Spanish immigration laws conditions the award of a work permit for a foreign citizen to a job that is to be held by a foreign citizen where there are no candidates resident in Spain, regardless of whether they are Spanish citizens or legal residents regardless of their nationality.
Accordingly, before applying for a work permit for a foreign citizen, the entity wishing to hire him or her must contact the national employment service (Spanish acronym: “SPE”) and submit a job offer; only if there are no candidates for the post or if the candidates do not have the required professional profile will the SPE issue a certificate of lack of sufficient applicants. In this case, the administration will process an application for an initial residence permit and work permit as an employee.
By law there are circumstances in which the national employment situation will not be considered when processing a work permit:
a. The spouse or child of a foreign resident in Spain with a renewed residence permit, or the child of a nationalised Spanish citizen or citizens from other member states of the European Union and other states in the European Economic Area, as long as the latter have resided legally in Spain for at least one year and the child is not subject to the Community system.
b. The holders of a prior work permit who are applying for its renewal.
c. Workers necessary for setting up or renovating a production facility or team.
d. Those who have had the condition of refugees during the year following the cessation of the application of the Geneva Convention of 1951, regarding the Status of Refugees, for the motives established in its article I.C.5.
e. Those who have been recognized as stateless and those who have lost the condition of being stateless the year following the termination of said statute.
f. Foreign nationals who have in their charge relatives in the ascending or descending line of Spanish nationality.
g. Foreign nationals born and residing in Spain.
h. Children or grandchildren of Spanish origin.
i. Foreign minors of working age holding a residency permit who are under the guardianship of an appropriate minor protection agency, for those activities which, in the judgment of said organisation, promote their social integration, and once the impossibility of their return to their family or country of origin has been proven.
j. Foreigners who obtain the residence permit under exceptional circumstances and in the cases provided in the regulations and always in the case of victims of gender-based violence (after a final ruling has been handed down) or trafficking in human beings.
k. Foreigners who have held work permits for seasonal activities for two calendar years and have returned to their country.
l. Foreigners who have waived their work and residence permit under a voluntary return programme.
No consideration will be given to the national employment situation in the conditions established in the regulations for the following:
a. Covering positions of trust and executive positions in companies.
b. Highly qualified professionals, including technicians and scientists hired by public entities, universities and research, development and innovation centres that depend on companies, without prejudice to the application of the specific permit system applicable in accordance with the law.
c. Workers employed by a company or group of companies in another country who wish to carry out their professional activities for the same company or group in Spain, when the activities require direct and reliable knowledge of the company.
d. Renowned artists.
Similarly, a work permit will be awarded without considering the national employment situation to nationals from the states that have signed the corresponding international agreements (currently, nationals from Chile and Peru).
The requirement regarding the national employment situation allowing the hiring of foreigners also excludes foreigners who hold a long-stay EU residence permit awarded by another member state of the European Union.
Procedure for obtaining a certificate of lack of sufficient applicants
1. The company wishing to hire a foreign citizen must contact the local office (corresponding to the postcode of the work centre) of the Public Employment Service and provide evidence of a private preliminary procedure for finding candidates for the vacancy.
2. The company will submit a job offer using the official form provided by the employment office.
3. After registering the job vacancy, the employment office will search its database to confirm the number of possible candidates.
4. If the search returns a small number of candidates, the employment office will publish the job vacancy for a minimum of 15 days.
5. After that period, the employment office will send the company a list of qualified candidates to be interviewed.
6. After receiving the list, the company will hold job interviews with all the candidates proposed by the employment office and only if it decides not to hire any of the candidates will the company send a report to the employment office with the interview results and the reasons why it rejected the candidates.
7. After receiving the report, the employment office will assess the results and, if it finds the company's reasons appropriate, it will draft a certificate of lack of sufficient applicants.
Last updated: 24|09|2013