Article 44 of Decree-Law No. 73/2022, in force since June 22nd, introduced a simplified procedure for the verifications referred to in Article 30-bis, paragraph 8, of Presidential Decree No. 394/1999, that is, for the verifications referred to the Immigration office (Sportello unico per l’immigrazione) of the regularity, completeness and suitability of the documentation submitted by the employer for the granting of the authorization to employment of non-EU personnel.
What does the simplification provide for?
The simplification provides, in relation to the planned entries for the years 2021 and 2022, a different modality of the verifications “of compliance with the requirements of the collective labor agreement applicable to the case and the adequacy of the number of applications submitted, for the same period, by the same employer, in relation to its economic capacity and the needs of the enterprise, also in relation to the wage and insurance commitments provided for by the applicable regulations and national collective labor agreements for the category.”.
Said verifications, in order to simplify procedures, are in fact delegated, exclusively and without prejudice to any spot checks by this Inspectorate in collaboration with the Internal Revenue Service (Agenzia delle Entrate):
- to professionals who are registered in the board of labor consultants as well as to those who are registered in the board of lawyers or certified public accountants and accounting experts without prejudice, for the latter two categories of professionals, to the fulfillment of the reporting obligation to the Labor Inspectorates;
- to the comparatively most representative employers’ organizations at the national level to which the employer adheres or gives authority.
Further simplification introduced by Art. 44 under review is provided for in paragraph 5, which excludes the submission of the asseveration “with reference to applications submitted by the organizations of employers comparatively more representative at the national level that have signed with the Ministry of Labor and Social Policies a special memorandum of understanding by which they undertake to ensure compliance by their members with the requirements referred to in paragraph 1.”.
The possible signing of the protocols in question will therefore allow the issuance of clearances exclusively on the basis of the request submitted by the employers’ organizations, which are in any case required to retain for a period of not less than five years the documentation used for the purposes of the checks in question.
Criteria to be observed for verifications
The verifications of immigration applications in question must take into consideration the following criteria:
- financial capacity, which is to be understood as the ability of the enterprise to bear all recruitment costs in relation to the number of personnel required and to maintain, over time, a balanced capital structure that enables it to operate in a balanced manner;
- economic-financial balance, i.e., the ability of the enterprise to meet from its own income the payment obligations it has previously undertaken and the investments that become necessary, as well as to operate under conditions that at least allow it to restore the wealth consumed in the course of operations;
- turnover, which is the sum of revenues obtained by the enterprise through sales of goods and/or provision of services for which an invoice has been issued;
- number of employees to be understood as units of average employees employed, at least in the last two years, under employment contracts;
- type of activity carried out by the enterprise, also with reference to its continuous or seasonal nature.
Verifications to be performed
In relation to these elements, it should be noted that the relevant verifications must be carried out in correlation with each other and, for more detail, it is deemed possible to resort to the indications already contained in art. 9 of Ministerial Decree May 27, 2020 on the “income requirements of the employer” interested in accessing the emersion procedure referred to in art. 103 of Decree-Law no. 34/2020 (conv. by Law no. 77/20202).
In particular, in relation to the employer’s capital capacity and economic-financial balance, it will be necessary to verify the possession, in relation to each worker to be hired, of a taxable income or turnover of not less than 30,000 euros per year, resulting from the latest tax return or the latest financial statements.
In any case, the adequacy of economic capacity will have to be assessed with reference to the number of applications submitted by the same employer on the basis of the collective labor agreements indicated by the Ministry of Labor and Social Affairs and the tables of average hourly labor costs issued by the same Ministry.
With specific regard to the agricultural sector, analytical-type economic capacity indices resulting from the VAT declaration, taking into account the turnover net of purchases or the IRAP declaration, may also be taken as a reference, and, if necessary, consider community contributions documented by the granting bodies.
Documents that will be obtained
The above elements, moreover, constitute the minimum information assets on which to make the required assessments. With respect to these elements, for the purpose of greater awareness of judgment, it is considered that the professional and the employer organization should also acquire:
- the Single Document of Regularity of Contributions (DURC), which will be able to provide knowledge regarding the non-existence of debts with social security institutions;
- a statement, from the employer/legal representative of the company regarding the circumstance of not being aware of investigations and the non-existence of convictions, even if not final, for crimes against the safety and dignity of workers;
- a statement, from the employer/legal representative of the enterprise as well as, if different, from the person in charge of personnel management, regarding the non-existence against them, in the last two years, of violations punishable by the administrative sanction referred to in Article 3 of Decree-Law No. 12/2002 (conv. by L. No. 73/2002) concerning the employment of irregular labor;
- a statement, from the employer/legal representative of the company regarding the needs underlying the request for the clearances and the possible presence of new and substantial contractual commitments (e.g. acquisition of new orders and/or contracts) that justify the possible greater number of clearances requested compared to the previous year;
- a statement, from the employer/legal representative of the company regarding the circumstance that no further requests for asseveration have been submitted to other professionals or associations or, if they have been submitted, an indication of the number of workers involved and their outcome.
Issuance of asseveration
In the event of a positive outcome of the verifications and acquisition of the elements referred to in the preceding points, an asseveration shall be issued, which the employer shall produce together with the application for the employment of the foreign worker or, for applications already submitted for the year 2021, at the time of signing the residence contract.
The affidavit, under the responsibility, including criminal liability, of the declarant, must present the verified documentation and be argued in detail. However, the professional and the organization issuing the asseveration are required, in order to simplify possible assessments, to keep the relevant documentation for a period of not less than five years.
Application of simplifications
The legislature also stipulates that these provisions do not apply with reference to applications for the year 2021 in relation to which verifications have already been carried out by the competent Inspectorate. For other applications already submitted relating to the year 2021, “the asseveration shall be submitted by the employer at the time of signing the residence contract. “These instances, will still be counted for the purposes of the total number of in-quota files.
In any case, the exclusion according to which “the provision regarding the verification of suitability in relation to the employer’s economic capacity does not apply to an employer with a disease or handicap that limits his or her self-sufficiency, who intends to hire a foreign worker assigned to his or her care” remains in place for both years 2021 and 2022.
Checks on requirements and procedures
Lastly, the provision under review highlights the possibility for the Inspectorate, in collaboration with the Internal Revenue Service, to carry out checks on compliance with the requirements and procedures provided for in the Article 44, on which reference is made to the indications that may be provided by the competent Central Directorate for Protection, Supervision and Safety at Work.
Here you can find the model of the asseveration that can be used for the purposes of the procedure in question.