Employer sponsorshipi Work permitsPrivileged third-country nationals
For the privileged third-country nationals listed in Section 41 of the Ordinance Governing Residence, a double privilege is applied.
They are not only entitled to enter and reside in Germany without a visa (as specified previously), but do also have the privilege to apply for the grant of a residence permit for the purpose of employment after having entered Germany without a visa. In this respect – as previously mentioned – the application must be filed no later than 90 days after entry into Germany; otherwise, the applicant will not benefit from the standardised provisional effect as laid down in Section 81(3), Sentence 1 of the Residence Act. From the 91st day until the final decision, a provisional permit permitting an extended stay may be granted. In such a case, an additional fee of €13 applies. However, engaging in employment will generally not be allowed before the grant of the final permit. Moreover, leaving the country during this period might result in a discussion (with either the border control when re-entering or the foreigners office before the grant of the permit) regarding whether the re-entry is legal. Whereas most of the commentaries available and the instructions on how to apply the law published by the Labour Office do not deal explicitly with this question, and neither favour nor disfavour it, the extended stay is likely to come to an end if the individual leaves the country and – accordingly – re-entry is then forbidden unless the reference period for the 90 days (of six months) is open again. This is also reflected in the instructions on how to apply the law that are published by the Ministry of Internal Affairs and applied by the foreigners offices. Against this background, such a permit should be applied for well ahead of time; however, once the reference period of 90 days (within any 180-day period) has expired, a visa-free entry would be possible again.
The second privilege is based on Section 26, Paragraph 1 of the Employment Regulation, which stipulates that a residence permit for taking up employment can be granted to citizens of Andorra, Australia, Canada, Israel, Japan, Monaco, New Zealand, San Marino and the United States. This provision must be read as follows: for citizens of these states the approval of the Federal Employment Office can be granted for all kinds of employment, irrespective of whether a category usually applicable to third-country nationals can be applied. Nevertheless, the requirements for obtaining a residence permit for the purpose of employment, which are explained below, must be fulfilled. Moreover, the grant of a residence permit for the purpose of employment is possible regardless of whether the company sponsoring the application has entered into a localised employment relationship with the employee (on behalf of a company duly established or branched in Germany) or if the individual has been assigned to Germany by a company established abroad.Other third-country nationalsProceeding
Other third-country nationals must file an application for the grant of a residence permit for the purpose of employment with a German embassy or representation abroad that is located in their home country or state of residence before entering Germany; the application is then forwarded to the responsible local foreigners office in Germany. Provided that the approval of the labour office is required, the foreigners office will then start an internal proceeding with the labour office through the ZAV. After having received the approval – see below for the requirements for approval – the file will be sent back electronically; in the case of a positive decision, the residence permit for the purpose of employment will be granted to the applicant by the German embassy or representation abroad before they travel to Germany. Moreover, since 5 March 2013, there has been no need for the embassy or general consulate to seek consent from the local foreigners office in the case of an application with regard to a residence permit for the purpose of (dependent) employment – in that case the file will be directly transferred to the local labour authorities via the Federal Administration Office, and returned once the decision has been taken. The latter does not, however, apply if the applicant has previously been staying in Germany or is entitled to enter Germany visa-free and file the application in Germany (this, however, only applies to nationals from certain countries, including the United States and Australia).General conditions of granting
The grant of a residence permit for taking up employment will only be possible if the general preconditions stipulated in Section 5 of the Residence Act are fulfilled. Accordingly, the granting of a residence permit generally presupposes:
- that the foreigner's livelihood is secure;
- that the foreigner's identity is established, and also their nationality, if they are not entitled to return to another state;
- that no grounds for expulsion apply;
- insofar as the foreigner has no entitlement to a residence permit, that the foreigner's residence does not compromise or jeopardise interests for any other reason; and
- that the passport obligation pursuant to Section 3 of the Residence Act is met.
Furthermore, the granting of a residence permit, a settlement permit or an EU long-term residence permit presupposes that the foreigner has entered the country with the necessary visa and has already furnished the key information required for granting of the title in his or her visa application. These requirements may be waived, however, if the prerequisites qualifying a foreigner for the granting of a residence permit are met, or if special circumstances of the case render a subsequent visa application procedure unreasonable.Residence permit for the purpose of employment
Under Section 18(1) of the Residence Act, the admittance of foreign employees depends on the requirements of the industrial location in Germany and must be made in consideration of the labour market situation and the need to combat unemployment, whereas international agreements remain unaffected. The grant is subject to explicit requirements. Pursuant to Section 18(2) of the Residence Act, a residence permit for the purpose of employment may only be granted to foreigners if the Federal Employment Office has given its approval according to Section 39 of the Residence Act or if it is determined, according to Section 42 of the Residence Act or by an international agreement, that employment is permitted without the need to obtain approval from the Federal Employment Office. In addition, Section 18(5) of the Residence Act provides that such residence permits may only be granted if a concrete job offer has been made.
The regulation on the admittance of new foreigners entering Germany for taking up employment (the Employment Regulation) must be observed. This means that the labour market is basically not accessible for other third-country nationals unless the requirements of the criteria defined in the Residence Act or statutory regulations established as a result of the Residence Act are fulfilled (numerus clausus). Consequently, a residence permit for taking up employment can be granted for the following categories:
- EU Blue Card – for applicants holding a German university degree or a foreign university degree that is recognised in Germany or comparable to a German university degree, or that have a comparable qualification that is proven by professional experience of at least five years, and that should earn a salary of at least two-thirds of the social security contribution ceiling for the statutory pension scheme, or 52 per cent of said ceiling for certain job categories in shortage occupations (e.g., natural scientists, mathematicians, engineers, doctors or IT consultants;
- executives – for example, executive staff with general power of attorney or power of procuration; members of an institution of a legal entity who are authorised to legally represent it;
- short-term deployments – for example, deployment of IT specialists for the implementation of sold software for up to three months during an overall period of 12 months;
- service delivery – deployment of an employee who is employed in a EU or EEA Member State to temporarily render services in another Member State;
- academics and applicants with a degree from a higher educational institution – for taking up employment that suits the professional qualification for specialists with a recognised German graduate degree or a foreign graduate degree that is comparable to a German degree; specialists with a German graduate degree or graduates from German schools abroad with a recognised degree or a degree that is comparable to a German degree; or a professional training qualification that has been acquired in Germany in a job requiring formal training that is state-approved or comparably regulated;
- executive staff and specialists – for executive staff and other persons who have particular and specific corporate knowledge (specialists) for a company that is based in Germany for a qualified employment with this company, or executives for an employment in a German-foreign joint venture that was founded on the basis of international agreements, without the need for checking prioritisation;
- international labour exchange – for qualified specialists with a university or college degree or comparable qualification within the framework of labour exchange in an international company or company group for a period of up to three years without the need for checking prioritisation;
- employment of nationals of certain countries – for citizens of Andorra, Australia, Israel, Japan, Canada, Monaco, New Zealand, San Marino and the United States, the approval for the grant of a residence permit for taking up any employment may be given; and
- long-term deployments – for example, deployment of staff for a period of up to three years to set up an industrial plant.
The residence permit for the purpose of employment may generally be granted for a period of three years (four years for the EU Blue card), but in the first instance is often only granted for one year to ensure that the general conditions of granting as previously specified and the approval requirements stipulated by the labour office are still fulfilled.ii Labour market regulation
Generally, a residence permit for the purpose of employment is subject to the approval of the Federal Employment Office. Section 39(1) of the Residence Act provides that a residence permit enabling the foreigner to take up employment may only be granted if the approval is given by the Federal Employment Office, unless otherwise provided by a statutory regulation. In addition thereto, it provides that approval can only be given if the regulation is part of international agreements, legal provisions or statutory regulations.
Unless otherwise provided by a statutory regulation, the approval of the grant of a residence permit for the purpose of employment pursuant to Sections 18 and 39(2), Sentence 1 of the Residence Act may be granted by the Federal Employment Office if:
- the employment of foreigners does not result in any adverse consequences for the labour market, in particular with regard to the employment structure, the regions and the branches of the economy; and no German workers, foreigners who possess the same legal status as German workers with regard to the right to take up employment, or other foreigners who are entitled to preferential access to the labour market under the law of the EU, are available for the type of employment concerned; or
- it has been established, via investigations for individual occupational groups or for individual industries in accordance with Sentence 1, No. 1, Letters (a) and (b), that filling the vacancies with foreign applicants is justifiable in terms of labour market policy and integration aspects.
Another condition for the grant of the permit (that applies to both of the aforementioned case groups) is that the foreigner is not employed on terms less favourable than those that apply to comparable German workers, in particular with regard to salary.
Therefore, prior to consenting to the grant of the permit, the labour authorities must check the consequences of the employment for the local labour market, carry out a job market test and compare the conditions of employment offered. In practice, a job description form as provided by the labour authorities together with a draft employment or assignment contract must be filed with the application.
No approval of the labour authorities is required for taking up employment, however, if taking up employment is permitted pursuant to the Residence Act, or a statutory regulation according to Section 42 of the Residence Act provides that approval by the Federal Employment Office will not be required. It is worth noting, however, that in most cases this is not the case, but rather as a general rule an approval for the grant of the permit by the labour authorities will be needed – see above for further details.iii Rights and duties of sponsored employees
In the case of employer sponsorship, the holder of a residence permit for the purpose of employment may only work for the employer that has sponsored the application. Moreover, as a matter of principle, any permit will be limited not only with regard to the employer and the activities that are permitted, but also with regard to time and the job location. Although consent may be given for an employment period of up to three years, or four years for the EU Blue Card, it is common practice to grant such consent at first for a period of one year only, regardless of the intended duration of the employment relationship. Furthermore, the approval to engage in employment can be limited with regard to the occupation, the employer, the district of the labour office, and the situation and the allocation of the working hours. This does not apply to non-sponsored visa categories allowing their holders to engage into employment regardless of the employer and location (e.g., the highly skilled visa category; see Section V).
The same applies for the settlement permit. The settlement permit allows the holder to take up employment and may only be supplemented with a subsidiary provision in those cases that are expressly permitted by law. According to Section 9 of the German Residence Act, a foreigner will be granted the settlement permit provided that:
- he or she has held a residence permit for five years;
- his or her livelihood is secure;
- he or she has paid compulsory or voluntary contributions into the statutory pension scheme for at least 60 months, or furnishes evidence of an entitlement to comparable benefits from an insurance or pension scheme or from an insurance company (time off for the purposes of childcare or nursing at home must be duly taken into account);
- the granting of the residence permit is not precluded by reason of public safety or policy, giving full consideration to the severity or the nature of the breach of public safety or policy or the danger emanating from the foreigner, with due regard to the duration of the foreigner's stay to date and the existence of ties in the federal territory;
- he or she is permitted to be in employment, insofar as he or she is in employment;
- he or she is in possession of the other permits that are required for the purpose of the permanent pursuit of his or her economic activity;
- he or she has an adequate knowledge of the German language;
- he or she possesses a basic knowledge of the legal and social system and the way of life in the federal territory; and
- he or she possesses sufficient living space for himself or herself and the members of his or her family forming part of his or her household.
Since 1 August 2012, there have also been facilitations with regard to the grant of a settlement permit to holders of a German degree. According to Section 18b of the German Residence Act, a settlement permit will be granted to a foreigner with a German university degree or a German degree from a comparable institution if the applicant:
- is in possession of a residence permit for the purpose of employment;
- is adequately employed, given his or her academic background;
- has contributed to the German pension scheme for at least 24 months; and
- if the other general conditions for the grant of a settlement permit are met.
Employees meeting the conditions for the grant of a settlement permit may remain in the country indefinitely and apply for a permanent status. Unlike a residence permit for the purpose of employment, the settlement permit can be granted by the foreigners office without having to request the consent of the labour office, and it is not limited either in time or with regard to the activity or the employer. Whereas the latter is of course an advantage for the holder of the permit, it may be disadvantageous for the employer, since it facilitates changing employers. The application for a settlement permit must be lodged with the foreigners office responsible for the applicant's place or residence. According to Section 44 of the Ordinance Governing Residence, the administrative fee for the grant of a settlement permit is €113; this fee was recently lowered significantly.