The National Labor Inspectorate for Decreto Flussi 2023 has provided indications for carrying out the preliminary checks preparatory to the release of the no impediment document, entrusted to labor consultants, lawyers, and accountants. The checks must have as their object the capital capacity, the economic-financial balance, the turnover, the number of employees, and the type of activity carried out by the company participating in the assignment of the quotas.
All this is functional to the release by the professional, in the presence of all the requisites, of an affidavit, which must be attached to the request for authorization for the hiring of the foreign worker. Further information was provided on the three-year planning and on the procedure for issuing the no-impediment document.
The National Labor Inspectorate (INL) has in March provided integration and application instructions of the provisions contained in the Legislative Decree no. 20/2023 containing urgent provisions on the legal entry flows of foreign workers and the prevention and fight against irregular immigration. The most relevant steps are listed below:
Programming quotas for input flows
The programming of the quotas of foreigners who can be admitted to Italy is defined by the decree of the President of the Council of Ministers on a three-year basis (with reference to the three-year period 2023 – 2025). This article, which refers to entries for subordinate work also for seasonal needs, and for self-employment, intends to derogate from article 3 co. 4 of the Consolidated text on immigration where annual quota planning is foreseen. The INL reiterates what is indicated by the decree law regarding the possibility, “where it deems appropriate” to adopt further decrees during the three-year period.
The Inspectorate also clarifies another application doubt: the renewal of the applications presented must not be accompanied by the related documentation, where this has already been presented in the first instance.
With reference to agricultural workers, a preferential lane is recognized, in the subsequent Decreto Flussi of the three-year period, for employers who have unsuccessfully submitted the application for authorization in agricultural work.
Simplification of the procedure
The decree law integrates, by means of the second article, the Consolidated law on Immigration by introducing the provisions of Article 24. The provision is interesting because it makes the assignment of some preliminary checks structural, preparatory to the release of the authorization (the first step in the process of issue of the residence permit), to certain categories of professionals (employment consultants, lawyers and accountants – pursuant to art. 1 of Law no. 12/1979) and/or to employers’ organizations, comparatively more representative on the national plan to which the employer adheres or mandates.
Preliminary checks must have as an object in particular: capital capacity, economic-financial balance, turnover, number of employees, and the type of activity carried out by the company participating in the assignment of quotas. All this is functional to the release by the professional, in the presence of all the aforementioned requisites, of an affidavit, which must be attached to the request for authorization for the hiring of the foreign worker. The exceptions are, as they are exempt from the sworn certification procedure, the applications presented by the comparatively most representative employers’ organizations at the national level, which have signed a specific memorandum of understanding with the Ministry of Labor and Social Policies.
The note of the INL under discussion provided valuable additions to the instructions already given, among others, with circular letters no. 3/2022 with reference to some of the parameters subject to preliminary verification. In detail:
Capital capacity
This parameter concerns the verification of the possession, by the future employer (individual, entity or company), of the income requirements necessary to proceed with the hiring of the subject or subjects concerned. The indications for this purpose contained in the D.M. 27/05/2020, which establish a minimum threshold of 30,000 euros of taxable or invoiced income resulting from the last tax return or from the previous year’s financial statements for single instances and refer to a judgment on the adequacy of the economic capacity in relation to the number of applications filed for multiple instances. Employers suffering from pathologies or disabilities that limit their self-sufficiency and who have presented an application for a foreign worker assigned to assist them are exempt from these income checks. The provision contains specifications by sector of activity and cases.
With reference to domestic work or personal assistance, the minimum taxable income required is equal to 20,000 euros per year (in the case of an employer with a family unit consisting only of the person), or 27,000 euros (for an employer with a made-up of several family members living together). The income of the spouse and relatives within the second degree of kinship, even if not cohabiting, as well as any certified exempt income (such as, for example, the disability allowance) may contribute to the definition of income.
With reference to the agricultural enterprise, other indicators that can be inferred from the VAT return are accepted for evaluation, considering the turnover net of purchases or from the IRAP declaration and the community contributions documented by the paying bodies.
Adequacy of the number of requests presented
In the event of multiple requests, the law refers, as mentioned above, to verifying the adequacy of the economic capacity in relation to the number of requests presented, not providing for an automatic multiplication of the minimum threshold of 30,000 euros by the number of workers to be hired. In this regard, the INL clarifies how this verification must necessarily take into consideration “the economic capacity and needs of the company, also in relation to the salary and insurance commitments established by current legislation and by the applicable national collective labor agreements”.
To this end, the INL, referring to the administrative jurisprudence, extends the scope of verification also to the documentation connected to the economic-financial and employment performance of the company over time; an indication of the contractual framework, hours worked and income received, and the related fulfillment of social security and welfare obligations by the company, condition of the social and economic integration of workers and their current prospects for job placement.
The INL states on the point that, for multiple requests made by the same employer, the adequacy of the number of requests presented in relation to the economic capacity must alternatively investigate the possession of:
- turnover, net of purchases, exceeding 30,000 euros and in any case, sufficient to cover the cost of all employees in force, including the foreign workers to whom the requests refer;
- taxable income exceeding 30,000 euros and in any case sufficient to cover the labor costs of all workers in the force, including the foreign workers to whom the requests refer. The labor cost must be determined with reference to the gross salary due to the worker on the basis of the CCNL signed by the most representative trade unions relating to the sector in which the company operates.
Newly established companies
Reference is made to those companies which at the time of submitting the application are not yet in possession of tax returns. In order to verify their economic capacity, it is believed that other indices can be used, such as, for example, the estimated turnover of the first year of the activity or the consistency of the paid-up share capital.
Compliance with the requirements is subjected to random checks by the INL, also in collaboration with the Revenue Agency, referring to this purpose the indications provided in note no. 4918 of 4 August 2022.
Another important clarification, which can be inferred from the note, concerns the scope of operation of this simplification mechanism, which only concerns requests for clearance attributable to flows and only with reference to the cases of subordinate work and seasonal work.
Competencies, procedures, and controls by the INL remain unchanged for other entrance qualifications. To this end, the note mentions by way of example: non-quota entrances pursuant to art. 27 of Legislative Decree no. 286/1998; all hypotheses of conversion of the residence permit into a title which involves the entry into the national labor market of a foreign worker not belonging to the E.U. (eg: PS conversion for study, articles 39 and 39-bis, Legislative Decree no. 286/1998; PS conversion for a traineeship, art. 27, letter f), Legislative Decree no. 286/1998; PS conversion for seasonal work, art. 24, paragraph 10, Legislative Decree no. 286/1998).
Procedures for issuing the no impediment document
In order to simplify the release procedures, it is envisaged:
- the automatic release of the no impediment document, within the overall maximum term of 60 days, where in this term no impediments have been acquired by the Police Headquarters;
- the revocation of the no impediment document and of the visa, the legal termination of the residence contract, as well as the revocation of the residence permit where impediments are subsequently detected (by the police headquarters and/or by random checks by the INL);
- the possibility of carrying out the work activity by the worker in possession of the no impediment document, pending the signing of the residence contract.