Employers' mistake: changing a foreigner's position, but forgetting the Migration Department

In the Lithuanian labor market, more and more employers are hiring foreigners, which is why questions about changing employment relationships often arise in practice. One of the most common situations is when an employer wants to change the job function or other aspects of working conditions of a foreign employee.

However, unlike in the case of Lithuanian citizens, changes in working conditions for foreign employees may be subject to additional migration law requirements. Even a seemingly simple change in job function may require a decision from the Migration Department.

What do employers need to know in this case?

When should the Migration Department be informed about changes?

Lithuanian legislation provides for certain situations when it is mandatory to inform the Migration Department about changed circumstances.

A foreigner who has a residence permit in the Republic of Lithuania must notify the Migration Department within 7 days if:

• changes documents proving a person's identity or citizenship;

• his/her marital status changes;

• changes place of residence.

Such notifications are submitted through the official electronic system of the Migration Department MIGRIS, by logging into your personal account.

However, employers also have a certain obligation to provide information.

The employer must inform the Migration Department within 7 days if:

• the foreigner does not arrive to work or is not employed within more than 10 days from the planned date of arrival in the Republic of Lithuania;

• the salary of a highly qualified employee is reduced and becomes lower than the minimum amount established by law.

Is it possible to change a foreigner's job function?

One of the most important aspects that employers must assess is the employment status of a foreigner who has a temporary residence permit for work purposes. The job function cannot be changed without a decision from the Migration Department allowing the change of job function.

This means that if an employer wants to change an employee's job function (for example, from accounting specialist to financial analyst), migration procedures must first be completed.

In this case:

• the employer must submit a mediation letter to the Migration Department;

• a foreigner must submit an application to change the job function to the Migration Department;

• The Migration Department must make a decision to allow a change in job function;

• Only after this decision can a foreigner change his job function.

It is important to distinguish that a decision of the Migration Department on the change of job function is necessary in cases where the job function of a foreigner changes according to the Lithuanian classification of professions. Meanwhile, if an employee is transferred to a higher position, but his job function does not change in principle, a decision of the Migration Department on the change of job function is not required.

It should be noted that an employer's decision to unilaterally change a job function can have serious legal consequences: the employer's administrative liability, possible restrictions on the future employment of foreigners, including the revocation of a temporary residence permit.

An important term that is often forgotten.

In practice, employers miss one important aspect – The validity period of the Migration Department's decision.

The decision to allow a change in job function is valid for only 1 month. from the date of its adoption.

If the employee does not start working in the new job function during this period, a new application will need to be submitted later to change it.

For EU Blue Card holders – simplified procedure.

Different legal regulations apply to foreigners who have a temporary residence permit based on high professional qualifications (i.e. EU Blue Card holders).

According to the Migration Department's consultations, such employees can change their job function without prior permission from the Migration Department, regardless of how long they have been working in Lithuania.

However, the employer must:

• officially inform the Migration Department via general e-mail about the change in job function;

• by submitting a message signed with a qualified electronic signature.

In addition, the employer must inform the Migration Department in the same way if the salary of such an employee is reduced and becomes lower than the minimum amount established by law for highly qualified employees.

Is it possible to shorten a foreigner's working hours?

Another question that often arises in practice is: Is it possible to shorten a foreigner's working hours?

It should be noted that such an option is usually not allowed, since by submitting a letter of mediation, the employer undertakes to employ the foreigner for the full working time.

In this regard, the reduction of working hours contradicts the original conditions for issuing a temporary residence permit on the basis of employment.

What is the difference between the status of European Union citizens?

It is important to distinguish that the status of EU citizens in the Republic of Lithuania is different from the status of third-country nationals.

For EU citizens:

• temporary residence permits are not issued on the basis of work;

• they apply for a temporary residence permit.

Therefore, the obligation to inform the Migration Department is not applicable to a change in their job function, and, among other things, restrictions related to the working time norm are not applicable.

What should employers take into account?

In summary, the following essential rules can be distinguished:

• Changing a foreigner's job function usually requires a decision from the Migration Department allowing the foreigner to change their job function;

• Failure to comply with the established procedure may result in the temporary residence permit being revoked, the employer being held administratively liable, and the possibility of employing foreigners in the future may also be restricted;

• A more flexible procedure applies to EU Blue Card holders, but the Migration Department must still be informed of any changes.

Therefore, when planning to change the job function of a foreign employee, employers are recommended to assess the applicable migration law requirements and procedures in advance. This allows avoiding situations where a seemingly simple change in employment relationships can lead to significant legal consequences for both the employee and the employer.

Prepared by

Modesta Nekrašaitė

APB Zaleckas Partners

Lawyer