The ongoing shortage of skilled workers is also a real problem for many startups. The market for programmers, IT developers, online marketing professionals, and other professional groups, which digital companies in particular urgently depend on, is virtually empty. Often, the only way is to look beyond national borders. What is still relatively simple within the EU quickly becomes tricky when it comes to workers from third countries. Steffen Pollmer, specialist in immigration law at Chamber of Commerce and Industry for Munich and Upper Bavaria, provides an overview of the current legal situation regarding the employment of international specialists.
Third-country nationals, i.e., persons who are not citizens of a member state of the European Union or the EFTA states Iceland, Liechtenstein, Norway, or Switzerland, generally require a residence permit to work in Germany. Mr. Pollmer, what options are there for obtaining a residence permit?
Third-country nationals require an appropriate residence permit to stay in the country for the purpose of pursuing gainful activity (employment or self-employment). Depending on the purpose, this can be issued as a residence permit, EU Blue Card, ICT Card, Mobile ICT Card, settlement permit, or EU permanent residence permit.
In addition, a national visa for long-term stays is generally required for entry into Germany. This must be applied for at the responsible German diplomatic mission in the country of origin and is valid for a maximum of one year. Depending on the purpose of the stay, it corresponds to the residence permits mentioned above (residence permit, EU Blue Card, settlement permit, EU long-term residence permit). Before the visa expires, the corresponding residence permit must be obtained from the responsible immigration authority after entry.
However, nationals of certain countries (e.g. Australia, Japan, Israel and the USA) are privileged and do not require a visa even for longer stays and can obtain the necessary residence permit for employment after entering the federal territory.
The settlement permit and the EU long-term residence permit are permanent residence permits and generally require the fulfilment of certain qualifying periods, so that only a temporary residence permit can be granted upon first entry.
A residence permit is a temporary residence permit issued for specific purposes of residence regulated by law. Employment can be one such purpose of residence. Special regulations regarding employment also include the EU Blue Card and—since August 1, 2017—the ICT Card and Mobile ICT Card. The EU Blue Card is a temporary residence permit for highly qualified employees with a university degree within the meaning of the Highly Qualified Workers Directive, and the ICT Card and Mobile ICT Card contain special regulations for the posting of certain employees to internationally active companies.
What requirements must be met to apply?
Whether the applicant is granted access to the domestic labor market is determined by the provisions of the Act on the Residence, Employment and Integration of Foreigners in the Federal Territory – in short the Residence Act (AufenthG) and the provisions of the Ordinance on Employment on the Employment of Foreign Nationals – in short the Employment Ordinance (BeschV).
The granting of a residence permit for taking up employment usually requires the Approval of the Federal Employment Agency requiredThis consent to the competent immigration authority is given in an internal procedure.
Approval requires that a legal provision grants access to the labor market and that the potential employee meets the labor market-related requirements. First, there must be a concrete job offer. Prioritized workers must not be available to the labor market (priority check). Finally, foreign workers may not be employed under less favorable working conditions than comparable domestic or otherwise privileged workers.
The Employment Ordinance contains specific provisions on this matter and regulates in detail, among other things, which activities can be approved at all, and in which cases approval is unnecessary or limited (e.g., to the review of working conditions). For certain activities—particularly those involving skilled work—the requirement for approval by the Federal Employment Agency is waived entirely.
Pre-approval procedure can speed up procedures
At the Federal Employment Agency, the Central International and Specialist Placement Office (ZAV) is a special department responsible for the approval procedure and the priority and working condition assessment.
If employers want to fill a position with a non-EU citizen and expedite the process for obtaining a work permit, they can use the pre-approval procedure (Section 36 (3) of the Employment Ordinance). This allows them to have the employment agency check whether the requirements for obtaining a work permit are met for the position in question, even before the person selected for the position has even applied for a visa. There is a special form for this purpose, which can be obtained directly from the Federal Employment Agency. Employers can also use the pre-approval procedure to determine (independently of a specific applicant) whether a work permit could generally be issued to non-EU citizens for the position, or whether they would have to limit the selection process to individuals who already have access to the labor market.
Where can I find more information if I want to hire international professionals?
Comprehensive information on the qualified employment of foreign specialists in Germany can be found on the internet portals “Make it in Germanyand "EURES" (European Employment Services). There, for example, you can also find more detailed information on the recognition of qualifications, employment opportunities, or social security registration.
In addition, the Munich Chamber of Industry and Commerce offers a broad overview of the topic of securing skilled workers through foreign specialists and is also politically committed to simplifying the procedures.
