The Corporate Immigration Review: Germany

Introduction to the immigration framework

Unlike many other jurisdictions, Germany, for the time being, does not have a points-based system but a visa category-based system; for example, the grant of a residence permit for the purpose of employment (equal to what is called a work permit in other countries) is subject to meeting specific requirements of the visa category in question. Accordingly, applicants must check whether the conditions for the grant of the permit to the individual in question can be met. This includes both general conditions that are a prerequisite for the grant of each permit (e.g., sufficient health insurance), as well as specific conditions that are particular to each visa category (e.g., a localised employment contract for some work visa categories or a business case for the self-employment visa category).

At a glance, the following types of visa categories, inter alia, are available:

  1. business visitor visa;
  2. director, proxy and white-collar visa;
  3. academics visa;
  4. specialist visa;
  5. highly skilled visa;
  6. EU Blue Card;
  7. Van der Elst visa;
  8. short-term deployment visa;
  9. long-term deployment visa;
  10. 'any employment' visa;
  11. intra-company transfer visa and intra-corporate transferee visa; and
  12. self-employment visa.

In addition, unlike some other countries, there are no quotas available in Germany (except for migrants from the Western Balkan region, where a yearly quota of no more than 25,000 per year has recently been implemented, effective from 1 January 2021).2 Consequently, the number of visas that can be granted under each of the visa categories is unlimited as long as the labour authorities do not come to the conclusion that the position can be filled from the local job market in the case of visa categories with a labour market test requirement. Therefore, as a matter of principle, it makes no difference if one lodges the application at the beginning, during or at the end of the year (although the processing time is likely to be longer in the middle of the summer season or directly before Christmas).

i Legislation and policy

The key immigration law in Germany is the Residence Act, which regulates the granting of residence permits to foreigners. It entered into force on 1 January 2005 and contains provisions on the entry of foreigners into Germany and their residence in the country, various purposes for residence (e.g., residence for educational purposes, residence for the purpose of economic activity), as well as the termination of residence and asylum procedures. With respect to obtaining residence permits for the purpose of employment, further details are set out in the Employment Regulation.

Furthermore, the EU also has authority, to a certain extent, to create immigration laws that affect all Member States, while Member States retain rights to create other types of legislation and are, for instance, particularly entitled to set restrictions for the grant of work permits. According to Article 21 Treaty on the Functioning of the European Union (TFEU),3 any EU national is entitled to enter any Member State and to stay there at will. Furthermore, citizens of any EU Member State benefit from the free movement of workers, as granted by Article 45 TFEU,4 and do not need to file for a permit prior to engaging in employment.

Other important EU legislation includes:

  1. Regulation (EEC) No. 1612/68 of 15 October 1968, on freedom of movement for workers within the Community (OJ 1968 L 257/2);
  2. Council Regulation (EC) No. 2018/1806 of 14 November 2018, listing the countries whose nationals must be in possession of visas when crossing the external borders, and those whose nationals are exempt from that requirement (OJ 2018 L 303, 28.11);
  3. Directive 2008/115/EC of 16 December 2008, on common standards and procedures in Member States for returning illegally staying third-country nationals (OJ 2008 L 348/9);
  4. Council Directive 2009/50/EC of 25 May 2009 on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment (OJ 2009 L 155/17) (EU Blue Card Directive);
  5. Directive 2009/52/EC of 18 June 2009, providing for minimum standards on sanctions and measures against employers of illegally staying third-country nationals (OJ 2009 L 168/24); and
  6. Directive 2014/66/EU of 15 May 2014 on the conditions of entry and residence of third-country nationals in the framework of an intra-corporate transfer (OJ 2014 L 157/1) (ICT Directive).

Finally, the administration plays a major role, and this has recently become even more important as a result of the covid-19 pandemic. All governmental bodies concerned have published guidelines and instructions on how to apply the laws and regulations in question:

  1. the visa handbook of the Federal Foreign Office (May 2021) for embassies and consulates abroad;5
  2. the application instructions on the Skilled Workers Immigration Act (August 2021) of the Federal Ministry of the Interior for Construction and Home Affairs for foreigners offices; and
  3. the Application Instructions Residence Act and Employment Regulations (June 2021) of the Federal Ministry of Labour and Social Affairs (for labour authorities).6

The above all deal with many more details beyond the laws and regulations of which clients or counsel need to be aware.

ii The immigration authorities

The main immigration authorities concerned with applications for visas and work permits, respectively, are the German embassies or consulates abroad, the local foreigners offices in Germany, the local labour offices and the Centre for the Recruitment of Foreign and Expert Staff (ZAV).

Unless nationals of privileged states that benefit from the EU visa waiver programme are concerned, the visa is to be obtained before entering Germany. The responsible diplomatic representation abroad or the local foreigners office is solely responsible for the applicant, although it will liaise with the local labour offices through the ZAV.

Residence and work permits are granted in the form of a single permit, as a residence permit for the purpose of employment, which is granted by the foreigners office after the local labour office, through the ZAV, has given its consent to the grant, if required to do so. Therefore, unlike the previous proceeding, there is no need for the applicant to deal with two different authorities or to file two separate applications.

In practice, it is recommended to contact the competent authority directly to establish which documents will be requested for the category in question. Usually, the following documents should be submitted together with the application form:

  1. a curriculum vitae;
  2. a copy of the identification card or passport;
  3. two biometric photographs;
  4. professional credentials (e.g., copies of diplomas);
  5. information on the proposed employment, especially a job description;
  6. information on any spouse or children; and
  7. proof of sufficient health insurance coverage during the period of stay.

Depending on the category in question, additional documentation might be requested (such as an excerpt from the company registrar for managing directors or proxy holders, or a list of shareholders). In any case, documentary requirements for the visa category at hand should be checked with the relevant foreigners office.

Since 1 May 2011, the ZAV has been granted the power to give consent; it will nevertheless liaise with the local labour offices at the place of the intended employment and ask them to carry out a job market test if required. In practice, what was meant to facilitate proceedings actually sometimes complicates matters further, especially when no feedback is given by the authority officially in charge with regard to the status quo of the matter, or the reason for a decision on the information pending with the labour authorities. On the other hand, dealing with a centralised agency that has detailed and special knowledge is surely not a disadvantage, and goes a long way towards professionalising and expediting proceedings.

Consent may in principle be given for employment of up to four years.7

The approval to engage in employment can be limited with regard to the occupation, the employer, the district of the labour office and the location and distribution of working hours.

The process usually lasts between eight and 12 weeks once all documents have been submitted, but it can be shorter or even much longer, depending on how busy the authorities are in the city where the application is filed. In the case of a fast-track proceeding, the processing time can be as short as six weeks once the application has been filed completely (see below for details). If the local authorities are too busy (which is generally the case for big international cities such as Berlin, Frankfurt, Hamburg and Munich), those foreign nationals who are privileged to be able to file from within Germany might therefore prefer filing abroad.

The fee for a national visa (the residence permit applies for Germany only if a long-term residence of more than three months is intended; for example, for studies) in the form of a residence permit, EU Blue Card or ICT intra-corporate transfer card amounts to €100 (regardless of whether the visa covers a period of more or less than a year). In the case of filing for an extension, the fee amounts to €96 for a period of less than three months, €83 for a period of more than three months and €98 if the purpose of the stay changes.8 In the case of the grant of a provisional permit, an additional fee of €13 applies.9 All these administrative fees were lowered a couple of years ago.

iii Exemptions and favoured industries

Entry

For entry into Germany, the nationality of the foreigner seeking entry is decisive.

Citizens of the EU

EU nationals do not require a visa or the grant of a permit to enter Germany. This is applicable for all Member States of the EU, including those Member States that joined with effect from 1 May 2004,10 Bulgaria and Romania, which joined the EU on 1 January 2007, and Croatia, which joined the EU on 1 July 2013 and whose nationals have had complete access to the German job market since 1 July 2015. According to the provisions of Section 2 of Germany's EU Freedom of Movement Act, EU nationals neither require a visa for entering Germany nor a residence permit to remain in Germany. For a residence period of up to three months, a valid identity card or passport is sufficient and must be shown to the relevant authorities upon request. If the EU national is registered according to the provisions of the German Federal Act on Registration, the authorities will grant a certificate proving the existence of the right of free movement, if requested. The same applies for EU nationals' family members without EU nationality as long as they are in possession of a valid passport or any other admissible identification document, and if they are accompanying the EU national or following the latter to Germany. No fees will be charged for such nationals and their dependants.

EU citizens have the right of residence for longer than three months if they:

  1. are workers or self-employed persons or are seeking employment (for, in principle, no more than six months or longer if they can prove to be seriously looking for a position and to have prospects of success of finding a job);
  2. are not in employment or are students or trainees and have sufficient resources and comprehensive health insurance cover; or
  3. have the right of permanent residence (following legal residence of five years).

Family members, regardless of their citizenship, accompanying or joining an EU citizen who satisfies these conditions, also have the right of residence for more than three months.

The above did also still apply to nationals of the United Kingdom until 31 December 2020. Following very tough negotiations, EU and UK negotiators agreed, in December 2018, in the first phase of the exit negotiations concerning the rights of their nationals and then, in the withdrawal agreement,11 on a transitional arrangement until 31 December 2020 (which the UK government refers to as the 'implementation period'). This entered into force as a result of ratification by the United Kingdom and the EU and provided for the aforementioned rights of EU citizens to apply to UK citizens until 31 December 2020. The Withdrawal Agreement provided for a transitional period until 31 December 2020. In the meantime, the EU and the UK agreed upon the EU–UK trade and cooperation agreement12 setting out their relationship post-Brexit in further detail that cannot be covered here.

Other European Economic Area nationals and Swiss nationals

The above regulations also apply for citizens of the European Economic Area (EEA) and European Free Trade Association (EFTA) Member States (Iceland, Liechtenstein, Norway). As a result of Article 3 of the Switzerland–EU Freedom of Movement Act providing for visa-free entry, this also applies for Swiss nationals.

Privileged third-country nationals

In certain circumstances, nationals of certain third countries may also enter without a visa. This applies to citizens of states on the positive list of Council Regulation (EC) No. 539/2001. Such citizens are entitled to stay for a maximum of 90 days without being obliged to have previously obtained a visa. Since 1 January 2021, this also applies to UK citizens who therefore do not require a visa when travelling to the Schengen area for short stays of up to 90 days in any 180-day period for either touristic or business purposes (a work permit may nevertheless be required depending on national laws in each EU Member State: see below). This is, however, entirely conditional upon the UK also granting reciprocal and non-discriminatory visa-free travel for all EU Member States, in line with the principle of visa reciprocity.

According to national law, some of the nationals listed therein are even entitled to enter German territory without a visa for a residence period that exceeds 90 days; according to Section 41 of the Ordinance Governing Residence, this applies to Australia, Israel, Japan, Canada, South Korea, New Zealand, the United Kingdom (since 1 January 2021) and the United States. In the case of these nationals, an obligatory residence permit can be obtained after a visa-free entry into Germany but has to be requested within three months of entry. According to the instructions on how to apply the Ordinance Governing Residence, the admittance of South Korea has been established because of an obligation under international law following an exchange of letters; the other admittances are based on positive experiences with nationals from the respective states. If the application for the grant of a residence permit is filed in a timely fashion, according to Section 81(3), Sentence 1 Residence Act, the subsequent stay is deemed to have been granted until the foreigners office issues its final decision. Even for these privileged nationals, however, according to Section 4(3), Sentence 1 Residence Act, it is in principle not permissible to take up employment until the foreign national is in possession of a residence permit for the purpose of employment or unless the Employment Regulation stipulates that the short-term activities concerned do not qualify as dependent employment.

Moreover, nationals from Andorra, Brazil, El Salvador, Honduras, Monaco or San Marino also do not need to obtain a visa as long as they do not wish to engage in employment except for those activities where the Employment Regulation stipulates that the activities concerned do not qualify as dependent employment.

Other third-country nationals

To enter Germany, all other third-country nationals must have previously obtained authorisation; for example, a visa,13 a residence permit14 or permission for permanent residence.15 The German embassies or German representations in the third-country national's home country or in his or her place of residence must be contacted.

Finally, anyone taking residency in Germany shall register with the local registry office within two weeks of having taken residency as foreseen by the Federal Registration Act.

Favoured industries

In principle, the German immigration law system is no more favourable to any one industry than to others because the conditions for the grant of the visa category apply regardless of the industry in question. There are, however, some categories that apply specifically to certain industries or fields: for example, the academic research and development category,16 the category for teachers of languages and specialist cooks,17 and the healthcare category.18 Moreover, special conditions apply to international sports people,19 e-sports players and international traffic both on rivers and seas and in the air.20 Furthermore, facilitation is also made for applicants with an academic degree or similar qualification, IT experts and other experts,21 providing an incentive for certain industries as a matter of fact. Finally, further facilitation has recently been implemented with regard to material requirements and acceleration of the processing of applications from candidates in the healthcare sector, which are now so desperately needed all over the world.

International treaty obligations

i EU nationals

EU nationals not only enjoy freedom of movement as specified above, but also a freedom of movement for workers. Article 45 TFEU guarantees the freedom of movement for workers within the EU and forbids any different treatment of workers from Member States regarding employment, salary and other working conditions on the basis of nationality. It states employees' rights to:

  1. accept offers of employment;
  2. freely move within the territory of the Member States for this purpose;
  3. reside in a Member State for the purpose of employment in accordance with the provisions laid down by the law, regulation or administrative action governing the employment of nationals of that state; and
  4. remain in the territory of a Member State after having been employed in that state under conditions that have been stipulated by the European Commission in directives.

This is also reflected in Germany in the national provisions of the law on the general freedom of movement of Union citizens.22

ii Other EEA nationals and Swiss nationals

Citizens of EEA and EFTA Member States are also entitled to move freely as workers, just as the nationals of EU Member States. The citizens of these states may even take up employment and work in Germany without obtaining a residence permit in advance and need only be registered.

This also applies for Swiss nationals as a consequence of the agreement on free movement of persons entered into with the EU.23

The year in review

i Substantive law

Highly skilled migrants

From 1 March 2020, the Skilled Immigration Law Act came into effect, providing further facilitation for both the procedure and material requirements for highly skilled migrants, who may now benefit from a fast-track procedure and a further loosening of the material requirements to access a job offer if they hold a recognised degree (see below for details).

Low-skilled migrants

Further incentives allow lower-skilled migrants access to the German labour market under certain conditions. Now, with the changes to the Skilled Immigration Law Act having come into effect on 1 March 2020, the granting of a residence title for the purpose of employment as a skilled worker with academic training requires only that:

  1. there is a concrete job offer;
  2. the Federal Employment Agency has given its approval, if required;
  3. a professional licence has been issued or promised, insofar as this is necessary; and
  4. the equivalence of the qualification has been established to the extent that this is necessary.

It should also be possible to employ skilled workers with an academic education if there is a concrete job offer, without a priority check; since 1 March 2020, the employment of skilled workers with vocational (i.e., non-academic) training is no longer limited to bottleneck occupations. As in the case of skilled workers with vocational training, the only requirement is now that the qualification acquired enables them to pursue the employment envisaged. The Federal Employment Agency examines whether the skilled worker will perform an occupation to which his or her qualification applies within the framework of the approval.

Finally, there is now a possibility of issuing a residence permit for labour migration to skilled workers with pronounced practical occupational knowledge, even independently of a formal qualification as a skilled worker, if the Employment Regulation stipulates that the foreigner can be admitted to exercise this occupation. According to the revised provision of Section 6 Employment Regulation, this is intended for qualified employment in occupations in the field of information and communication technology, irrespective of qualification as a skilled worker, provided that:

  1. the foreign national has a comparable qualification attested by at least three years' professional experience acquired over the past seven years;
  2. the salary is at least 60 per cent of the annual income threshold in the general pension insurance scheme; and
  3. the foreigner has sufficient knowledge of the language.

While the minimum salary is fixed annually (€50,760 as at 1 January 2022) and is mandatory, proof of German language skills may not be required in justified individual cases.

Applicants with permission to reside

If their consent is required, the labour authorities carry out a labour market test by examining the following criteria: the impact of the employment on the labour market; whether priority applicants are available; and the working conditions. With regard to the last, particular attention is paid to ensure that the applicant benefits from the same working conditions as applicants from the local job market (e.g., with regard to salary and working hours). However, such a test is not necessary if the application is filed under the EU Blue Card visa category for shortage occupations (e.g., natural scientists, mathematicians, engineers, doctors or IT consultants earning at least €43,992). The same goes for applications filed under the vocational training visa category (Section 6 Employment Regulation) or the recognised occupation requiring formal training visa category (Section 8 Employment Regulation).

Furthermore, the Foreign Office can grant a residence permit for the purpose of employment without the consent of the labour authorities in the following cases:

  1. employment as an introductory trainee;
  2. employment in a state-recognised apprenticeship occupation;
  3. employment under the highly skilled category, the EU Blue Card category or the academic person category;
  4. employment under the director, executive and company specialist category;
  5. employment of a spouse, life partner, relative or first cousin by an employer living together with the applicant in a common household; and
  6. any employment after four years of having been duly employed in Germany with a residence permit, permission to reside or a temporary suspension of deportation status.

Moreover, consent with regard to employees that shall be employed by temp agencies shall only be given if the applicant resides in Germany for at least 15 months with a permission to reside. In that case, the priority review is limited to a check of the working conditions being based on the specific job, and with regard to the salary and working hours.

Applicants with a residence permit

Applicants granted a positive decision as a result of asylum proceedings, regardless of the type of protection (e.g., right of asylum, refugee protection, subsidiary protection), do in principle have the right to engage in any kind of employment, be it on a dependent or self-employed basis. However, in the case of a prohibition of deportation, the local foreigners office decides in the individual case whether a residence permit for the purpose of employment shall be granted. If this has been granted, it will be noted on the residence permit, as well as on any additional sheet issued.

Moreover, consent with regard to employees that shall be employed by temp agencies shall only be given if the applicant resides in Germany for at least 15 months with a residence permit. In that case, the priority review is limited to a check of the working conditions being based on the specific job, and with regard to the salary and the working hours.

Finally, the foreigners office may grant a residence permit for the purpose of employment to applicants from the Balkan states declared as safe countries of origin (e.g., Albania, Bosnia and Herzegovina, Kosovo, Macedonia, Montenegro and Serbia) with regard to any kind of employment, if the applicant – before entering Germany – duly filed an application with the German immigration authorities abroad in the country of origin. However, that privilege is limited in time (from 2016 until 31 December 2020) and shall not apply to applicants who have received benefits under the Seekers' Benefits Act within the past 24 months. The latter shall not apply to applicants who filed for asylum between 1 January 2015 and 24 October 2015 and were residing in Germany on 24 October 2015 with temporary suspension of deportation status and immediately left the country. The aforementioned stipulation is an incentive for those refugees that were in Germany at the time to leave and come back by following the proper process so that the authorities can check the application while the applicant stays abroad. Since 1 January 2021, a quota – no more than 25,000 consents to be granted per year – applies.

Intra-corporate transfer category

The intra-corporate transfer category is available for third-country nationals (non-EU, EEA or Switzerland) that are qualified managers, specialists or graduate trainees and shall be assigned from an entity outside the European Union to an entity in the same corporate group in Germany on a temporary basis for a period of more than 90 days. However, there is a requirement of having previously worked with the company assigning the employee for a period of at least six months. Moreover, the conditions of employment shall be on the same level as those that would have been offered to an applicant from the local (German) labour market, in particular with regard to the salary.

Holders of a residence title for the purpose of employment granted under the intra-company transfer category by another Member State are entitled to engage in employment in Germany for up to 90 days in any 180-day period once having complied with a notification requirement. In the case of longer stays, a national residence title for the purpose of employment in Germany is required and can be granted under the mobile intra-company transfer visa category.

The residence title for the purpose of employment under the intra-corporate transfer category can be granted for a period of up to three years (except for trainees, in which case it can be granted for up to one year), and in the case of consecutive assignments there is a cooling-off period of six months in between.

Mobile intra-corporate transfer visa category

The mobile intra-corporate transfer category is available for third-country nationals (non-EU, EEA or Swiss) that are in possession of a residence title for the purpose of employment under the intra-corporate transfer category issued by another Member State and shall be assigned by an entity outside the European Union to an entity in the same corporate group in Germany on a temporary basis for a period of more than 90 days.

Holders of a residence title for the purpose of employment granted under the intra-corporate transfer category by another Member State are entitled to engage in employment in Germany for up to 90 days in any 180-day period once they have complied with a notification requirement. In the case of longer stays, a national residence title for the purpose of employment in Germany is required and can be granted under the mobile intra-corporate transfer visa category.

Again, there is a requirement to have previously worked with the company assigning the employee for a period of at least six months, the conditions of employment (including, in particular, the salary) must be comparable to the local market and the permit may be granted for up to three years (except for trainees: up to one year) with a cooling-off period of six months in the case of consecutive assignments.

ii Procedural law

Electronic travel authorisation

Applicants are obliged to attend a meeting at the competent authority in person (together with any accompanying family members), as fingerprints and biometric photographs will be taken to issue an electronic residence permit (eAT). The conventional residence permit, residence card and permanent residence card and replacement ID in paper form have been replaced by the eAT, which is issued in credit card format.

Moreover, as stipulated by Section 36 Employment Regulation, if the labour authorities do not respond to the query within two weeks requesting additional information or stating that the employer has not given the information requested by the authorities either sufficiently or in timely fashion, consent shall be deemed to be given. Unfortunately, this does not seem to apply if the company files a pre-approval application. Moreover, the labour authorities shall check upfront if the conditions for consent are given, if the employer has provided the information requested and if the proceedings can be expedited. Finally, to expedite matters further, a pre-approval application has been implemented whereby it is possible for the sponsoring company to file an application upfront with the labour authorities to find out whether consent is needed and, if so, whether it will be granted.

Skilled Immigration Act

The provisions of the Skilled Immigration Act that entered into force on 1 March 2020 retain the tried and tested system. No points system has been introduced, but further openings in the labour market are targeted and incentives are provided to recruit skilled workers with an academic degree or vocational training.

Establishment of central foreigners offices

At least partial centralisation of the foreigners office function has been introduced in the revised Section 71, Paragraph 1 Residence Act. This Section now provides for the establishment by the German states of at least one central foreigners office, which shall, however, only be responsible for the visa procedure for work and training migration (and not for the subsequent procedure for the first issue of a residence permit for employment purposes). Unfortunately, bottlenecks will be largely unavoidable in practice, especially with regard to local immigration authorities, and this is regrettable. From the point of view of labour migration law practice, it would have been desirable to have a central foreigners office with the appropriate equipment to be (at least) internally responsible for the entire procedure in technical and personnel terms, as is currently the case with the Federal Employment Agency for any necessary consent to the granting of a residence permit to pursue gainful employment. Pursuant to Section 72, Paragraph 7 Residence Act, the immigration authorities may, in cases of doubt, involve the Federal Employment Agency in certain circumstances even if the Agency's approval is not required, and similar provision could have been made for the participation of a central foreigners office. Moreover, it remains to be seen whether and to what extent the states will establish such a central foreigners office.24 In this respect, according to initial announcements, not all German states seem to share the legislature's assessment that the creation of a central foreigners office should take place, or else they consider the previous authority structure to be adequate.

Fast-track procedure

Faster performance through more money: in many other countries there is the possibility of speeding up the procedure by paying an increased fee (fast-track procedure). The new provision of Section 81a Residence Act introduces a 'fast-track procedure for skilled workers' (but only for skilled workers) in response to considerable demand, in particular from industry. Pursuant to this Section, the foreigner submitting the application should be able to authorise the (future) employer to apply for a residence permit to pursue training or gainful employment within the framework of training and labour migration, and to apply for an accelerated procedure for skilled workers.25 In accordance with Section 81a, Paragraph 2 Residence Act, the foreigners office and the employer shall be able to conclude an agreement with the following content:

  1. contact details of the foreigner, the employer and the authority;
  2. authorisation of the employer by the foreigner;
  3. the employer's obligation to work towards compliance with the foreigner's obligation to cooperate;
  4. evidence to be provided;
  5. description of the processes, including participants and deadlines;
  6. the employer's obligation to cooperate; and
  7. consequences of non-compliance with the agreement.

Pursuant to Section 81a, Paragraph 3 Residence Act, the foreigners office (which is nonetheless ultimately responsible for the procedure) is to advise the employer on the procedure and the evidence to be submitted, and if necessary to initiate the examination for recognition of a degree, obtain any necessary approval from the Federal Employment Agency, inform the responsible diplomatic mission or consulate abroad of the imminent filing of a visa application and give its prior and immediate consent to the issue of a visa.

Finally, in accordance with Section 81a, Paragraph 5 Residence Act, the fast-track procedure also includes family reunification of the spouse and minor children of the skilled worker, provided that their visa applications are submitted at the same time.

According to the newly inserted provision of Section 31a of the Ordinance Governing Residence, for an application made under Section 81a Residence Act, under the fast-track procedure for skilled workers, the diplomatic mission or consular post abroad shall allocate a date for the submission of a visa application within three weeks of the submission of the preliminary agreement by the skilled worker and shall then issue a decision within three weeks of the submission of the complete visa application. Furthermore, the non-disclosure period – following which consent to employment is deemed to have been granted if the Federal Employment Agency has not informed the competent authority that the information submitted is insufficient for the decision on consent or that the employer has not provided the necessary information or has not provided it in good time – is shortened from two weeks to one week from the submission of the request for consent.26

The fee for the accelerated procedure for skilled workers is €41127 – approximately three times the normal procedural fees.

Employer sponsorship

i Work permits

Privileged third-country nationals

For the privileged third-country nationals listed in Section 41 of the Ordinance Governing Residence,28 a double privilege is applied.

They are not only entitled to enter and reside in Germany without a visa (as specified previously), but 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 Residence Act.29 From the 91st day until the final decision, a provisional permit permitting an extended stay may be granted, in which case an additional fee of €13 applies.30 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.

The second privilege is based on Section 26, Paragraph 1 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, the United Kingdom (since 1 January 2021) and the United States. This provision must be read as follows: for citizens of these states, the approval of the Federal Employment Agency 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 nationals

Proceedings

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 approval requirements), 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 apply, however, 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 Residence Act are fulfilled. Accordingly, the granting of a residence permit generally presupposes:

  1. that the foreigner's livelihood is secure;
  2. that the foreigner's identity is established and also his or her nationality if he or she is not entitled to return to another state;
  3. that no grounds for expulsion apply;
  4. 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
  5. that the passport obligation pursuant to Section 3 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) 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, although international agreements remain unaffected. The grant of a residence permit is subject to explicit requirements. Pursuant to Section 18(2) Residence Act, a residence permit for the purpose of employment may only be granted to foreigners if:

  1. there is a concrete job offer;
  2. the Federal Employment Agency has given its approval in accordance with Section 39 Residence Act;
  3. a professional licence has been issued or promised, insofar as this is necessary; and
  4. the equivalence of the qualification has been established to the extent that this is necessary.

It shall be possible to employ skilled workers with an academic education if there is a concrete job offer, without a priority check and bottleneck analysis taking place. As in the case of skilled workers with vocational training, the only requirement is that the qualification acquired enables the worker to pursue the employment envisaged. The Federal Employment Agency examines whether the skilled worker will perform an occupation to which his or her qualification applies within the framework of the approval.

In addition, the Employment Regulation and its requirements for applicable categories (governing the admittance of new foreigners entering Germany to take up employment) 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 Residence Act are fulfilled (numerus clausus). Consequently, a residence permit for taking up employment can be granted for the following categories:

  1. EU Blue Card:31 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 at least five years' professional experience, and that should earn a salary of at least two-thirds of the social security contribution ceiling for the statutory pension scheme,32 or 52 per cent of the ceiling for certain job categories in shortage occupations (e.g., natural scientists, mathematicians, engineers, doctors or IT consultants);33
  2. directors, executives and specialists:34 for example, executive staff with general power of attorney or power of procuration; members of an institution of a legal entity that is authorised to legally represent it; executive staff and other persons with particular and specific corporate knowledge (specialists) for a qualified employment with a German-based company; or executives for an employment with a German–foreign joint venture founded on the basis of international agreements, without the need to check their prioritisation;
  3. short-term deployments:35 for example, deployment of IT specialists for the implementation of sold software for up to three months during an overall period of 12 months;
  4. service delivery:36 deployment of an employee who is employed in an EU or EEA Member State to temporarily render services in another Member State;
  5. academics and applicants with a degree from a higher educational institution:37 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;
  6. international labour exchange:38 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 to check their prioritisation;
  7. employment of nationals of certain countries:39 for citizens of Andorra, Australia, Israel, Japan, Canada, Monaco, New Zealand, San Marino, the United Kingdom and the United States, the approval for the grant of a residence permit for taking up any employment may be given; and
  8. long-term deployments:40 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 four years (plus an additional three months 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 Agency, unless such approval is not required by law, by virtue of the Employment Regulation or by provision in an intergovernmental agreement. In particular, Section 39(1) Residence Act provides that a residence permit enabling the foreigner to take up employment may only be granted if approval is given by the Federal Employment Agency, unless otherwise provided by a statutory regulation. In addition, the Act 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) Residence Act may be granted by the Federal Employment Agency if:

  1. the candidate is not employed under less favourable working conditions than comparable domestic workers;
  2. the candidate will be employed as a skilled worker in an occupation to which his or her qualifications apply;
  3. the candidate will perform an occupation appropriate to his or her qualifications; and
  4. where the Employment Regulation provides for more detailed conditions relating to the pursuit of employment, these are met.

Consent shall be given without a check if neither German employees nor foreigners who are legally equivalent to them with regard to taking up employment, or other foreigners who are entitled to priority access to the labour market under the law of the European Union, are available for employment (a priority check), unless the Employment Regulation provides otherwise. The latter is the case, for instance, for the grant of a residence permit for the purpose of employment to a foreigner irrespective of a qualification as a skilled worker if this check is stipulated by the Employment Regulation or law.

Therefore, in the event of such a priority check, prior to consenting to the grant of the residence 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.

However, the labour authorities' approval is not required if taking up employment is permitted pursuant to the Residence Act,41 or a statutory regulation pursuant to Section 42 Residence Act provides that approval by the Federal Employment Agency is not required.42

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 four years,43 it is common practice to grant such consent for a period of one year only initially, 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 allocation of the working hours. This does not apply to non-sponsored visa categories allowing their holders to engage in 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 Residence Act, a foreigner will be granted the settlement permit provided that:

  1. the foreigner has held a residence permit for five years;
  2. the foreigner's livelihood is secure;
  3. the foreigner 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);
  4. 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;
  5. the foreigner is permitted to be in employment, insofar as he or she is in employment;
  6. the foreigner is in possession of the other permits that are required for the purpose of the permanent pursuit of his or her economic activity;
  7. the foreigner has an adequate knowledge of the German language;
  8. the foreigner possesses a basic knowledge of the legal and social system and the way of life in the federal territory; and
  9. the foreigner 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 March 2020, pursuant to Section 18c, Paragraph 1, Sentence 1 Residence Act, a skilled worker must be granted a settlement permit if the candidate:

  1. has held a residence title for four years in accordance with Section 18a (skilled worker with vocational training), Section 18b (skilled worker with academic training) or Section 18d (skilled worker in the field of research) Residence Act;
  2. holds a job that may be filled by the candidate in accordance with the requirements of the provisions of Section 18a, 18b or 18d Residence Act;
  3. has paid compulsory or voluntary contributions to the statutory pension insurance scheme for at least 48 months or proves that he or she is entitled to comparable benefits from an insurance or pension institution or from an insurance undertaking;
  4. has a satisfactory knowledge of the German language; and
  5. has secure means of subsistence, there are no opposing reasons of public safety or public order, a possible professional licence exists, basic knowledge of the legal and social order and the living conditions in the federal territory are given, and adequate living space is available.

Even holders of an EU Blue Card are to be granted a settlement permit if they have been employed for at least 33 months in accordance with Section 18b Paragraph 2 Residence Act and have paid compulsory or voluntary contributions to the statutory pension insurance scheme for that period, or if they can prove that they are entitled to comparable benefits from an insurance or pension institution or an insurance undertaking. In a deviation from the other requirements to be proven, it is sufficient if simple knowledge of the German language is available; furthermore, if sufficient knowledge of the German language is available, the period is shortened to 21 months.

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 because it facilitates changing employers. The application for a settlement permit must be lodged with the foreigners office responsible for the applicant's place of residence. According to Section 44 of the Ordinance Governing Residence, the administrative fee for the grant of a settlement permit is €113.

Investors, skilled migrants and entrepreneurs

i Investors and entrepreneurs

Unlike in many other countries, there is no investor category available in Germany that would enable a residence permit to be granted to the applicant under the sole condition of investing money; therefore, any investor or entrepreneur needs to meet the conditions for the self-employed visa category. According to Section 21 Residence Act, residence permits with regard to self-employment may only be granted if:

  1. there is an economic interest or a certain local requirement;
  2. the activity is expected to have positive effects on the economy; and
  3. the foreign national holds capital or is the beneficiary of a loan that is sufficient.

A foreigner may be granted a temporary residence permit for the purpose of self-employment if an economic interest or a regional need applies, the activity is expected to have positive effects on the economy and personal capital on the part of the foreigner or a loan undertaking is available to realise the business idea as required by Section 21(1) Residence Act. The following criteria apply to the assessment of the preconditions: the carrying capacity of the business idea, the entrepreneurial experience of the foreigner and the amount of the capital investment. To assess these criteria, the foreigners office regularly asks for an expert's statement at a competent authority (e.g., the local chamber of industry and commerce).

Furthermore, a residence permit for the purpose of self-employment may also be granted by the foreigners office according to Section 21(2) Residence Act if there are privileges because of bilateral conventions, as is the case for Japan and the United States.

Finally, according to Section 21(2a) Residence Act, a residence permit for the purpose of self-employment may also be granted to a foreigner with a degree from a German university or a comparable German educational institution without the aforementioned conditions being met. This also applies to holders of residence permits for research or scientific purposes44 if the envisaged activity is connected to the educational background.

The residence permit is limited to a maximum of three years. After three years, a settlement permit may be granted if the foreigner has successfully carried out the planned activity; the livelihood of the foreigner (and that of family members living with him or her in a family community and who the foreigner maintains) is secured by sufficient income; there are no opposing reasons of public safety or order, taking into account the severity or nature of violations of public safety or order or any threat presented by the foreigner; and taking into account the duration of the foreigner's previous stay and the existence of ties within the German territory.

The application for a highly skilled settlement permit must be lodged with the foreigners office responsible for the applicant's place of residence. According to Section 44 of the Ordinance Governing Residence, the administrative fee for the grant of a settlement permit to self-employed persons is €124.

ii Highly skilled migrants

When dealing with applications of highly qualified persons, the foreigners office does not require the consent of the labour authorities before granting the permit.45 Furthermore, such persons will also be given a permanent residence permit immediately, to facilitate planning and provide an incentive for establishment in Germany. This permit is not limited with regard to any specific employer or region; nor is it limited in time.

In comparison to many other countries, the definition of a highly skilled migrant in Germany is quite a narrow one. According to the legal definition of Section 18c(3) Residence Act, highly qualified persons include scientists with special theoretical knowledge, and teachers, professors or scientific assistants of high standard. As a matter of fact, these high standards and requirements can seldom be met.

As there is a special economic and social interest in staffing the top positions in the fields of business and science, the employment of highly qualified persons is possible without prior permission of the labour authorities; however, the requirements of the law concerning foreigners must be complied with. In particular, integration into the standard of living in Germany and living expenses must be assured without state subsidy. The foreigners office may ultimately grant a permanent residence permit but is not obliged to do so; in fact, the foreigner is only entitled to claim a decision without abuse of discretion.

The application for a highly skilled 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 highly skilled settlement permit is €147.

Outlook and conclusions

Due to political compromises, the Skilled Workers Immigration Act did not become the 'big deal' that many had hoped for. Nevertheless, it is a milestone in the creation of a modern labour migration law, as it moves further away from a defence-oriented system, at least in principle, and explicitly welcomes skilled workers in many respects, while providing for an accelerated and more modern procedure for a sub-sector. These changes have not dramatically altered the system, but they have significantly improved the possibilities for recruiting skilled workers from abroad compared to the previous legal situation. Nevertheless, the effects hoped for from this have so far hardly materialised as a result of the covid-19 pandemic, so that further developments remain to be seen.

More importantly, from a practitioner's standpoint, one would wish that the authorities involved – for example, the foreigners office and the labour office – would apply the laws and regulations more uniformly and with a focus on results instead of simply applying the strict wording of the laws and regulations or, even worse, merely replacing the wording by the instructions of the Ministries on how to apply the law. Even though such instructions do not have any binding legal effect, the authorities refuse to debate arguments that comply with the law but that, at least at first sight, seem to differ from the instructions. For instance, the consent of the labour office with regard to the grant of the residence permit to take up employment for academic persons, IT specialists and other specialists shall only be given if the employer is domiciled in Germany and concludes a local employment contract with the employee in Germany (whereas the law itself provides no such limitation). As a result, it is not clear whether the instructions seem to suggest that the consent may only be given if a local employment contract shall be concluded and, if so, what impact such a practice would have on temporary assignments to Germany. It does not look like the government is likely to change this or even clarify the instructions. Therefore, it is strongly recommended to contact the competent authorities and to check their interpretation of the laws and regulations on the category in question.

Footnotes

1 Gunther Mävers is a partner at michels.pmks Rechtsanwälte Partnerschaft mbB.

2 Section 26 Paragraph 2 Employment Regulation.

3 Ex Article 18 of the Treaty Establishing the European Community (TEC Treaty).

4 Ex Article 39 of the TEC Treaty.

7 Section 34(2) Employment Regulation.

8 Section 45 of the Ordinance Governing Residence.

9 Section 47(1)(8) of the Ordinance Governing Residence.

10 Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovenia and Slovakia.

11 Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (2019 C 384 I/01).

13 Section 6 Residence Act.

14 Section 9 Residence Act.

15 Section 9a Residence Act, and Section 4(1), Sentences 1 and 2 Residence Act.

16 Section 5 Employment Regulation.

17 Section 11 Employment Regulation.

18 Sections 2, 38 Employment Regulation.

19 Section 23 Employment Regulation.

20 Section 24 Employment Regulation.

21 Section 19, 19a Residence Act; Section 2 Employment Regulation.

22 The Act on the General Freedom of Movement for EU Citizens, Freedom of Movement Act/EU, https://www.gesetze-im-internet.de/englisch_freiz_gg_eu/index.html.

23 Article 4 of the Agreement on the Free Movement of Persons.

25 Section 81a, Paragraph 1 Residence Act.

26 Section 36, Paragraph 2, Sentence 2 Employment Regulation.

27 Section 47, Paragraph 1, No. 15 of the Ordinance Governing Residence.

28 Citizens of Australia, Canada, Israel, Japan, the Republic of Korea, New Zealand, the United Kingdom and the United States.

29 For example, the applicant's residence will be deemed permitted up to the time of the decision by the foreigners office.

30 Section 47(1)(8) of the Ordinance Governing Residence.

31 Section 18b Residence Act.

32 €56,600 as of 1 January 2022.

33 €43,992 as of 1 January 2022.

34 Section 3 Employment Regulation.

35 Section 19(1) Employment Regulation.

36 Section 21 Employment Regulation.

37 Section 18b(1) Residence Act.

38 Section 10 Employment Regulation.

39 Section 26(1) Employment Regulation.

40 Section 19(2) Employment Regulation.

41 See, for example, Section 4(2) Residence Act.

42 See, for example, Sections 2 to 16 Employment Regulation.

43 Section 34(2) Employment Regulation.

44 Sections 18 and 20 Residence Act.

45 Section 18c(3) Residence Act.

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