What is the national employment situation and how does it affect the hiring of foreigners in Spain?

Surely the term national employment situation rings a bell, but it is highly likely that you do not know exactly what it means. And that is normal!

For this reason, in this blog post we want to talk at length about this requirement. We often come across it in our day-to-day work and it is usually one of the biggest obstacles for foreign nationals to be hired as employees in Spain.

Below, we will explain what the national employment situation is and what exemptions exist for its application. In addition, we will provide practical examples for each of the scenarios.

💼 The National Employment Situation

The national employment situation is the legal mechanism that determines whether it is possible to hire a foreign national in their country of origin. Its objective is to ensure beforehand that this job vacancy cannot be filled by workers who are already integrated into the Spanish internal labour market.

The regulations establish that the national employment situation allows the hiring of a foreign national in the following scenarios:

📃 Shortage Occupation List

Hiring is viable if the occupation that the worker is going to perform in the company is included in the catalogue of shortage occupations (occupations that are difficult to fill). This catalogue is published on a quarterly basis by the State Public Employment Service (SEPE).

📋 Occupations Outside the Catalogue

In the case of occupations that are not classified as difficult to fill, hiring is allowed when the employer manages to prove to the Immigration Office the difficulty in filling those vacant posts with workers who are already integrated into the Spanish internal labour market.

For this purpose, the Immigration Office will take into consideration the report submitted by the Public Employment Services, as well as the urgency of the hiring need proved by the company.

To be able to justify this, the employer must previously post a job offer both on the Empléate portal and with the Public Employment Services.

Practical example: You own a restaurant and are looking for a chef specialised in a very specific gastronomy. You publish the offer on the Empléate portal for 8 days. If no valid candidate residing in Spain comes forward, the SEPE will issue you an "insufficiency of applicants certificate". With that document in hand, the Immigration Authority (Extranjería) will allow you to hire that chef who resides outside of Spain.

🌎 International Agreements

Hiring is also allowed if the authorisation is aimed at nationals of States with which Spain has signed international agreements on this matter (as is the case with Chile and Peru).

Practical example: You need to fill an administrative assistant vacancy. There is no shortage of this profession in Spain, but the ideal candidate you want to hire resides in Peru. As Spain has an international agreement with Peru, the national employment situation will not be taken into account, so you can start their recruitment in their country of origin without going through the SEPE.

⚖️ Exceptions of Organic Law 4/2000

Finally, the national employment situation allows hiring if it is proven that one of the specific exception scenarios set out in Article 40 of Organic Law 4/2000 applies. Below, we will detail them and give examples.

The exceptions to the national employment situation are regulated in Article 40, paragraphs 1 and 2, of Organic Law 4/2000, of 11 January, on the rights and freedoms of foreigners in Spain and their social integration.

👨‍👩‍👧‍👦 Reunified Family Members

Reunified family members of working age, or the spouse or child of a foreign national residing in Spain with a renewed authorisation, as well as the child of a naturalised Spaniard or of citizens of other Member States of the European Union and of other States party to the European Economic Area, provided that the latter have been legally residing in Spain for at least one year and the Community regime does not apply to the child. 

Practical example: A professional from Colombia resides in Spain and has just renewed her permit. Her spouse, who has just arrived in Spain through family reunification, finds a company that wants to hire him. This reunified spouse will not be subject to the national employment situation, so the company will be able to hire him directly.

🔄 Holders of a Prior Authorisation

Holders of a prior work authorisation who intend to renew it.

Practical example: A worker of Moroccan nationality who already holds a valid residence and work permit as an employee and is about to proceed with their first renewal. From that moment on, the company wishing to hire them will no longer need to justify the difficulty of finding workers in the Spanish internal labour market (the national employment situation does not apply to them), and the worker can be hired for any occupation and in any province of Spain.

⚙️ Workers for Assembling Installations or Production Equipment

Workers necessary for the assembly for renewal of an installation or production equipment.

Practical example: A factory in Valencia buys specialised machinery manufactured in Japan. The Spanish company can directly hire the Japanese technicians necessary to assemble the equipment in Spain.

🕊️ Refugees

Those who had enjoyed refugee status, during the year following the cessation of the application of the Geneva Convention of 28 July 1951 on the Status of Refugees, for the reasons set out in scenario 5 of section C of its Article 1. That is to say, because the circumstances in their country of origin have improved and it is safe to return.

Practical example: A person who had refugee status in Spain, but lost it six months ago because circumstances in their country of origin changed and it is now safe to return. During that first year following the cessation of refugee status, they are exempt from the national employment situation.

🏳️ Stateless Persons

Those who had been recognised as stateless and those who had lost stateless status the year following the termination of said status.

Practical example: A citizen who was stateless but has recently acquired a nationality. During the year following that loss of status, they benefit from this exemption.

🇪🇸 Family Members of Spaniards

Foreign nationals who have dependant ascendants or descendants of Spanish nationality.

Practical example: An Ecuadorian citizen who is the father of a child born in Spain who has acquired Spanish nationality by value of simple presumption. Since Ecuadorian legislation does not automatically grant nationality to children of Ecuadorians born abroad, and to prevent the minor from being left in a stateless situation, Spanish legislation directly attributes Spanish nationality of origin to them. In this case the father is exempt.

🏡 Foreign Nationals Born and Resident in Spain

Foreign nationals born and resident in Spain.

Practical example: A young person of foreign parents who was born in Madrid, is a resident in Spain and has just turned 16 (working age).

🧑‍🧒 Children or Grandchildren of a Spaniard of Origin

Children or grandchildren of a Spaniard of origin.

Practical example: A Mexican architect whose maternal grandfather was Spanish of origin. She can be hired by a company in Spain without having to go through the SEPE review.

🏫 Minors Under Guardianship

Foreign minors of working age with a residence authorisation who are under the guardianship of the competent child protection entity, for those activities that, in the opinion of said entity, favour their social integration, and once the impossibility of return to their family or country of origin has been proven.

Practical example: An unaccompanied minor of 17 years of age who is under the guardianship of the social services of an autonomous community and receives a job offer for a mechanic workshop.

🌱 Exceptional Circumstances (Arraigos)

Foreign nationals who obtain residence authorisation for exceptional circumstances (arraigos) in the scenarios to be determined by regulation and, in any case, when dealing with victims of gender violence or human trafficking.

Practical example: A foreign woman who has obtained a residence and work authorisation for being a victim of gender violence. Her employer does not need to justify the shortage of job applicants.

🍓 Seasonal Activities

Foreign nationals who have been holders of work authorisations for seasonal activities for two calendar years and have returned to their country.

Practical example: A Senegalese seasonal worker who came to Huelva for the strawberry campaign for two consecutive years and strictly complied with his commitment to return to Senegal. In the third year, an agricultural company can hire him directly.

✈️ Voluntary Return Programme

Foreign nationals who have renounced their residence and work authorisation under a voluntary return programme.

Practical example: A Bolivian worker who returned to her country taking advantage of a voluntary return programme. Once her period of commitment not to return has ended, a Spanish company can offer her a employment contract directly without justifying the national employment situation.

👔 Company Executives

The coverage of positions of trust and company executives.

Practical example: A multinational company opening a new headquarters in Madrid needs to transfer its Operations Director from its subsidiary in Colombia to lead the project in Spain. As it is an executive position of strict trust, the regulations exempt it from applying the national employment situation, so the company does not have to publish the vacancy on SEPE and can manage their direct recruitment.

🔬 Highly Qualified Professionals

Highly qualified professionals, including technicians and scientists hired by public entities, universities or research, development and innovation centres dependent on companies, without prejudice to the application of the specific authorisation regime applicable in accordance with this Law.

Practical example: A Spanish public university or a state research centre needs to incorporate a highly specialised biologist of Mexican nationality to lead an innovation and development project. As she has a highly qualified scientific profile, the university is exempt from applying the national employment situation and can process the permit directly.

🏢 Intra-Company Transfer

Workers on the payroll of a company or group of companies in another country who intend to carry out their work activity for the same company or group in Spain.

Practical example: A corporate advertising agency with offices in Buenos Aires and Barcelona decides to transfer its main graphic designer from the office in Argentina to the one in Spain. As this is an internal transfer of a worker who already belongs to the payroll of the same business group (intra-company mobility), they are exempt from the national employment situation requirement.

🎤 Artists

Artists of renowned prestige.

Practical example: A major theatre production company in Spain hires a renowned opera singer from the United States to be the main figure for a season of performances. Thanks to her proven and recognised artistic prestige, the promoting company can hire her without the need to previously look for other singers in the Spanish internal labour market.

As you have been able to verify, although the national employment situation is the general rule, there are many exceptions. If you think one of them might apply to you, consult your employer.

⭐️ Traam can help you manage your immigration procedure, with guides and support from our legal team. Trust us to make managing your permit an easier and faster experience, ensuring there are no errors in your application. If you have any questions, you can contact us and we will do our best to help you.