months of residence, he/she must carry out the highly qualified activity for which he/she has obtained the authorisation exclusively for the employer who made the request. It is possible to change employer within the 12 months’ period subject to authorisation from the Territorial Labour Inspectorate;
  • during a period of unemployment, the worker has the right to seek and take up employment in accordance with Article 27-quater;
  • he/she may, in parallel with the highly qualified activity for which he/she is employed, engage in self-employment, in accordance with the provisions of Article 27-quater, paragraph 13-ter.

When the highly qualified worker has obtained the authorisation and the entry visa from the Italian diplomatic corps in the country of origin, he/she has the right to work immediately upon arrival in Italy, even before being summoned to the Immigration Desk to sign the work permit employment contract (contratto di soggiorno). The employer must still send the mandatory prior notice of the establishment of the employment relationship (so-called “Unilav”).

In relation to the simplified procedure, the circular refers to the provisions of Article 27-quater, paragraph 8 of the Consolidated Immigration Act and provides that if the employer has signed with the Ministry of the Interior, after consulting the Ministry of Labour and Social Policies, a specific memorandum of understanding in which it guarantees the existence of the requirements for the application of the procedure, in that case the employer does not need to file a request for authorisation, but can instead file a draft employment contract or binding offer for the non-EU worker. In this case, the highly qualified worker will be issued a residence permit within 30 days of the notification, during which he/she will be able to stay in Italy and work.

A further change favouring international mobility within the EU concerns workers already holding a valid EU Blue Card issued by other Member States. These workers are allowed to enter and stay in Italy without a visa for work purposes for a maximum of 90 days within a total of six months, provided that they declare their presence in Italy to the Police Headquarters (Questura) within eight working days of entry.

If the holder of an EU Blue Card issued by a Member State has been legally resident in the same State for at least 12 months, he/she may enter Italy, without the need for a visa, to perform highly qualified work for more than 90 days, subject, in this case, to the filing of the request for authorisation. The period of legal residence in the other State required for entry into Italy is reduced to six months if the worker comes from a second Member State where he or she had already arrived in possession of an EU Blue Card issued by a first Member State.

Finally, the joint circular explains that holders of the EU Blue Card may apply for a family reunification authorisation, with the issuance, at the same time as the EU Blue Card, of a residence permit for family reasons, which can be converted into a residence permit for work (employed or self-employed) or for study purposes, if the requirements are met.

As set out at the outset, further changes have been made through Italian Decree no. 79 of 4 April 2024, issued jointly by the Ministry of the Interior, the Ministry of Tourism and the Ministry of Labour and Social Policies. With this decree, the ministries regulate the methods and requirements for entry and stay in Italy also of highly qualified workers identifiable as “digital nomads” and remote workers.

According to the aforementioned decree, “digital nomads” and remote workers are defined as workers –  self-employed in the first case, employees or collaborators in the second – who carry out highly qualified work through the use of technological tools that allow them to work remotely, independently or on behalf of companies, regardless of whether they are resident in Italy or not.

Continue reading the full version published on Norme e Tributi Plus Diritto del Il Sole 24 Ore.

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