The ongoing shortage of skilled workers is also a real problem for many startups. Particularly the market for programmers, IT developers, online marketing professionals and other occupational groups that digital companies urgently depend on is practically empty. Often, the only way is to look beyond national borders. While this is relatively straightforward within the EU, it quickly becomes complicated for workers from third countries. Steffen Pollmer, a specialist in foreigners’ law at the IHK for Munich and Upper Bavaria, provides an overview of the current legal situation regarding the employment of international skilled workers.
Third-country nationals, i.e., persons who are not nationals of an EU member state or the EFTA states Iceland, Liechtenstein, Norway, and Switzerland, generally require a residence title to be allowed to work in Germany. Mr. Pollmer, what options are available for obtaining a residence title?
Third-country nationals require an appropriate residence title to reside in the country for the purpose of pursuing an economic activity (employment or self-employment). Depending on the purpose, this can be granted as a residence permit, Blue Card EU, ICT card, mobile ICT card, permanent settlement permit, or EU long-term residence permit.
For entry into the federal territory, a national visa for long-term stays is generally also required. This must be applied for at the responsible German foreign mission in the country of origin and has a validity period of a maximum of one year. In its requirements, it corresponds – depending on the purpose of stay – to the residence titles mentioned above (residence permit, Blue Card EU, permanent settlement permit, EU long-term residence permit). Before the visa’s validity period expires, the appropriate residence title must be obtained from the responsible immigration authority after entry.
Nationals of certain countries (e.g., Australia, Japan, Israel, and the USA) are, however, privileged and do not require a visa even for longer-term stays and can obtain the required residence title for economic activity after entry into the federal territory.
The permanent settlement permit and the EU long-term residence permit are unlimited residence titles and generally require the fulfillment of certain waiting periods, so that upon first entry, only the issuance of a time-limited residence title typically comes into consideration.
The residence permit is a time-limited residence title that is issued for specific purposes of stay regulated by law. Employment can be such a purpose of stay. Special regulations for employment are also provided by the Blue Card EU and – since August 1, 2017 – the ICT card and the mobile ICT card. The Blue Card EU is a time-limited residence title for highly qualified employees with a university degree within the meaning of the highly qualified persons directive, and the ICT card and mobile ICT card contain special regulations for the posting of certain employees in internationally active companies.
What conditions must be met for the application?
Whether the applicant gains access to the domestic labor market is determined by the provisions of the law on the residence, economic activity, and integration of foreigners in the federal territory – in short the Residence Act (AufenthG) and the regulations of the Ordinance on the Employment of Foreigners – in short: Employment Ordinance (BeschV).
The issuance of a residence title for taking up employment generally requires approval from the Federal Employment Agency. This approval is given to the responsible immigration authority in an internal agency procedure.
Approval requires that a legal provision grants access to the labor market and that the labor market-related conditions for the potential employee are met. First, there must be a concrete job offer. Preferred employees must not be available on the labor market (priority check). And finally, foreign employees must not be employed under less favorable working conditions than comparable domestic or otherwise preferred employees.
The Employment Ordinance contains detailed provisions on this and regulates, among other things, which activities the approval can be issued for or in which cases approval is unnecessary or limited (e.g., to checking working conditions). For certain activities – particularly when it comes to qualified work – the requirement for approval from the Federal Employment Agency is eliminated entirely.
Pre-approval procedure can accelerate the process
At the Federal Employment Agency, the Central Foreign and Specialist Placement Service (ZAV) is responsible as a special department for the approval procedure and the priority and working conditions check.
If employers want to fill a position with a non-EU citizen and accelerate the process of obtaining a work permit, they can use the pre-approval procedure (§ 36 para. 3 BeschV). In doing so, they can have the employment agency check whether the conditions for issuing a work permit are met for the job in question, even before the person selected for the position applies for a visa at all. There is a special form available for this purpose that can be obtained directly from the Federal Employment Agency. With the pre-check, employers can also (independently of a specific applicant) check whether a work permit could generally be issued to non-EU citizens for the position, or whether they should limit themselves to persons who already have labor market access during the selection process.
Where can I find more information if I want to hire international skilled workers?
Comprehensive information on qualified employment of foreign skilled workers in Germany is available on the internet portals “Make it in Germany” and “EURES” (European Employment Services). There you will also find more detailed information on the recognition of qualifications, employment opportunities, or registration for social insurance.
In addition, the Munich Chamber of Industry and Commerce provides a comprehensive overview of the topic of securing skilled workers through foreign skilled workers and also advocates politically for a simplification of the procedures.