Easier labour migration to Germany for non-EU citizens after revision of Residence Act

08 November 2012

Roland Falder, Dr. Ximeng Wang

German companies will now find it easier to locate their highly-skilled foreign employees from Asia and other non-EU countries to work in Germany. On August 1 2012 substantial changes in the German Residence Act that will put into practice the EU’s Directive for Highly Skilled Migrants have come into effect. Highly qualified foreigners from non-EU countries (so-called the third-country nationals) can now obtain settlement permits under facilitated prerequisites. This amendment benefits especially scientists with extraordinary technical knowledges and teaching staff as well as research associates in outstanding positions.

EU Blue Card

The EU Blue Card is a valid residence permit which third-country nationals with a university degree or comparable qualifications can obtain in order to pursue an employment suitable to their qualification. This permit is restricted to a maximum period of four years when first issued. The prerequisite for a residence permit is an employment contract with a minimum annual salary of two thirds of the annual income threshold (Beitragsbemessungsgrenze) of the general German Federal Pension Scheme (in 2012: 44,800 EUR). The salary limit for professions urgently needed in Germany (natural scientists, mathematicians, engineers, doctors and IT- professionals) has been reduced to 52 percent of the income threshold (in 2012:34,944 EUR), as long as comparable national employees do not receive a higher salary.

The previous priority check which aimed to find out whether a suitable German or EU employee could be hired, will no longer be carried out. Nationals from Australia, New Zealand, Israel, USA, Canada, Japan and South Korea will receive preferential treatment and will even be allowed to enter Germany without prior applications in their home countries.

An EU Blue Card holder, who has been carrying out suitable qualified work for a minimum of 33 months thus paying compulsory contributions into the German Federal Pension Scheme or comparable contributions during this period, can obtain an unlimited residence permit. Provided the foreigner obtains language knowledge of German at level B 1 (sufficient German language skills), a residence permit can already be issued after 21 months.

Family members (spouse or minor single children) of an EU Blue Card holder will be granted a residence permit if they fulfill further general prerequisites. No proof of language knowledge of German is required from accompanying or subsequently arriving spouses. The spouse of an EU Blue Card holder will immediately be granted unlimited access to gainful employment.

Facilitation of Residence Permit for self-employed persons

Based on the new German Residence Act, a foreign entrepreneur can already obtain a residence permit to carry out self-employed work if an economic interest (before: subordinate economic interest”) or a regional need (before: “special regional need”) exists, his/her work could have a positive impact on the economy and the funding for realization of his/her work is asset-backed (cf. § 21 section 1 point 1 German Residence Act).
When self-employed persons have been successful with their work thus having secured their livelihood, they are eligible to obtain a residence permit (§ 21 section 3 German Residence Act).

Further forms of labour migration

According to the Exceptional Regulations Regarding the Issuance of Work Permits to Newly Arriving Foreign Employees (Recruitment Stop Exceptional Regulation, dt. Anwerbestoppausnahmeverordnung, „ASAV“) there are the following unchanged opportunities to obtain a work permit.

1. A work permit can be issued for the duration of one year to:

a. Foreigners who are employed abroad by a company with headquarter in Germany and who would be trained through a temporary position in Germany;

b. Professionals who are employed in a German-foreign joint venture based on an intergovernmental agreement and who would take part in initial training processes, vocational education and further training programs;

c. Foreigners who will be working in Germany to obtain their vocational qualifications on the basis of export delivery or license agreements or for the execution of such contracts;

2. A work permit can be issued for the duration of 18 months to:

a. Itinerant workers who would take part in vocational and linguistic advanced trainings based on an intergovernmental agreement.

b. Foreigners who are temporarily employed by a German business partner for the introduction into German business practices or working methods to the necessary extent within the framework of existing business relationships.

3. A work permit can be issued for the duration of two years to:

Professionals and executives who are temporarily employed by companies or associations with headquarters in Germany for individual vocational and educational trainings on the basis of intergovernmental agreements or agreements of associations or public bodies of the German economy. The work permit shall be issued to professionals only in particularly justified individual cases.

A work permit can be extended beyond the intended valid period if it’s provided in an intergovernmental agreement or if the longer duration for the vocational and educational training is determined by law or required in the individual case.

Service contracts

Foreigners who are employed on the basis of an intergovernmental agreement for the fulfillment of one or more service contracts may be granted a work permit within the framework of service contracts with the same employer for a maximum period of two years. If it is clear from the very beginning that the completion of the service contract will exceed the period of two years, the work permit may be issued for a maximum period of three years. Should the foreigner leave Germany and has the residence permit already expired or lapsed, a new work permit for an employment in Germany can only be granted if the duration between the departure and the new entry into Germany as a service contract worker is not shorter than the overall validity period of the prior residence permit. This period may not exceed two years; the period will be three months if the foreigner hasn’t been employed in Germany for more than nine months before his/her departure.

The German Federal Ministry of Labour and Social Affairs can limit the number of issuances of work permits through the Federal Employment Agency to employees in the construction industry under service contracts in relation to the blue-collar workers employed by domestic resident companies. It is important to ensure that small and medium-sized domestic-based companies are adequately taken into account.

To foreigners who are employed by companies having their headquarters outside Germany and operating on the basis of an intergovernmental agreement for service contract workers, and have been temporarily dispatched to Germany as leading employees or as administrative staff with company-specific skills to work at the offices or branch offices of the companies or have been temporarily dispatched to Germany for the implementation of revisions, the work permit may be issued for a total period up to four years.

Summary

The facilitated obtainment of a legitimate work qualifying residence permit is Germany’s reaction to the already existing and further increasing shortage of skilled professionals due to the demographic development. Provided the foreigner possesses existing or expandable German language skills, the attractive German labour market will therefore also be open to qualified non-EU foreigners.

Contact us

For more details or any inquiries, please contact:











  Dr. Ximeng Wang        
Tel: +49 089 3581 6000  
email: ximeng.wang@twobirds.com
Roland Falder        
Tel: +49 089 3581 6000    
email: roland.falder@twobirds.com

 

This item is part of the the Asia Employment Law Update for November 2012, read more articles related to this: