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Working In Germany Law Of Residence Permit And Work Permit For Third-Country Citizens

by Gunther Mävers

Starting from 01.01.2005 the new law of immigration is effected in Germany.  The double permit procedure (residence permit and work permit) necessary for the admission of an employment of a foreign citizen has been replaced by a multistage procedure of the Authority of the Interior.  From now on, the work permit will be given together with the residence permit by the foreign authority for employment as soon as the administrative authority for employment has approved internally (the so-called "one-stop-government").  The recruitment stop of foreign labor valid till present has been replaced by a flexible regulation, as described below; special regulations apply for the citizens of the EU and EWR.

I.  Procedure

The authority of foreign affairs is alone responsible for the applicant, which on the other hand also reconciles with the Federal Employment Office.

It is recommended to apply personally at the German diplomatic agency - if necessary - in order to be able to provide explanations on the submitted documents, or to find our which documents are possibly needed.  The following documents should be regularly submitted for insertion in the files:

  • Curriculum Vitae
  • Copy of the identification card / passport
  • Document of apprenticeship
  • Document of profession
  • Information on the announced employment, especially description of the job
  • Information on the spouse and children, if necessary
The decision on the approval to practice an employment is made by the Federal Employment Office, where the place of employment of the person concerned is located.  The place of employment is the place where the company's domicile is situated or where the head office of an employer is found.  Concerning employments at various work places, the company's domicile is the place where the corresponding payroll accounting of the employer is found.
The approval to practice an employment can be limited in regard to
  • the job-related occupation
  • the employer
  • the district of the Federal Employment Office
  • the situation and the allocation of the working hours

II.  Title of residency "for employment purposes"

The approval of foreign labor - according to Р В· 18 paragraph 1 AufenthG - is guided by the requirements of the German economic location, taking into consideration the circumstances of the labor market as well as the need to efficiently fight unemployment; however, the international contracts stay here untouched.  Basically, a foreigner can be given a title of residency to practice an employment, if the Federal Employment Office has approved or through a legal regulation, or if an international agreement is certain that the practicing of employment without the approval of the Federal Employment Office is acceptable.  According to Р В· 18 paragraph 5 AufenthG, another general condition is to present a definite offer for work.

It is to differentiate between foreigners living abroad and those already staying in the federal territory on the basis of getting a legal title of residency.

1.  Admission of foreigners living abroad

The approval into the labor market for foreigners living abroad is settled in the regulations of employment.

a)  Employments that do not need an approval

The admission of employment for a practical training or studying does not need an approval.
High-qualified people also do not need the approval of the Federal Employment Office.  The high qualified are those according to the legal definition of Р В· 19 paragraph 2 AufenthG especially for:

  1. Scientists with special theoretical knowledge
  2. Teachers or professors of high standards or scientific assistants as high-standard people or
  3. Specialists and executives with a special job experience, who earn a salary of at least double the income limit for the assessment of contributions of the social health insurance (therefore at present: 7.050,00 _).

Furthermore, executives/managers also do not need an approval according to Р В· 4 BeschV, defined as follows:

  • Executives with complete authorization or "prokura" (No. 1);
  • Members of the organ of a legal person, who are authorized to represent legally (No. 2);
  • Associates of a trading company or members of an another trading partnership (GmbH; KG; GmbH & Co. KG), as long as they have been appointed by law, rules or by a contract of a company, in order to represent the trading partnership or the business management (No. 3); or
  • Executives of a company also active outside Germany for an employment at the level of a board of directors, management and a management board or for an occupation in other leading positions that are of essential importance for the development of a company (No. 4). 

Certain activities of a commercial character can also be performed without an approval; this applies according to Р В· 6 BeschV for:

  • People who are employed abroad in a commercial division by an employer whose domicile is in the home country (No. 1) or
  • People who hold meetings or negotiations in the home country for an employer whose domicile is abroad, or who conclude contracts, or who purchase merchandise for exportation (No. 2)

For most of the groups of the pre-mentioned case, the legislator assumes that there are no detrimental implications to worry about concerning the special nature of the occupation, there are even "complementary employment effects to be expected.

We have to wait and see how some feature facts of the case will be interpreted while practicing the employment management.  From the experience gained from previous regulations of work permit, it is rather to expect a restrictive construction practicing the regulations.
It is to note that when the conditions of the following groups of the case are at hand before entering the country, it is recommended to contact the German foreign agency.  It is as well recommended to present the significant documents in the respective national language and also translated into German.

b)  Requirement for approval for non-qualified occupational groups

In certain groups of the case, the Federal Employment Office can approve on practicing an employment without possessing a qualified apprenticeship:
Season occupations, theatrical assistance, au-pair occupations, home help, domestic staff abroad, compare individually Р В· 18 ff. BeschV).

c)  Requirement for approval for qualified occupational groups

The previous so-called green-card regulation for IT specialists has expired since 31.12.2004.  Instead, Р В· 27 paragraph 1 No. 1 BeschV provides for professionals - who own a university degree or a higher education or similar qualifications - the approval for a title of residency to practice an employment which can be given, if by employing them, there exists a special public interest.  Another condition is that the foreigner is not to be employed under more disadvantageous conditions than those of a German employee.

The same applies for graduates, who own a university degree or a higher qualification, who are also given the approval for a title of residency to practice an employment, if by employing them because of their professional knowledge, there exists a public interest; compare Р В· 27 paragraph 1 No. 2 BeschV. 

Furthermore, under certain conditions, specialists can also be given the approval for a title of residency.  According to Р В· 28 BeschV, it applies for:

  • Executives and other people, who - by practicing their occupation - dispose above all of a special and specific corporate knowledge (specialists) of a company in the country for a qualified employment in this company (No. 1) or
  • Executives for an employment at a common company based on international agreements (No. 2)

Under certain conditions, an approval for a title of residency to practice an employment to up to 3 years is also considered within the scope of an international personnel exchange.  Compared to the previous regulation, the time limit for the employment residency of 2 years has been extended to 3 years, and the 3-year stoppage has been cancelled.  In such cases, examining the market of employment - as to the justification of BeschV - can be dispensed with, as in the scope of exchange by sending people to foreign companies or to corporate groups abroad, so that the German employment market is herewith relieved.  A renewed exchange should be approved of after an appropriate period of time of residency abroad.

Moreover, in reasonable cases, a residence permit for an employment can be given, if there exists a public, particularly a regional, economical or a labor-market political interest; compare Р В· 18 paragraph 4 clause 2 AufenthG.  According to previous experiences, it is to expect that the exceptional statement of facts will be used restrictively.

2. Admission of foreigners residing in the country to practice an employment

The admission to the employment market of foreigners already residing in the country is ordered in the regulation of the employment procedure.

a)  Employments with no approval

There is no need for an approval - i.e. in this case, an approval of the Federal Employment Office is not necessary - for the below-mentioned exemplary employments, as individually stated in Р В· 1 ff. BeschVerfF:

  • Practical training, which is imperatively essential and necessary for a scholar or a graduate education;
  • Occupation in science and research predominantly charitable and social occupations;
  • Participation in international sport activities

b)  Approval to practice an employment without testing priority
In certain cases, foreigners can be given the approval for a title of residency to practice an employment without testing the labor market:

  • Continuation of an employment contract (Р В· 6 BeschVerfV)
    According to the justification of BeschVerfV, this regulation serves the interest of the company to continue the employment contract of a new employee who has been introduced to his/her work.  After on year of an existing employment contract, it is appropriate - especially the priority of the preferred applicants and the protection of confidence of the concerned contract partners - to refrain from a new test of the labor market.
  • Regulation of a case of hardship (Р В· 7 BeschVerfV) With this regulation, the previous existing regulation of a case of hardship of Р В· 1 paragraph 2 clause 1 No. 1 work permit regulation - according to a recommendation of the committee of labor and social order of the German Bundestag - is taken as the concept of the immigration law.
  • Education and employment of young foreigners who have entered the country (Р В· 8 BeschVerfV) According to the justification in BeschVerfV, because of political integration reasons, young foreigners should be given an unlimited access to an education and employment.
  • Employment of a longer time of residence (Р В· 9 BeschVerfV) Finally, people who have been in a process of integration through several years of residency or employment in Germany have the right of an access to the labor market without priority testing.

c)  Admission of foreigners in the country to practice an employment

According to Р В· 60 a of AufenthG, tolerated foreigners can be allowed to practice an employment with the approval of the Federal Employment Office, if they have been living in Germany for a year legally or tolerated.  However, this regulation does not apply, if they have been getting benefits according to the law of Asylum or, if for reasons represented by them, actions to end their residency can not be taken.  A foreigner has to represent his reasons when he/she causes deportation obstacles by falsifying his/her identity or his/her nationality or by giving false information.

III.  Summary

Also the new immigration law is a downright complicated matter.  In order to guarantee getting a legal title of residency to practice an occupation easily and efficiently, a secured knowledge of the appropriated regulations is needed as well as of the proceedings of the corresponding authorities; a constant, personal contact with the authorities is indispensable.  Especially in an urgency of a normal case, it is recommended to urgently seek professional support, in order to avoid unnecessary delays.

Regulations of Law

  • Law for residency, occupation and integration of foreigners in the federal region of 30.07.2004, BGBI. 2004 I, 1950ff. (so-called residency law)
  • Regulation for the permission of newly entering foreigners to practice an employment of 22.11.2004 (Employment regulation)
  • Regulation on the procedure and the admission of foreigners living in the country to practice an employment of 22.11.2004 (employment procedure regulation)

About The Author

Gunther Mävers is associate in the Mütze Korsch Rechtsanwaltsgesellschaft mbH Law Firm and mainly concerned with individual and collective labour law including related corporate law matters. His work focuses on advising internationally operating companies in questions on cross border issues. He also has great experience in immigration law, particularly visa and work permits.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.