Employing non-Polish nationals without a work permit

The first article of this series discussing employment of non-Polish citizens presented key issues surrounding their legal stay in Poland (article “Legal stay should come before employment”, published in Polish in Rzeczpospolita on 18 February 2021). It is easier for EU / EEA nationals who can legally work in Poland without a work permit. The situation is more complex for non-EU/EEA nationals.

From the employer’s perspective, the key issue is the “availability” of a non-Polish employee, meaning the period from applying for a job to the actual commencement of employment. The three most commonly encountered situations are:

1) a non-Polish worker is in Poland and he/she is exempt from a work permit which makes him/her immediately available,
2) a non-Polish worker is in Poland, but cannot enter the job market and needs a document to enable him/her to commence work,
3) a non-Polish worker is not in Poland and has no access to the job market, thus he/she needs a document which will allow him/her to commence work and will serve as grounds to seek a Polish visa in a Polish diplomatic institution in his/her home country. The period from the time the employer makes the job offer available and commencing work is in this particular case is the longest.

Immediate employment

A Polish employer, considering the legal basis of employment of a non-Polish employee, should first verify if that person is exempt from the work permit requirement. This will avoid starting unnecessary administrative procedures.

The catalogue of circumstances which give non-EU/EEA employees the right to work in Poland lists primarily Article 87 of the Promotion of Employment and Employment Market Institutions Act of 21 April 2015 (the “Promotion Act”), and the Regulation of the Minister of Labour and Social Policy of 21 April 2015 on cases when performance of work in Poland by a non-Polish national is allowed without the need to obtain a work permit.

Employers will likely come across the following documents which release non-EU/EEA nationals from the obligation to have a work permit in Poland:

• permanent residence permit or a long-term EU residence permit decision,
• temporary residence permit granted for the purposes of marriage with a Polish national,
• temporary residence permit for connecting with family (Article 159(1) of the Non-Polish Citizens Act),
•  diploma or a certificate confirming completion of a full-time programme (including PhD programme) in a Polish higher education institution,
• current certificate confirming the status of the student of a full-time programme (including PhD course) in a Polish higher education institution,
• Karta Polaka (Polish Card)
• visa with annotation: “Poland. Business Harbour” issued to Belarussian citizens.

Please note: These documents do not include a residence card with annotation “access to the job market”, as such annotation can sometimes be misleading. It often specifies that a non-Polish national may perform work with only one (previous) employer (rather than any employer). In order to verify the rights of the non-Polish citizen, it is usually necessary to ask him/her to present the decision under which the residence card was issued.

The employer should collect relevant documentation confirming that the obligation to have a work permit does not apply to a given non-Polish employee. It is recommended that an internal policy be set up specifying the terms and conditions of verification of this right.

Example:

An international student of a full-time programme started working in Poland without a work permit, as he or she does need a work permit. However, it turned out that he/she is no longer a student, but the Polish employer was not informed about it. In this situation it seems reasonable for employers to verify, e.g. each semester, whether the non-Polish employee is still a student of a full-time programme. This can be done by requesting a certificate from the educational institution.

Procedure must come first

If a non-Polish employee is required to have a work permit, the Polish employer is the one to apply for such permit to a relevant province office. Work permits are issued solely at the request of interested employers which intend to employ a non-Polish employee (which is not the case in the residence permit procedure where a non-Polish citizen is a party to the procedure, even if it involves a consolidated temporary residence and work permit).

Article 88(1) of the Promotion Act lists situations that require a work permit. The most frequent situation is when a non-Polish employee works in Poland under an agreement with an entity whose registered office, residence, branch office, employment establishment or another form of organized business activity is also located in Poland. In this case a type A employment permit must be obtained, which is generally issued for three years.

Currently the proceedings to issue type A work permit take from two weeks to even several months. However, they often must be preceded with a so-called job market test, which additionally extends the process by even several weeks.

The job market test is a process in which county labour offices verify the local market in terms of any registered unemployed persons that could possibly be employed (in general, unemployed Poles and certain non-Polish persons enjoy the right of priority of employment), whose qualifications correspond to those specified in the job offer. If a suitable employee cannot be found, the labour office issues a document called information of the district governor – which confirms that personnel needs cannot be satisfied on a local market. In most cases the document is needed to file a complete application for a work permit.

The labour market test is not required when, i.a., the job which is to be performed by a non-Polish national is:

• included on the list of professions published by a relevant provincial governor supervising the principal place of work of the non-Polish employee,
• included on the list of professions which includes, i.a., some programmers listed in the annex to the Regulation of the Minister of Employment and Social Policy of 29 January 2009 specifying cases when a work permit for a non-Polish employee is issued irrespective of the detailed conditions of issuance of work permits for non-Polish citizens, or
• if a non-Polish citizen satisfies the requirements set out in Article 88c(3) and (8) of the Promotion Act. This enables the non-Polish citizen to submit an application for granting the type A work permit without appending the information of the district governor, hence, it shortens the whole procedure.

Fast track for the chosen few

Employers wait much shorter, compared to the A type work permit procedure, (in practice from two to four weeks), if they want to employ a citizen of Armenia, Belarus, Georgia, Moldova, Russia or Ukraine (this does not apply to seasonal jobs). In this case, the employer should file a statement with the relevant labour office confirming employment of a non-Polish citizen, which allows the employer to avoid the test market procedure. Once the required documents are filed and the office confirms that the documentation is complete and accurate, the submitted statement is entered into the register which is confirmed by the official stamp on the submitted statement.

The period of employment of a non-Polish employee working on the basis of such statement, however, cannot exceed six months (understood as 180 days) during subsequent 12 months. Nevertheless, the employer that employed a non-Polish citizen (under an employment agreement) on the basis of such statement for the period not shorter than three months may ensure continuity of his/her employment. Pursuant to Article 88za(1) of the Promotion Act, if an employer who employed a non-Polish citizen for a period not shorter than three months, on the basis of the statement confirming employment of a non-Polish citizen, submitted, before the date of completion of employment indicated in the statement, a request to issue the employment permit for the same position under the employment agreement, on the terms not worse that the ones specified in the statement, the work of the non-Polish citizen is considered to be legal from the date of the lapse of validity of the statement until the date of issue of the work permit or delivery of a negative decision. What is more, Article 88za (3) allows the employer not to file the employment permit application, if prior to the lapse of the completion date indicated in the statement, the non-Polish citizen submits the application for temporary residence and employment (the consolidated permit) in order to continue the employment with the employer.

Serving on the Management Board

Non-Polish citizens often serve as Management Board members in companies with foreign capital. If they perform their duties remotely or their presence in the country is limited, they are usually not required to obtain a work permit. Such permit, however, must be obtained if a non-EU/EEA national, for reasons of:

a) serving on the Management Board of a legal entity entered into the Register of Entrepreneurs or a company limited by shares in organization [Polish: w organizacji], or

b) handling the matters of a limited partnership or a limited joint-stock partnership as its general partner, or

c) being granted commercial proxy,
remains in Poland for the total period of more than six months during subsequent 12 months. The prevailing view is that the six-month period should be construed as 180 days.

The condition for a Management Board member to receive a work permit is, i.a., that the company generates particular income, achieves particular headcount or demonstrates that it has funds, or conducts activities which enable such conditions to be met in the future, in particular by conducting business activity which contributes to increase in investments, transfer of technology, introduction of advantageous innovations or creation of jobs. In practice this involves drawing up a business plan, which is especially relevant for newly established companies. Going through the job market test stage is not required.

This is the English version of the article published in the Polish daily Rzeczpospolita on 3 March 2021.