Skilled Immigration Act from 1st March 2020: Changes for Employers
On 1st March 2020, the Skilled Immigration Act will come into force in Germany. It will primarily amend the Residence Act (AufenthG) and therefore change the rules applicable to employers regarding the employment of third-country nationals. The Skilled Immigration Act intends to simplify and speed up the employment of skilled workers from outside the EU, EEA and Switzerland with a university degree or vocational training. We have therefore summarised the new rules relevant to employers who employ foreign skilled workers – or would like to do so – below.
I. Work/Residence Permit for Qualified Employment
From 1st March 2020, foreign skilled workers will be able to obtain a combined work/residence permit for qualified employment (s. 18, 18a, 18b para. 1, 39 new AufenthG) if they fulfil the following prerequisites:
1. They are a skilled worker with vocational training or a university degree, i.e:
- They have either completed vocational training in Germany or hold an equivalent foreign vocational qualification.
- They have obtained their university degree in Germany or it is a recognised or comparable foreign university degree.
- The employer can check whether a foreign university degree is recognised in Germany on the Anabin database. A formal recognition of the foreign vocational professional qualification may be required (on this, see the official website provided by the Federal Ministry for Economic Affairs).
2. They hold a concrete job offer (usually in the form of an offer letter or an employment contract).
3. Approval is granted by the Federal Employment Agency, which requires the following conditions to be fulfilled:
(a) The skilled worker shall not be employed under less favourable working conditions than comparable domestic employees;
(b) they are employed as a skilled worker and their qualification enables them to conduct this employment;
(c) the employment is conducted based on a local German employment contract (i.e. it must not be a secondment based solely on a foreign employment relationship).
4. if necessary: the hold a professional licence.
II. Settlement Permit for Skilled Workers
Skilled workers with a work/residence permit for qualified employment will also be privileged with regards to obtaining a settlement permit (“Niederlassungserlaubnis”), which does not have a time limit and therefore grants them the unlimited right to residence and uninhibited access to the labour market (s. 18c new AufenthG). If they have been in possession of a work/residence permit for qualified employment for four years (and if other conditions are met), they will be able to apply for such a settlement permit. Regularly, the settlement permit can only be obtained after five years (s. 9 AufenthG).
III. Residence Permit for the Purpose of Seeking Employment for Skilled Workers
A new residence permit for skilled foreigners enables them to come to Germany and look for skilled employment for a period of up to 6 months to a maximum of 18 months (s. 20 new AufenthG). The expected increase in the number of skilled workers staying in Germany should make it easier for employers to fill vacancies. This is supplemented by another new residence permit which enables foreigners to come to Germany to search for a place of study or for a place in vocational training (s. 17 new AufenthG).
IV. Accelerated Immigration Procedure for Skilled Workers
From 1st March 2020, employers can conduct the accelerated immigration procedure for skilled workers at the competent foreigners authority in Germany on behalf of the skilled worker in exchange for a fee (s. 81a new AufenthG). Up until now, the employer’s opportunities to participate in the application for a residence permit for the potential employee had been limited; the accelerated immigration procedure considerably expands these opportunities.
V. Central Foreigner Office
Employers and foreign skilled workers should check which office is competent before applying for the work/residence permit, as responsibilities may have shifted: The German federal states are each supposed to set up at least one central foreigner office (s. 71 para. 1 sentence 5 new AufenthG). In Berlin, for example, the “Berlin Foreigner Office” has now become the “Berlin Immigration Office”.