What actions should be carried out by the employer and the employee, and which features should be given special attention?

The regulation regarding the employment of third-country employees is provided within Directive 2014/36/EU of the European Parliament and of the Council of 26 February 2014 on the conditions of entry and stay of third-country nationals for the purpose of employment as seasonal workers and within Directive 2014/66/EU of the European Parliament and of the Council of 15 May 2014 on the conditions of entry and residence of third-country nationals in the framework of an intra-corporate transfer.

The most important legal acts regarding this matter includes the Foreigners in the Republic of Bulgaria Act (FRBA), the Regulations for Implementation of the Foreigners in the Republic of Bulgaria Act (FRBA) (RIFRBA), Labour Migration and Labour Mobility Act (LMLMA) and the Regulations for Implementation of the Labour Migration and Labour Mobility Act.

I. Conditions

The European Union Blue Card (the EU Blue Card) single work and residence permit is issued to third-country employees who will be engaged within the highly-qualified employment sectors in Bulgaria.

What does “highly-qualified employment” mean?

The very first paragraph of the Additional Provisions of the Labour Migration and Labour Mobility Act explains what is behind this concept: 'High-skilled employment' is the employment of a person who possesses a high professional qualification representing:

(a) a higher education qualification attested by a diploma, certificate or other official document issued by a competent authority after studies of a duration of not less than three academic years at an educational institution recognised as a higher education institution by the State concerned, or

(b) in the case of posts included in the list approved by order of the Minister of Labour and Social Policy, knowledge, skills and competences attested by an official document issued by a competent authority, of professional experience at a level comparable to higher education acquired within the period specified in the list and relevant to the post or sector referred to in the employment contract, or

(c) in the case of posts outside point (b), knowledge, skills and competences which are attested by an official document issued by a competent authority for at least 5 years' professional experience at a level comparable to higher education and which are relevant to the posts or sector specified in the contract of employment.

All regulated professions are also included in the scope of the concept: architect, veterinarian, doctor, medical worker, ship workers, lawyer, auditor, etc.

This is the procedure under which IT and software specialists - nationals of non-EU countries - can be recruited. In this regard and in view of the increased requirements of the previous versions of the Labour Migration and Labour Mobility Act, the legislator, with amendments from the beginning of 2023, considered that with regard to certain professions (such as IT and software specialists), the possession of a university degree with a duration of at least 3 years is not a requirement for occupying the position, since preference is given to professional qualifications, knowledge and skills, which can also be acquired from private schools with a course of study shorter than 3 years.

In order to be employed as a third-country national under the terms of the EU Blue Card work permit, certain conditions must be met, which are subject to verification by the evaluating authorities

- The gross salary specified in the foreigner's employment contract must be at least 1.5 times higher than the average salary in the Republic of Bulgaria according to the latest available data published by the National Statistical Institute for a period of 12 months prior to the conclusion of the employment contract;

-the duration of the employment contract is not less than 6 months.

Number of employed third-country nationals employed by the employer

- according to Art. 7, Paragraph 1, item 2 of LMLMA the total number of third-country employees, working for a local employer for the preceding 12 months, shall not exceed 20 percent of the average number of the following employees - and for small and medium-sized enterprises within the meaning of Art. 3, Para. 1, item 1 of the Small and Medium-sized Enterprises Act the maximum amounts to 35 percent.

- the working conditions and remuneration offered are not less favourable than those for Bulgarian nationals in the relevant category of work;

- the third-country national must possess the specialised knowledge, skills and professional experience required for the job in question, as evidenced by documents.

II. Procedure

The procedure for issuing of "EU Blue Card" work and residence permit takes place in the following stages and steps:

1. With the amendments that came into force as of 01.06.2021, the competent authority that issues the permit for access to the labor market has changed. The Employment Agency no longer processes applications - this is entrusted to the Migration Directorate in order to speed up and focus the process within one institution. The documents are submitted to the Migration Directorate or to the department / sector / group "Migration" at the regional directorates of the Ministry of Interior by the employer or an authorized person. If until the entry into force of the amendments, as of 01.06.2021, only the employer or an authorized person could initiate the procedure, now the employee can personally apply for a work permit of the type "EU Blue Card", provided that the employee has a long-term residence permit, and the application is also signed by the employer. This amendment will facilitate the procedure and encourage more employers to go through the process of issuing the permit for access to the labor market, as the employees themselves can now be active participants in the procedure.

A number of document, some of them are listed below, shall be attached to the application:

a) proof of education, professional qualifications and appropriate professional experience of the third-country employee, duly certified, translated into Bulgarian and meeting the requirements of the job description;
b) informal justification of the employer, in which he sets out his motives for the employment of the respective employee, as well as the reasons why he does not want or cannot hire Bulgarian citizens or foreigners with equal rights as Bulgarian citizens having the requested profession, who meet the requirements specified in the job ad;
c) a declaration by the employer - the employer shall submit a declaration about the third-country employee together with the employment contract; On the basis of this declaration, it shall be decided whether the statutory number of third-country employees is exceeded;
d) a document for secured housing - this is one of the significant changes that affect the application process. As the documents are submitted to the Migration Directorate, which, in addition to the permit for access to the labor market, should subsequently rule on the employee's residence. (Unlike the old regulation, in which the documents for the issue of the EU Blue Card itself were submitted to the Migration Directorate, but with a permit for access to the labor market already available from the Employment Agency). In this regard, it is necessary to submit documents for secured housing at the time of applying for an "EU Blue Card". This amendment significantly affects the process, as from a practical point of view the only possibility to provide housing if the employee is not in Bulgaria is for it to be rented by the employer for the employee, and subsequently to re-conclude the rental agreement with the employee.
e) a criminal record certificate issued by the State of which the employee is a national or by the State of his or her habitual residence, when applying for a permit for the first time.

The employer shall declare that the terms of the employment and the salaries offered are no less favorable than the conditions for the Bulgarian employees for the relevant category of employment.

The Migration Directorate checks the documents under Art. 33k, para. 5 of the Foreigners in the Republic of Bulgaria Act, as in the absence of a document, as well as in case of need to provide additional documents, notifies the applicant electronically of these circumstances and sets a 7-day term for submission of documents. When the foreigner has a permitted long-term residence on the territory of the Republic of Bulgaria, a reference to the permitted right of residence shall be attached to the application.

The Migration Directorate shall send the application with all documents electronically to the State Agency for National Security, which shall send a written statement under Art. 41, para. 1, item 2 of the State Agency "National Security" Act, when the person is on the territory of the country, and in the cases of art. 33k, para. 13 of the FRBA - within 10 days after giving an opinion on the visa application under Art. 15, para. 1 of the FRBA.

The Executive Director of the General Employment Agency shall send electronically to the Migration Directorate a written statement on the presence or absence of grounds for exercising highly qualified employment within 14 days of receiving the application from the Employment Agency.

For each application, the Employment Agency collects ex officio information about the data on the employer, and in connection with the provision of the written opinion, the Employment Agency ex officio requests information from:

• The National Revenue Agency for the existence of obligations of the employer according to Art. 87, para. 11 of the Tax-Insurance Procedure Code;
• Executive Agency "General Labor Inspection" for entered into force penal decrees for violations referred to in Art. 11 LMLMA.

When the application is submitted by the employer or a person authorized by the latter, the Migration Directorate sends an electronic message to the employer within three days of receiving positive opinions, stating that the foreigner has grounds for exercising highly qualified employment. The announcement is also sent to the Consular Relations Directorate at the Ministry of Foreign Affairs.

The employer shall notify the foreigner of the notification, and within 20 days from the sending of the notification to the employer the foreigner must take actions for submitting an application for the issue of a visa under Art. 15, para. 1 of the FRBA. In the cases of refusal to issue a visa under Art. 15, para. 1 of the FRBA, the Consular Relations Directorate at the Ministry of Foreign Affairs shall notify the Migration Directorate and the State Agency for National Security.

2. Visa D

The employer shall notify the foreigner of the notification, and within 20 days from the sending of the notification to the employer the foreigner must take actions for submitting an application for the issue of a visa under Art. 15, para. 1 of the FRBA. In the cases of refusal to issue a visa under Art. 15, para. 1 of the FRBA, the Consular Relations Directorate at the Ministry of Foreign Affairs shall notify the Migration Directorate and the State Agency for National Security.

3. Executive Agency Labor Inspection

Within 7 days from the actual commencement of work of foreigners, employers are required to notify the relevant territorial directorate of the Executive Agency "Labor Inspection" by filling out special forms, published on the official website of the Executive Agency "Labor Inspection".

The Executive Agency "General Labor Inspection" carries out specialized control activities in connection with the employment of foreigners in the Republic of Bulgaria, within which the control authorities have the right to visit all sites where work is performed, as well as to require personal documents, including and from foreigners residing and working there.

III. Particularities

1. Following the amendments, the EU Blue Card work permit is issued for a period of up to 5 years, renewable as long as the conditions for issuing it are still in place.

2. According to Art. 20 of the LMLMA during the first two years of highly qualified employment the EU Blue Card holder could exercise activities meeting the conditions under which the EU Blue Card was issued, just on the territory of the Republic of Bulgaria. For this period the EU Blue Card holder could change his employer only under the conditions of Art. 33k of the FRBA.

3. The Director of the Migration Directorate shall issue or refuse to issue a Blue Card work permit within 60 days of the submission of the documents, and the procedure for issuing an EU Blue Card work permit may not be longer than 3 months. In cases of legal and factual complexity, the time limit for examining the application may be extended by one month, which shall be notified in writing to the employer or the foreigner. If necessary, documents and information shall be requested within 14 days of receipt of the notification. Where the additional documents and information are not provided within the time limit specified, the procedure for granting the permit referred to in paragraph 1 shall be terminated.

4. The holder of an EU Blue Card issued on the basis of a high level of professional skills within the meaning of Article 17(2)(1)(c) of the LMLMA shall be issued with a residence permit in accordance with the requirements of Regulation (EC) No 1030/2002, with the remark "[Position not listed in the Regulations implementing the Labour Migration and Labour Mobility Act]".

5. In case of change of employer pursuant to Art. 2 of the Labour Migration and Labour Mobility Act during the first 12 months of highly qualified employment, the new employer or a person authorised by him or the foreigner shall submit an application for change of employer on paper or electronically after establishing technical conditions to the Migration Directorate or to the Migration Department/Sector/Group at the regional directorates of the Ministry of the Interior, and the application shall be accompanied by the documents referred to in paragraph 5, items 6 - 8. After providing within 7 days an opinion from the Employment Agency on the circumstances referred to in the first sentence which have changed, the Director of the Migration Directorate or an official authorised by him/her shall issue or refuse to issue the new EU Blue Card long-term residence and work permit within 30 days from the submission of the application.