If the employee works in a job called “in tension”
This asylum and immigration bill proposes to create a new temporary residence permit (1 year) for foreigners working in a shortage occupation (list dating from 2021). To benefit from it, the foreign employee in an irregular situation, must justify his presence on the territory for at least three years and have occupied a profession in tension for at least 8 months out of the last 24 months. And it will be up to him to make the request via an individual approach.
“In reality, a foreign employee never submits his file alone. These people have a strong feeling of gratitude vis-à-vis their employer and often ask them for help in compiling their file. However, the asylum and immigration bill provides that, following these requests for regularization, employers will be checked by the French Office for Immigration and Integration, Urssaf and the labor inspectorate to verify their ‘they do not employ other employees in an irregular situation. Result, this will create suspicion on the part of employers »argues Grégoire Hervet, a lawyer working in labor law and foreigners’ rights at Exilae.
In the event of an irregularity, the company is liable to a new administrative sanction of a maximum of 4,000 euros per employee (doubled in the event of a repeat offence). This fine is in addition to the criminal and administrative sanctions that already exist. By embarking on an application for a special temporary residence permit for “short-term occupations”, the foreign employee therefore takes a risk.
If the employee does not work in a so-called “short-term” profession
If the employee does not work in a so-called “shortage” occupation, he would not be eligible for the new temporary residence permit provided for foreigners working in shortage occupations.
To regularize its situation, the company will have to formulate a exceptional admission to stay issued by the prefectures.
“This procedure governed by the Valls circular of 2012 is administrative. It is left to the discretion of the prefects, so it is not a right. Not all requests are accepted. For the employer, it is less risky because it does not trigger an automatic report. Representatives of employers should therefore not fail to plead for removal from the list of occupations in tension”concludes Grégoire Hervet.