A work permit may sometimes be better than an employer declaration

In this article we discuss the case of a non-Polish citizen currently living abroad with no access to the Polish job market, who must therefore obtain a work permit. In this situation, it is usually recommended that the employer applies for the work permit which will be the basis for applying for a visa in the non-Polish citizen’s home country (unless he/she is eligible for visa-free travel).

In the case of Ukrainian, Russian, Belorussian, Moldovan, Georgian and Armenian citizens, the work permit may be replaced with an employer declaration confirming the employer’s intention to employ such non-Polish nationals (which, however, does not apply to seasonal work).

Most people believe that the “declaration pathway” is faster, and hence better, which is not always the case. Sometimes the “work permit pathway” is better for both the employee and the employer.

Usually a faster pathway

Most often both parties to the employment relationship would like the non-Polish citizen to start work as soon as possible. The statutory deadline for registering the employer declaration is seven days after it is filed by the prospective employer, provided that the case does not require any initial inquiry. Experience shows that the deadline is not always met, however, the delays (if any) are not very lengthy.

In most cases employers manage to have their declaration registered quicker than a work permit is issued. Obtaining the work permit may take from several weeks to several months. The “declaration pathway” does not require a prior job market test, which is sometimes necessary when applying for a work permit, and which further extends the work permit procedure by several weeks.

The employer declaration covers a maximum period of six months (understood as 180 days) during the subsequent 12-month period, with periods of work done for all employers under the employer declaration being summed up. Consequently, if a non-Polish citizen recently worked in Poland on the basis of the employer declaration, and utilised the 180-day limit in the subsequent 12-month period, the “declaration pathway” will be temporarily unavailable (or available to a limited extent, if that person utilised only some of the available 180 days). These problems do not occur in the work permit scenario, which as a rule may be issued for a period of up to three years, irrespective of whether the non-Polish citizen has already worked in Poland for this or another employer.

Temporary solution...

Following entry into Poland, non-Polish citizens who wish to legalize their work (beyond the period covered by the employer declaration) and stay (beyond the visa-covered period or visa-free travel authorisation), usually apply for a temporary stay and work permit (a consolidated permit). The waiting period in this case, however, ranges from several months up to over one year. By this time, in all probability such non-Polish citizen would have utilised all work days under the employer declaration procedure, or all days of stay under the visa-free travel regime.

...legalising the stay....

Fortunately, the legislator has provided a transitional solution. If a non-Polish citizen applies for a temporary residence permit during his/her legal stay in Poland, assuming that the application has no formal deficiencies, or that such formal deficiencies were timely cured and the proceedings were not suspended at the request of the party, his/her stay in Poland during the period of waiting for the decision is considered legal, even though all of his/her visa days or days available under the visa-free regime have been utilised. Please note that during this transitional period (after the visa or the visa-free regime has been utilised) the entitlement applies only to the stay in Poland. If the non-Polish citizen leaves Poland, and wishes to return to Poland, or enter any other Schengen state, he/she will most likely need to obtain a new visa or wait until his/her right to the visa-free travel is “restored”.

...and further work

As regards further work for the employer (after the days available under the employer declaration have been utilised), it is possible to continue with work while waiting for the consolidated permit. However, the work conditions cannot be worse than those specified in the employer declaration, pursuant to Article 88za of the Act of 20 April 2004 on Promotion of Employment and Labour Market Institutions (consolidated text Journal of Laws of 2021, item 1100, as amended; hereinafter: the Promotion Act), provided that:

• the non-Polish citizen was employed by the employer on the basis of the registered employer declaration for a period not shorter than three months,
• the application to continue employment with that employer was submitted prior to the work completion date as specified in the declaration,
• the application refers to the same job position under the employment contract and does not contain any formal deficiencies or formal deficiencies were timely cured (and the proceedings were not suspended at the request of the party).

Beware of pitfalls

The above conditions must be met jointly in order to work legally during the period of waiting for the consolidated permit. The legislation and the adopted interpretation of legal provisions prevent some non-Polish citizens from following this option of legalisation of work during their transitional period. For example:

• non-Polish citizens must have been previously employed for a minimum of three months under an employment contract rather than a civil-law contract,
• non-Polish citizens must have worked under the employer declaration at least three months before applying for the consolidated permit; submission of the application after, e.g. seven days of employment does not fulfil this requirement, even if the decision on the consolidated permit is handed down after the required three-month period of employment,
• according to the Labour Inspectorate’s position, the three-month employment period does not include, inter alia, unexcused absence from work or unpaid leave (which contribute to interrupted employment).

The three-month period should not be equated with 90 days, because in the discussed case continuity must be observed. The deadline stated in months ends on the date which corresponds to the first day of that period, and if there was no such date in the last month - on the last day of that month.

Example

A non-Polish citizen started work on 21 September 2021, the three-month period of his/her employment ended on 21 December 2021. In the National Labour Inspectorate’s opinion, in this case submitting an application for the consolidated permit before 22 December 2021 will not legalise further work for the employer during the period of waiting for the consolidated permit.

This creates particular problems for those non-Polish citizens who would like to start their work in Poland on the basis of visa-free travel, which covers a pool of 90 days of stay in all Schengen states (including Poland) during each 180-day period. Even if a non-Polish citizen had the total pool of 90 days of stay available to him/her, the limit may run short - depending on the calendar arrangement - before the end of the three-month period of employment in Poland as described above.

Problems with the Blue Card [Polish: Niebieska Karta]

In some cases non-Polish citizens chose to apply for a temporary residence permit, rather than the consolidated permit, to pursue highly skilled jobs. The permit is called the Blue Card and may apply, e.g. to IT specialists from across the eastern border.

This pathway is more convenient then the consolidated permit, if a non-Polish citizen meets the conditions to obtain a Blue Card. The Blue Card makes it easier for families of non-Polish citizens to join them in Poland, and offers wider opportunities for the non-Polish citizen to change employers or obtain a long-term residence permit.

In this case, if a non-Polish citizen works on the basis of the employer declaration, the application for a Blue Card does not legalise his/her work during the period of waiting for the Blue Card after the days of work covered by the employer declaration have been utilised. Therefore, if the applicant does not obtain the Blue Card before all the days covered by the employer declaration have been utilised, his/her employment will be illegal from that moment on. This omission should be regarded as a legislative error, or at least an ill-considered construction of the provision.

Sometimes the work permit is better

If a non-Polish citizen on his/her "declaration pathway" encounters the abovementioned problems with legalisation of his/her work in the period awaiting the temporary residence permit (e.g. due to his/her intention to apply for the Blue Card), it is worth considering obtaining a work permit instead of an employer declaration.

Although it may take longer to obtain a work permit compared to the employer declaration procedure (and the non-Polish citizen starts work in Poland at a later date, as a result), the "permit pathway" does not generate the problems as in the case of applying for a single permit or a Blue Card.

Under Art. 88g(1a) and (1b) of the Promotion Act , if a non-Polish citizen who is employed on the basis of the work permit applies for a consolidated permit or a Blue Card to continue his/her work with the same employer, and in the same job position as he/she did under the work permit, and the application does not contain formal deficiencies or the deficiencies have been timely cured, his/her further work is considered legal. Unlike the “declaration pathway”, this provision does not require applicants to have previously worked for three months before applying and applies also to Blue Card applications.

Work conditions

Non-Polish citizens should work in accordance with work conditions specified in the employer declaration, permit or any other document which serves as the basis for employment, otherwise the employment is illegal. Not everyone remembers that in the case of the “declaration pathway, the declaration specifies the conditions of employment in greater detail than the work permit. For example, the declaration specifies the place of work of the non-Polish citizen, while the work permit does not (although there is a relevant section in the application form).

According to some interpretations, if the place of work is changed or the non-Polish citizen at the request of the employer agrees to switch to telework on a daily basis rather than occasionally under provisions introduced in connection with the COVID-19 pandemic where special rules apply, such change is allowed only in the case of employment on the basis of the work permit. In the case of the “declaration pathway”, it is necessary to obtain a new document specifying the new location of work.

Consequently, before employers select the “declaration pathway”, consideration should be given to each individual case and situation of every non-Polish citizen. The processing of the employer declaration may be faster, however, it may not be the most advantageous for both the non-Polish citizen and the employer.

The article "Zezwolenie na pracę czasem lepsze od rejestracji oświadczenia" written by Michał Olszewski and Bartosz Abramowicz has been published in the Polish Daily Rzeczpospolita on 06.10.2021.