The rules on the employment of third-country nationals (which apply regionally) were recently amended in the Brussels Capital Region by an ordinance issued on February 1, 2024, and its implementing decree on May 16, 2024. The following is a summary of these new rules.

1. Inadmissibility

Going forward, the grounds for an inadmissibility decision regarding a work permit are defined in the legal text. An application for a work permit will be inadmissible if the applicant does not have a power of attorney, the application is incomplete or was not submitted correctly, the application does not fall under the jurisdiction of the Brussels Capital Region, or the worker does not have a valid right of residence.

2. Exemptions

Regarding exemptions from work permits, the exemptions for stays shorter than 90 days in all cases of secondment of workers for which there is no prior Limosa declaration to be submitted have been adopted in the new regulations (this is the case, among others, for workers seconded to Belgium for the initial assembly of a good, specialized technicians, workers coming to attend scientific conferences, etc.). Furthermore, a number of other exemptions have also been included in the legal text that apply to stays of less or more than 90 days (which are therefore separate from the Limosa exemptions mentioned above), which from now on also include so-called “executives.” The latter is a new category as it eliminates the specific application for the “executives/directors” category (cf. below). 

Exemptions of less than 90 days are valid by the law itself, which implies that an employer will not have to make a formal application for third-country nationals who are covered by an exemption and spend less than 90 days on Belgian territory (although employers will, of course, have to be able to prove that the exemption applies during any inspection visit). If the third-country national stays in Belgium for more than 90 days, a residency basis is required and the exemption will have to be applied for through the Working in Belgium platform. An exemption applies to secondments, namely when an employee legally resides in another European Economic Area country and is temporarily seconded to Belgium. In the latter case, there is no procedure required and therefore no application must be made through the platform, even when staying more than 90 days on Belgian territory.

3. Granting conditions

The conditions for granting a work permit also saw a number of changes. In the Brussels-Capital Region—for the so-called “residual category,” i.e., workers who do not fall under a special category—the publication of a vacancy on the Actiris website is mandatory for at least five weeks, or one must use the recruitment services offered by Actiris. The result of these actions will always have to be communicated; this becomes a mandatory step in the granting of a single permit. An exemption is provided for positions on Actiris’ list of bottleneck jobs.

There are also some deviations from this general rule of prior publication of a vacancy for specific categories of employees (i.e., for highly skilled staff, visiting professors, specialized technicians, etc.). The category “executives/directors” has been omitted here as these employees can from now on be covered by the exemption of a single permit.

Some categories (e.g., highly skilled workers), have a minimum wage as an eligibility condition. To determine this wage limit, a change was also made: the Brussels Capital Region uses a new definition of the wage concept, which corresponds to code 1 of the DmfA declarations. For secondees (for whom no DmfA declaration is filed), taxable income and social security contributions paid abroad are taken into account. Specifically, this implies that only the base salary will be taken into account for calculating the annual remuneration that must be met for highly skilled workers, intra-corporate transferees, artists and “blue cards.”¹  So the end-of-year bonus, double holiday pay, etc. will no longer be included when assessing whether a third-country national meets a certain wage limit. Only benefits subject to normal social security contributions may be included.  

4. Removal of annual audit requirement

For single permits granted for multiple years, it will no longer be mandatory to submit wage information annually to the administration to check compliance with the wage limits. From now on, the administration will do this automatically, without the employer having to take action.

The removal of this obligation will apply from October 1, 2024, including to (multi-year) single permits granted before this date.

5. End of work permit

Finally, if the employment relationship ends, the work permit will end as a matter of law. The administration will be aware of this because a DIMONA-out (i.e., the registration with the social security authorities regarding the worker’s end of employment) is done and the administration has access to this data. Nevertheless, the administration recommends that employers should also inform the administration when the employment relationship ends.

The changes discussed above will take effect from October 1, 2024. This implies that applications submitted until September 30, 2024 will still fall under the “old” rules, while applications from October 1, 2024 will have to meet the conditions of the ordinance and its implementing decree.