03 Oct Let’s Talk About Visas: Part 1
By Avv. Michele Capecchi, LL.M.
Many foreign friends and clients ask my advice on moving their professional or private lives to Italy. Many have had friends whose ‘uncle got all the documents he needed in one month.’ What I normally say is ‘good for him.’ The fact is, the amount of legal information that a person should know in order to move to Italy is overwhelming, and the process is riddled with pitfalls that could transform the dream of a new life into a real nightmare.
This article is not meant to provide a comprehensive description (how boring!) of the Italian legal system, but it does provide prospective expats with a brief overview, a ‘how-to’ for those considering a move to Italy to set up a business, get married, buy a house, or convert one type of visa into another.
The most common reasons for coming to Italy are tourism, to study, to work, to join or follow family, and business. Let’s start with the first three and the entrance to Italy.
Do you really need a visa to enter Italy as a tourist? Not always.
(A) Visa-free access to the Schengen states for 90 days:
If you are from a country such as the United States, Canada, Mexico, Brazil, Argentina, Australia, New Zealand, Japan and other countries covered by the Schengen visa waiver scheme (see the immigration section at http://www.interno.it) and are planning to travel within the European Schengen area for a maximum of three months in any six-month period, you will not need a tourist visa.
Before spending a long time at the Italian Consulate to apply for a visa, check online to see if your home country participates in the visa waiver program of the Schengen states. If you are from a country that does not participate in the Schengen visa waiver scheme, you will need a tourist visa (type C) regardless of the length of your trip in Italy.
After 90 days in the Schengen states, you are required to leave the area for at least 90 days before returning to Italy without a visa. The days are calculated by the date stamped on your passport upon entry in the Schengen states. This serves as your tourist visa during your stay, and the number of days does not include the days that you spend outside of the Schengen area.
Three important, practical notes: (1) You might hear that, if, at the end of your 90 days you go to the UK or any other country outside the Schengen area for a few days, you can ‘recharge’ your 90-day credit and come right back to Italy for another 90 days. This is not true: once your 90 days in the Schengen states are up, you must spend at least 90 days outside of the 25-state area. (2) The time you spend in a country that is not part of the Schengen area is not counted as part of your 90 days. To ensure that those days you spend outside are not calculated as part of your 90 days, I suggest that every time you leave the Schengen area, you ask the custom authorities to stamp your passport to record the date and time away. (3) With a tourist visa, you cannot work in Italy.
(B) Long-stay and ‘national’ visas
If you plan to visit Italy for more than 90 continuous days (for a maximum of 365 days), you will need a proper visa (type D), which is valid only for the country that has issued the visa and includes an airport transit in another Schengen state.
Cooking, fine arts, art history, fashion design, Italian language: the range and number of courses offered in Italy is impressive. If you plan to study here as part of a school program, it is likely that your school will give you instructions or even take care of the requirements and papers you need. The visa provided will indicate how long you are allowed to stay in Italy and travel in the Schengen area.
On the other hand, if you plan to study in Italy independently, you need to keep in mind a few important things. First of all, ask the Italian Consulate in your home country if there is a minimum requirement of hours that you need to take per month in order to have a student visa. In many cases, the student visa is granted only if you commit to 20 hours of courses per week (or 80 hours a month). This is also an important question to ask the school, as sometimes there are special offers for non-intensive classes (about 10 hours a week), which might not be enough to comply with the Italian Consulate requirements for the student visa.
Note: As of September 2010, if you will be studying in Italy for less than three months and you come from a country that participates in the Schengen visa waiver program, you do not need a student visa. However, if you are also planning to work while studying abroad, with a student visa you may work part-time (up to 20 hours a week).
Many people want to know if a student visa can be converted into a work visa. Although complicated, this procedure is possible (Art. 14 comma 5 D.P.R. n. 394/99). Look for more about this in a future TF article.
A work visa is the most difficult to get. Winning the lottery may arguably be easier! Over the past 12 years, Italy, like the rest of Europe, has confronted a problem of immigration from non-European Union (EU) countries. The government has been forced to implement new laws to better control the situation. Therefore, only those people who have a real, concrete possibility of working in Italy can apply for such a visa. Having someone willing to hire you is not enough. Each year, the Italian government sets a maximum for the number of work visas to be granted to non-EU citizens: once the available visas are assigned, even if you have a person willing to hire you, you will have to wait until the next year.
However, on December 14, 2010 the Italian government enacted the Flow Decree, establishing the amount of immigrants to be admitted for work during 2011: a maximum of 100,000 workers. The visas are assigned mostly to domestic workers, caretakers and ‘special nationalities’ that have reserved quotas through a provision made by the minister of labor and social policies. 11,000 of those visas will be reserved for foreign citizens currently holding student and professional training visas, who will be allowed to convert their visas into work visas. No quotas, so far, seem to be assigned to self-employed persons. Further details are expected in the coming weeks, before the publication of the Flow Decree.
The process to obtain the eagerly awaited work visa can take more than four months. If you are planning to come to work in Italy in 2011, or if you currently have a student visa that you hope to convert to a work visa, read the following steps carefully because only the quickest and luckiest will have a chance of obtaining a working visa:
Phase 1: ‘click day’ * and nulla osta. The employer (or professional in charge of this procedure) will have to wait for the publication of the Flow Decree, expected at the end of January or beginning of February; from that day forward (a.k.a. ‘click day’), it will be possible to submit the online request for hiring the non-EU citizen in question. The list of documents that need to be submitted with the application is long and includes information regarding the hiring company, the proposal of contract, and information about any accommodation that will be provided to the employee. Filing the application correctly is crucially important; any request done incorrectly is rejected. The applications are reviewed in chronological order, that is, first-come-first-served, after arriving in the computers of the immigration desk. Many have correctly compared this system to a real lottery, since the odds of getting a spot are very close to those of winning a jackpot.
A large portion of the quotas will be met during the very first days, and it will take about one month to know if an application is one of the 100,000 accepted. In that case, if all the documents requested by law are in order, there is a good chance that the Immigration Desk will grant the nulla osta (a declaration of ‘no impediment’ to hiring the foreign worker). At this point it will mostly be a question of time and bureaucracy.
*As we went to press, we discovered that the deadline for ‘click day’ for work visa applications was set for January 30, so get applying! Go to the immigration section at http://www.interno.it for more information.
Phase 2: the visa. After the nulla osta is granted, the Immigration Desk will e-mail it together with all relevant documents to the Italian Consulate of the employee-to-be’s home country. He or she then has six months from the granting of the nulla osta to present the request for the work visa at that consulate. The visa is normally granted within 30 days.
Phase 3: the contratto di soggiorno (residence contract) and permit to stay. With the visa stamped on his or her passport, the worker will finally be allowed to enter Italy. At this point he is requested to go, within eight days, to the Sportello Unico Immigrazione to sign the contratto di soggiorno with the employer, obtain a fiscal code and get the form (Mod 209) to request the permesso di soggiorno (permit to stay). There is even a provision should the hiring process break down (see the box ‘What if?’).
The form for the permit to stay needs to be mailed with recorded delivery via post office to the questura (police) of the comune (municipality) where the employee will live and work. The post office gives the applicant a receipt with two codes-user I.D. and password-to use online at http://www.portaleimmigrazione.it to check on the status of the request.
Until the applicant physically obtains the permesso di soggiorno, which can take more than 10 months, the receipt from the post office is sufficient proof that the applicant is legally in Italy and will be hired; therefore, carry it at all times in case of a police check.
ONCE YOU HAVE ARRIVED IN ITALY
Permit of Stay and Declaration of Presence
According to law n. 68 of May 28, 2007 (‘Rules and regulations governing short stay of foreign nationals’), all foreign citizens coming to Italy for medical visits, tourism, business and to study for a time period shorter than three months do not require a residence permit (permesso di soggiorno). They simply have to declare their presence in Italy.
Citizens of Schengen visa waiver countries must notify their presence in Italy at the local central police station (questura) of the province in which they are staying within eight days of their entrance in Italy, by filling in the specific form entitled the Dichiarazione di Presenza. For citizens of non-Schengen countries, the Schengen stamp on the travel document at the moment of entrance in Italy is enough.
Therefore, if you plan to stay in Italy for more than three months, you must apply for a resident permit within eight working days of your arrival in Italy. This permit, which must be carried with the visitor at all times in case of police checks, authorizes residence in Italy for the duration indicated on the visa (article 5 of Law 286/1998 – Unified Code of Immigration).
EU citizens do not need a residence permit to stay in Italy for more than three months. If they want, they can ask to be registered in the Anagrafe della popolazione residente (public register of the residents) of the comune where they are living. In Florence, this office is located in Palazzo Vecchio and in several satellite offices in the neighborhood.
The permit to stay is a very important document for travelers because, under Schengen rules, with that permit, unless limitations are imposed, they can enter and leave the Schengen area and travel freely for up to 90 days in any six-month period within the other Schengen area states.
Finally, with any kind of permit to stay, as long as it is valid and updated, the employee can enter and leave the country as much as he/she wants, can change his/her job and enjoy the health care services provided by the Servizio Sanitario Nazionale (public health administration).
So what if, while you are waiting for the process to be completed, the employer-to-be changes his mind or realizes that he can no longer hire you? You have waited for months, you finally have your nulla osta, you are in Italy, and the day that you are supposed to meet the employer at the Sportello Unico Immigrazione to sign the residence contract, he doesn’t show up. Don’t panic! Pursuant art. 22 of the Unified Code of Immigration 286/98, along with information released in 2007 by the Ministry of the Interior and a recent decision by the Administrative Court of Lombardia (TAR Lombardia, n.7528 of December 13) dictates that if the worker has already entered Italy, the Sportello Unico shall authorize the worker to ask for a stay permit while waiting to find new employment. Therefore, you will receive a permesso di soggiorno per attesa occupazione, valid for six months during which you may stay in Italy and look for alternate employment. Once you find a new employer willing to hire you, all he/she will have to do is come with you to the Sportello Unico and sign a new residence contract.
Disclaimer: The information provided in this article does not constitute legal advice and should not substitute for counsel. The information is based on the opinion of an independent expert and does not claim to be complete or definitive.
Originally published by Michele Capecchi on The Florentine (http://www.theflorentine.net/lifestyle/2011/01/legalized-whats-your-visa/).