Luxembourg – ADEM: changes to the process for declaring a job vacancy in order to obtain a recruitment authorisation certificate

What’s new with regard to the procedures to be followed in Luxembourg when applying to ADEM for a job vacancy declaration and a recruitment authorisation certificate?

Following the entry into force of the law of 7 August 2023, a number of changes have been made to the Labour Code and to the law of 29 August 2008 on the free movement of persons and immigration.

One of the interesting measures in this respect relates to the change in the obligation to declare a job vacancy before recruitment.

Previously, a company in Luxembourg wishing to recruit a person who was not a national of a Member State of the European Union and its equivalents (Iceland, Norway, Liechtenstein, Switzerland, or a British national who was a beneficiary of the Withdrawal Agreement) had to declare a job vacancy to ADEM.

Such a declaration was made via MyGuichet or by using a PDF form, and the job offer remained valid for two months.

At the end of this two-month period, if no employee could be found on the local market, the employer had to apply for an authorisation certificate from ADEM allowing him to hire a third-country national with a work permit.

The law of 7 August 2023, which has just come into force in Luxembourg, makes three important changes to the obligation to declare a vacancy and obtain an ADEM certificate.

1. High shortage” occupations: direct application for a certificate

The first – and most important – change concerns occupations classified as “very shortage” for which it is possible to request a certificate directly from ADEM, in accordance with the new article L-622.4 of the Labour Code.

A list relating to this typology is published annually, and an update (based on the year 2022) has just been published in the Mémorial B to accompany the entry into force of the law.

The 31 classes listed include :

• Certain building trades (e.g. roofers, zinc workers, facade builders);
• Many IT professions (e.g. information systems administrators, analysts, network administrators, security auditors, IT design and development experts, etc.);
• The banking sector (e.g. credit analysts, KYC specialists, account managers), as well as the accounting and auditing sectors;
• Engineering (design, industrial research and development and production) and maintenance;
• The medical sector (care assistants, nurses, therapists);
• The social sector (social workers, coordinators, educators);
• The legal sector (lawyers, jurists);
• The scientific research sector

For these different professions, it will be possible to apply directly to ADEM for a certificate in order to be authorised to employ a third-country national who has a work permit.

This request will be made using the new version of the form available for declaring a vacancy.

2. Other professions: Abbreviation of the deadlines for the provision of a certificate by ADEM

On the other hand, for occupations that do not fall into the “very shortage” category, it will still be necessary to declare a vacancy, but the deadline will now be particularly shortened.

In fact, the market test carried out by ADEM – i.e. checking whether or not there are jobseekers likely to respond to the vacancy – will now be carried out within 7 working days.

If ADEM does not identify a profile likely to meet the offer and registered as a jobseeker, it will issue a certificate within 5 working days.

If one (or more) profiles are identified, ADEM will have a further 15 working days to forward their details to the employer so that he/she can make the selection or, failing that, to inform the employer that the recruitment process has been unsuccessful.

In this case, ADEM will assess the justification provided by the employer and may refuse to issue the certificate if no response is received (within one month of the profile being sent) or if the response is considered to be unjustified.

The process to be followed is outlined below:

3. Family members of third-country nationals: Exclusion from the scope of obtaining an ADEM certificate

The final change concerns the scope of persons with direct access to the labour market.

From 1 September 2023, family members of third-country nationals holding a Luxembourg residence permit on the basis of family reunification will have direct access to the Luxembourg labour market.

The same will apply to third-country national family members holding a temporary residence permit (again on the basis of family reunification) as well as – on the basis of an application for a temporary occupation permit – to applicants for international protection for more than 6 months and those who have obtained a deferral or stay of removal.

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For more information on the rights and obligations relating to vacancy declarations, obtaining a certificate to hire a third-country national, or on employment law, please do not hesitate to contact our law firm.