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Possibilities of Non-EU citizens to work in Germany

Below you will find information concerning the different types of visas available for non-EU citizens in Germany.

 

1                Application for visa

Before entering Germany, most employees from third-countries need a visa if they are not exempt from the visa obligation. A visa for Germany (National Visa) which is required for the initial entry into Germany can subsequently be changed in Germany to a residence permit and/or settlement permit.

Notice: Foreigners from the following countries may enter Germany without a visa and apply for issuance of a residence permit at the competent local Foreigners’ Registration Office within three months after their entry into Germany in order to take up employment:

  • Australia
  • Israel
  • Japan
  • Canada
  • South Korea
  • New Zealand
  • United States of America

Furthermore, according to Sec. 39 No. 7 Residence Ordinance, if third-country citizens already possess an EU Blue Card which was granted from another member state of the European Un-ion for at least 18 months and if he or she applies for a highly qualified employment in Germany, he or she is exempted from visa application before entry into Germany.

1.1            Application procedure

The application for a visa for the purpose of taking up employment in Germany must be submit-ted by the recruited employee to the German diplomatic mission (embassy or competent local consulate). The fees for all types of visas are EUR 100.00.

1.2            Competent authorities

During the application procedure for an EU Blue Card, a limited or permanent residence permit, the applicant has to contact the following administration offices:

  • German diplomatic mission (embassy/consulate-general) in the home country of the foreigner. The German diplomatic missions are competent for the application for visas for the purpose of taking up employment in Germany before entering Germany.
  • Local competent Foreigners’ Registration Office in Germany: The competent Foreigners’ Registration Office in this context is the authority domiciled in the foreigner’s future place of residence. If the foreigner’s future place of residence is still unknown, then the competent Foreigners’ Registration Office for the visa procedure will be the authority responsible for the district in which the office of the employer is located.

1.3            Necessary documents for German National Employment Visa

For the visa application the original document plus two copies have to be submitted (the necessary documents can differ from country to country, please check the information provided on the webpages of the relevant German diplomatic mission):

  • Valid passport with at least two empty pages (issued within the last 10 years and with at least 12 months validity after the date of Visa application).
  • Application form and declarations (declaration on true and complete information and if necessary declaration on health insurance) duly signed.
  • Annexure for Employment Visas.
  • Copy of the passport’s data page (A4 sized).
  • Employment contract with a company in Germany, or
  • Deputation order from employer confirming deputation, if applicable.
  • Personal cover letter explaining the exact purpose and duration of stay.
  • Curriculum vitae (CV).
  • Proof of qualification and experience certificates for future employment in Ger-many.
  • If applicable – Approval by the Federal Employment Agency or ID-Number of Approval.
  • 3 passport pictures according to biometric specifications, not older than 6 months.

1.4            Preliminary check applied by employer

According to Sec. 36 subsec. 3 Employment Ordinance, the employer has the option to speed up the application procedure for the application of a residence permit. In that case the employer can check in advance whether the conditions for approval by the ZAV are met.

For a preliminary check, following documents are necessary:

  • Detailed job description including working conditions1 and
  • Requirements in terms of the qualifications of candidates.
  • German employment contract, for comparison with the local working conditions.

Afterwards, if ZAV grants approval, the positive decision and all other relevant documents have to be sent to both, the German mission abroad and the local competent Foreigners’ Registration Office. Following this procedure, the applicant can save a lot of time as no delivery of the data between the German mission abroad and the Foreigners’ Registration Office through the Federal Office of Administration is necessary. If the employer sends the documents in parallel to the relevant administrations, he or she knows at an early stage, if vacancies in his or her company can be filled with foreign qualified professionals.

 

2                Procedure after entry into Germany

After arrival in Germany, the employee has to register with the Registry Office at his or her new place of residence.

Subsequently, the employee has to apply with the competent Foreigners’ Registration Office at his/her place of residence, for a limited residence permit or an EU Blue Card and/or in the case of highly qualified professionals, a permanent residence permit. If the foreigner’s future place of residence is still unknown, the competent Foreigners’ Registration Office for the application procedure will be the authority responsible for the district in which the company offices of the employer are located.

The new electronic residence permits include a chip, which safes biometric data of the foreigner, e.g. two fingerprints and a photo. The electronic residence permit will facilitate online communication with authorities and administrative offices for foreign nationals.

In the following part, the different preconditions and circumstances for the different types of resident permits are explained.

 

3                Most relevant types of residence permits

3.1            EU Blue Card

The EU Blue Card is the key residence permit for university graduates who are from countries outside the European Union, Switzerland or the European Economic Area and work in a skilled profession. The applicants require not only a university degree but also a concrete job offer with a certain minimum salary. Moreover in some cases the approval of the International Placement Service (Federal Employment Agency) is necessary.

The relevant provision regulating the EU Blue Card is Sec. 19a of the Residence Act.

3.1.1        University degree

This means they must either have graduated from a university in Germany or hold a recognised university degree or a university degree that is comparable with a degree obtained from a German university.

Foreigners have to check if their university degree is accepted as a comparable degree. The information whether their university degree is comparable with a German university degree is available in the database on the webpage of the “standing conference of the Ministers of Education and Cultural Affairs of the Länder in the Federal Republic of Germany” (see http://anabin.kmk.org/no_cache/filter/anerkennungs-und-beratungsstellen-in-deutschland.html). Due to a high number of verification requests, the verification of a foreigner’s university degree, which is not already listed in the database, takes a lot of time. In these cases it is recommended to apply for a statement of comparability for foreign higher education qualifications by the ZAB (Zentralstelle für ausländisches Bildungswesen) of the individual degree. During this procedure, it will be checked whether the individual degree in question is a recognized degree or if it is comparable with a German degree.

3.1.2        Concrete offer of employment

The issuance of an EU Blue Card to a respectively qualified foreign professional is subject to closing a German employment contract or a binding offer of employment with a specific mini-mum gross salary.

3.1.3        Minimum income

The minimum gross salary is aligned with the contribution assessment ceiling in the statutory pension insurance and therefore changes in line with any changes in the contribution assessment ceiling. The valid minimum gross salary depends on the planned occupation. According to Sec. 2 subsec. 1 Nr. 2 a) Employment Ordinance, the minimum income amounts 2/3 of the annual contribution assessment ceiling in the statutory pension insurance. For the year 2019 this amounts to EUR 53,600.00 (gross). In the case of shortage occupations, the reduced gross salary threshold is defined in Sec. 2 subsec. 2 Employment Ordinance. Accordingly, a salary amounting to at least the equivalent of 52% of the annual contribution assessment ceiling in the general pension insurance must be paid. For the year 2019 this amounts to EUR 41,808.00 (gross).

Shortage occupations are jobs listed in the categories 21, 221 and 25 of the International Standard Classification of Occupations (ISCO). Shortage occupations include: Natural scientists, Mathematicians, Engineers, Physicians, Academic IT and CT experts.

3.1.4        Approval of the ZAV

In general, approval of the International Placement Service (ZAV) as the competent authority of the Federal Employment Agency is required for an EU Blue Card, limited or permanent residence permit for the purpose of taking up employment.

Nevertheless for the EU Blue Card, in some cases, the approval of the ZAV is not necessary. The consent requirement does not apply if the applicant earns the (higher) minimum income according to Sec. 2 Employment Ordinance (see 1c). Accordingly, for shortage occupations, the approval is required[1].

The ZAV will determine, whether the agreed terms and conditions of the employment relation-ship correspond with those granted to comparable German employees. If ZAV has to be involved, the Foreigners’ Registration Office will correspond with the ZAV office competent for the employing company whether the employment will be approved. Approval of ZAV is subject to the following:

  • Access to the German labour market is warranted by a statutory provision;
  • There is a definite job offer/employment contract and salary thresholds are met;
  • The employment of foreigners does not result in any negative consequences for the labour market, in particular with regard to the employment structure, the regions and the branches of the economy, and
  • the working conditions granted to the foreign employee correspond to those granted to German employees. The review regarding the equality of working conditions will focus particularly on the level of the granted salary, but also on working hours and the number of holidays. The equality of working conditions is verified in particular on the basis of the submitted employment contract as well as the relevant job description;
  • Foreign qualified professional has obtained a degree
  • from a German university or from a recognized foreign university, or
  • from a foreign university comparable to a German university degree.

If the Federal Employment Agency does not notify the competent authority within two weeks after the request for consent that the transmitted information is insufficient for a decision regarding approval, or that the employer failed to provide the required data or did not provide them in time, the approval is considered as granted.

3.2            Residence permit for the purpose of taking up employment

According to Sec. 7 and Sec. 18 of the Residence Act, a foreigner is entitled to be granted a limited residence permit for the purpose of taking up employment. For the access of foreign employees to the German labour market, the requirements of the German economy in consideration of the labour market situation and the need to reduce unemployment effectively have to be taken into account.

In general, in this case an approval of the Federal Employment Agency is required according to Sec. 39 Residence Act. As a part of the approval review, the Federal Employment Agency generally carries out the so-called priority check (“Vorrangprüfung”)[2]. The authority reviews whether there are any candidates available on the German labour market who are also suitable for the offered job. If this is the case the Federal Employment Agency does not grant approval.

However, in some cases a priority check may not be carried out. In this respect Sec. 4 Employment Ordinance requires that the applicant is a specialist in the meaning of the regulation. Specialists in that sense are people that have a special expertise which is significant for the services of the company. Therefore they need a high qualification with regard to specific tasks. Indications for a classification as a specialist are the professional career or the offered remuneration. The qualifications must be determined by certificates. Please note, that even if the priority check is omitted, approval of the Federal Employment Agency is still required.

3.3            ICT Card

In case a deputation, where the employee remains employed by the employer abroad, who also continues the payment of the salary, would also be in your interest, the ICT (Intra Company Transfer) Card is a possibly applicable residence permit. A local employment contract with the German employer would not be closed. The ICT Card was implemented on 1 January 2018.

A non-EU employee who should work as management personnel or as a specialist in the hosting branch office is issued with an ICT-Card if

  • he or she has been employed by the company or the group for at least 6 months
  • before the start of the intra-company transfer and continuously remains a member during the whole time of the transfer
  • the intra-company transfer lasts more than 90 days
  • the Federal Employment Agency has given its consent
  • he or she has an employment contract valid for the duration of the intra-company transfer and, if necessary, a written statement of deputation (required if the employment contract does not contain the possibility of a transfer)
  • he or she can prove the occupational skills

In addition, compensation and working conditions must be comparable to those of a local employee.

A trainee may be issued with an ICT-Card under the same conditions as management personnel or a specialist as well. However, the trainee does not have to prove any occupational skills.

3.4            Summary

To sum up, the easiest way to get a residence permit is for an applicant who has a university degree or is otherwise particularly qualified. Otherwise, the applicant has to hope that the priority review of the Federal Employment Agency will end in his favour.

 

4                General time frames and costs

4.1            Time frames

You can expect a time frame of about eight to twelve weeks to get the EU Blue Card or the residence permit. Of course, this can also take more or less time, depending on how busy the relevant authority is.

4.2            Costs

The administrative fee for national visas (i. e. for applicants from non-EU countries and non-privileged countries) to travel to Germany currently amounts to EUR 100.00. In addition, the fee for the EU Blue Card or the residence permit for the purpose of taking up employment has to be paid. This amounts to EUR 140.00, according to Sec. 45 Residence Act. Additional costs for translations, passport photos etc. might arise.

 

5                Privileged countries

According to Sec. 26 subsec. 1 Employment Ordinance the Federal Employment Agency can grant approval to nationals of Andorra, Australia, Israel, Japan, Canada, the Republic of Korea, Monaco, New Zealand, San Marino and the United States of America to pursue any employment, irrespective of the employer’s registered seat in Germany.

Moreover according to Sec. 26 subsec. 2 Employment Ordinance the Federal Employment Agency can grant approval to nationals of Albania, Bosnia and Herzegovina, Kosovo, Macedonia, Montenegro and Serbia to pursue any employment between 2016 and 2020. In these cases of non-EU countries, therefore, no qualified vocational training is required. However, a priority check is also carried out for these countries.

 

6                Spouse and children

The spouse and children of the applicant can apply for a dependent visa. Such visa gives the spouse the permit to live and also to take up an occupation for the period of the assignment.

 

If you have any further questions, please do not hesitate to contact us.

Dr. Viktoria Winstel
Counsel
T +49 221 5108 4156
Email

[1] At the moment, approval from the ZAV is not required if the employee has a local university degree in shortage occupations and earns EUR 41,808.00 gross p.a. However, a current draft bill by the Federal Ministry of the Interior, for Building and Home Affairs stipulates that approval should be required again from 2020 in these cases.

[2] Currently there is a draft bill by the Federal Ministry of the Interior, for Building and Home Affairs, according to which the priority check is to be waived from 2020.