Update Employment Law July 2019
The new German Skilled Worker Immigration Act (Fachkräfteeinwandungsgesetz; FEG)
In order to make Germany more appealing to skilled international workers and meet the increasing demand for skilled workers by way of labor-based migration, the German Parliament (Bundestag) adopted the Skilled Worker Immigration Act (FEG) on June 7, 2019. The Act is expected to become effective in early 2020.
The administrative obstacles for non-EU citizens have been rather immense when it comes to being employed in Germany. In order to improve this situation, the FEG stipulates revisions in multiple laws with the most relevant being in the Residence Act (Aufenthaltsgesetz; AufenthG). The following article focuses on the new regulations regarding residence permits (Aufenthaltstitel) specifically for skilled workers.
Residence permits for the purpose of employment
In principle, skilled workers can obtain a residence permit pursuant to Sec. 18 AufenthG (rev.) for the purpose of employment when and if there is a specific job offer, the Federal Labor Office (Bundesagentur für Arbeit) has approved the request (exceptions from the approval requirement are admissible), and a professional license (Berufsausübungserlaubnis) has been granted or has been approved (e.g., in the medical profession). Furthermore, a certificate of equivalence of the qualification or a recognized foreign university degree or a foreign university degree equivalent to a German university degree must be presented. Special regulations apply to migrants 45 years or older. Those migrants must meet or exceed a specific remuneration limit or provide separate proof of appropriate retirement plans.
In the new Residence Act, the legislator distinguishes between skilled workers who have completed professional training (Berufsausbildung) and skilled workers who have an academic education.
Skilled workers with a Berufsausbildung are foreigners who have completed German qualified professional training or who have a foreign professional qualification equivalent to German qualified professional training. These skilled workers may be granted a residence permit for the purpose of qualified employment to which their qualification enables them (Sec. 18a AufenthG (rev.)).
Skilled workers with an academic education are those who have a German university degree, a recognized foreign university degree or a foreign university degree equivalent to a German university degree. These skilled workers may also be granted a residence permit for the purpose of qualified employment to which their qualification enables them (Sec. 18b AufenthG (rev.)). In that case, a so-called Blue Card EU may be granted in particular. However, in order to obtain such a card, the agreed-upon salary must equal no less than two thirds of the annual assessment base in the general German pension insurance as under the current regulations. This would be a minimum salary of 53,600.00 EUR for 2019 (West Germany). As currently, exceptions apply to certain critically needed professionals (e.g. in the IT sector).
Both the residence permit pursuant to Sec. 18a AufenthG (rev.) and pursuant to Sec. 18b AufenthG (rev.) are, in principle, issued for a period of four years unless the employment or the Federal Labor Office’s approval is limited to a shorter period of time. The Blue Card EU is issued for the duration of the employment contract plus three months if the duration of the employment contract is less than four years. This standardization of the issue period is likely to result in more reliable planning for companies.
Involvement of the Federal Labor Office
What’s new is that it is no longer a requirement to verify for the above-mentioned skilled workers whether German or EU employees are available on the labor market to fill the respective position. The so-called priority check has been eliminated (Sec. 39 AufenthG (rev.) in conjunction with BeschVO (rev.) (Employment Regulation)). The officials do basically only verify whether the foreign skilled worker is employed at working conditions less favorable than those of a comparative German worker and whether the worker is employed in accordance with his/her qualification. Hence, the employer is obliged to provide the immigration office with information regarding the remuneration, working hours, and additional terms and conditions of employment.
The Federal Labor Office can now also issue an approval for foreign citizens in the field of information and communication technology regardless of their specialist qualification if the foreign citizen can provide supporting documents that he/she has obtained skills over the previous seven years that are equivalent to no less than five years work experience and has a sufficient degree of proficiency in the German language (Sec. 6 BeschVO (rev.)).
Employers’ obligation to provide information
According to the new Sec. 4a(5) AufenthG, the employer of a foreigner has several obligations. The employer must:
- verify whether the foreign citizen has a residence permit and that there are no employment restrictions;
- retain a copy of the residence permit for the duration of the employment; and
- notify the competent immigration office within a period of four weeks after learning that the employment was terminated prematurely.
The last bullet point has been added to the current legal regulations.
Accelerated skilled worker procedure
A completely new concept is the so-called accelerated skilled worker procedure (beschleunigtes Fachkräfteverfahren) (Sec. 81a AufenthG (rev.)). This procedure allows the necessary steps to obtain a residence permit to be taken based on a mutual arrangement by and between the immigration authorities and the future employer (authorized by the foreign citizen). This arrangement includes consultation and cooperation obligations for the immigration authorities. Thus, for example, the immigration office must notify the competent diplomatic mission in advance about the impending visa application filing by the foreign citizen. At the same time, the potential employer has obligations such as providing documents, etc.
In case of an accelerated skilled worker procedure, the diplomatic mission shall schedule an appointment for the filing of the visa application within three weeks of receipt of the advance approval by the immigration authorities. Within a period of three weeks of the filing of the complete visa application, a decision shall then be made in the application process (Sec. 31a AufenthVO (rev.) (Immigration Regulation)). The objective is to solve a major issue in practice: long waiting periods in procedures at the respective diplomatic missions.
The new law contains several improvements which make it easier to recruit skilled workers from non-EU countries. However, labor-related migration will remain a complex and rather opaque issue.