Employers who wish to hire a third-country national for a period of less than 3 months in order to carry out seasonal work must first make a declaration of vacant position to the National Employment Agency (Agence pour le développement de l'emploi - ADEM).

Employers, who have been given a mandate can submit the application for the work permit on behalf of the third-country national.

Who is concerned

Each employer who intends to hire a third-country national for seasonal work is concerned.

Prerequisites

Hiring a third-country national as a seasonal worker is only possible if the activity is related to seasonal work.

The following activities are considered to be seasonal work:

• harvesting (incl. grape harvesting, etc.);
• packaging of harvested products;
• leisure and holiday instructors and coordinators;
• holiday tour guides and tourist guides;
• surveillance and maintenance of beaches, outdoor swimming pools and camp sites;
• positions in retail stores, hotels and restaurants which are only open at certain times of the year, or which have a regular and foreseeable season-related increase in activity during the year;
• positions held in companies involved in aviation and the transportation of people that have a regular and foreseeable seasonal-related increase in activity during the year.

How to proceed

Declaration of a vacant position

Before they can hire a new seasonal worker, employers must submit a declaration of vacant position to the National Employment Agency (Agence pour le développement de l'emploi - ADEM). The declaration will allow the National Employment Agency to check whether there is a suitable candidate available on the local or EU job market.

If the job offer cannot be filled with a person registered with the ADEM within a 3-week deadline, the employer is allowed to conclude, under certain conditions, an employment contract with a person of their choice, including a third-country national.

To this end, the employer must submit an application on plain paper to the ADEM's director and request a certificate granting them the right to hire a third-country national.

The employer can then sign a dated employment contract with the future seasonal worker. It may be stated in the contract that the start date is "the date on which the worker obtains the work permit for seasonal workers".

Employers have to submit the original certificate to the third-country seasonal worker, who must attach it to his work permit application. However, employers can directly forward the certificate to the Immigration Directorate if they have been given a mandate by the third-country national to submit the work permit application on their behalf.

Employers who do not submit the application on behalf of the third-country national, are required to:

• request to see the seasonal worker's work permit before beginning the working relationship;
• request a copy of the seasonal worker's work permit and keep said copy for the whole duration of the contract.

Application for a work permit on behalf of the worker

Employers who have been given a mandate by the third-country national, can submit a written application for a work permit (on plain paper) in the name of the seasonal worker.

The application has to be submitted to:

• the Immigration Directorate of the Ministry of Foreign and European Affairs; or
• a Luxembourg diplomatic or consular representation or to a diplomatic or consular mission representing Luxembourg.

The application must be submitted and approved before coming to Luxembourg, except in certain special cases (i.e. third-country nationals who already hold a residence permit in Luxembourg). Applications submitted from Luxembourg are inadmissible.

Supporting documents to be submitted with the application

The application for the work permit must contain the applicant's identity details (surname(s), first name(s) and address in the country of residence) and must be accompanied by the following documents and information:

• a copy of their valid passport, in its entirety;
• a birth certificate;
• an extract from their police records or an affidavit (sworn oath) established in the country of residence;
• a certified copy of the applicant's diplomas or professional qualifications;
• a copy of the seasonal employment contract, dated and signed by both the applicant and the future employer in Luxembourg;
• the original certificate issued by the National Employment Agency (ADEM) granting the employer the right to hire a third-country national;
• proof of suitable housing for the third-country national, or that suitable housing will be provided. This proof is not necessary if the third-country national already obtained an authorisation to come to Luxembourg as a seasonal worker at least once during the previous 5 years;
• proof that the third-country national has applied for or already has health insurance;
• the mandate.

The documents enclosed must be originals or certified true copies. Should the authenticity of a document be in doubt, the Minister of Immigration can request that the document be authenticated by the appropriate local authority and legalised by the Embassy (or alternatively notarised with an apostille of the Hague).

If the documents are not in German, French or English, an official translation by a 'sworn' translator must be attached.

Only complete applications will be processed. Incomplete applications will be returned to the applicant.

Processing the application

The time required for a response from the Ministry of Foreign and European Affairs is generally a maximum of 3 months. If no response is received within this time limit, the applicant can consider that their application has been denied.

When the work permit is granted, the applicant will receive the work permit by post.

If an approval is granted, the employer must notify the beginning of the working relationship to the Immigration Directorate in writing (post, email or fax) and specifically state:

• the identity of the worker and their national identification number (13-digit social security number);
• the start date of employment;
• the identity of the effective employer.

The notification must be submitted within 3 working days from the first day of work.

Administrative formalities to be completed by the third country national

After coming to Luxembourg, third-country nationals must carry out the procedures which are required for a short-term stay.

Employers who illegally employ one or more workers from third countries with no valid authorisations may face administrative and criminal sanctions.

Withdrawal of the work permit

A work permit which has been granted can also be withdrawn if the employer:

• has been sanctioned for illegal work or employment of third-country nationals illegally staying in Luxembourg;
• has gone bankrupt, undergoes compulsory liquidation, or if no economic activity is carried out;
• has failed to meet the legal requirements in matters of social security, tax, labour law or working conditions;
• has not met the obligations required by labour law;
• has eliminated a full-time position in the 12 months immediately prior to the application in order to create a position for a seasonal worker.

If the withdrawal is due to one of these reasons, the employer is required to pay a compensation to the seasonal worker.

The compensation corresponds to the salaries due for the period stated in the employment contract which should have entered into force if there had not been a withdrawal of the work permit.

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