On 1 March 2020, the German Skilled Immigration Act will come into force. This article highlights the relevant changes to the existing codified German immigration law system.
In particular, the material provisions of the German Residence Act in §§ 16–17 (studies/vocational training) and §§ 18– 21 (employment), as well as the German Employment Ordinance, are amended and procedural amendments to expedite the immigration process for skilled workers are introduced.
Until now, only skilled workers with an academic education from non-EU countries have had unrestricted access to the German labour market. Under the Skilled Immigration Act, however, skilled workers with foreign vocational (ie, non-academic) training/qualification in any occupation will also be able to obtain a visa or residence permit for local employment. The restriction to certain under-resourced professions will no longer apply for skilled workers.
The introduction of § 4a section 3 of the German Residence Act further facilitates immigration practice. In the event of a change of employer due to a transfer of business, according to § 613 of the German Civil Code, or a change of legal form, it is no longer required to amend the ancillary provisions of the issued German residence permit accordingly.
The new regulation, set out in § 4a section 5 of the German Residence Act, tightens up the German employer’s obligations. The employer must establish whether the foreign national has obtained a German residence permit with authorisation to work, and must keep a copy of such on file throughout the term of employment. If the employment is prematurely terminated, the employer must notify the German Immigration Office within four weeks of learning of the termination. Violation of this obligation is punishable, as an administrative offence, by a fine of up to €30,000.
Correspondingly, the foreign national holding a German residence permit, pursuant to §§ 16–17 or §§ 18–21 of the German Residence Act, must notify the Immigration Office within two weeks of learning of the early termination of his or her studies, vocational training or employment in Germany. Failure to comply with this obligation can lead to the foreign national being fined up to €1,000.
Before applying for a visa under the Skilled Immigration Act, foreign candidates need to obtain official recognition of their foreign vocational training from the competent German authorities.
In the recognition procedure, the competent authority in Germany must establish whether the foreign vocational training corresponds to the requirements for the relevant German profession, ie, that there are no significant differences. This is called the equivalence test.
According to the new provision contained in § 17 section 1 of the German Residence Act, valid only until 1 March 2025, foreign high-school graduates aged under 25 may come to Germany for up to six months to seek appropriate vocational training, where:
Similarly, § 17 section 2 of the German Residence Act contains a regulation for foreign high-school graduates, allowing them to come to Germany for nine months for the purposes of university application. However, in this case, there is no age restriction nor any temporary limitations on when this allowance may be taken.
The provisions for carrying out studies in Germany are now contained in § 16b of the German Residence Act. When the stated requirements are fulfilled, a residence permit for study purposes – initially issued for one to two years – is granted.
The revised regulation contained in § 16a of the German Residence Act now contains all relevant provisions related to undertaking vocational training in Germany. This includes company training at the German entity of a global corporation.
If the competent German authorities have only partially recognised the foreign vocational training in the recognition procedure, foreign candidates may obtain a visa in accordance with § 16d of the German Residence Act to carry out further requirements for qualification, skill development, or take exams, in Germany. For all stays within the scope of this regulation, German-language skills corresponding to the relevant requirements for qualification are needed, ie, at least an A2-level command of the German language. This visa can be issued for a term of one to three years, and under certain conditions, work is permitted.
The revised § 18 of the German Residence Act contains a new structure for the work carried out by third-country nationals in Germany. In § 18 section 2 of the German Residence Act, the general preconditions for work in Germany are outlined. They require, among other things:
Additionally, § 18 section 3 of the German Residence Act introduces the legal definitions of a foreign skilled worker with vocational training, and a foreign skilled worker with an academic degree.
A foreign skilled worker with vocational training is a foreign individual who has undertaken a course of either German-qualified vocational training, or foreign vocational training that is equivalent to German-qualified vocational training.
A foreign skilled worker with an academic degree is a foreign individual with a German university degree, a recognised foreign degree or a foreign degree that is comparable to a German university degree.
If a foreign individual qualifies as a skilled worker with vocational training, a German residence permit for work purposes may be granted pursuant to § 18a of the German Residence Act.
Under this regulation, it is required that:
Qualified employment is deemed such if the skills, knowledge and abilities acquired in studies or vocational training are necessary for undertaking the work in Germany.
A strict convergence between the intended employment in Germany and the vocational training is not required.
If a foreign individual qualifies as a skilled worker with an academic degree, a German residence permit for work purposes may be issued according to § 18b of the German Residence Act. This provision is comparable to § 18a of the German Residence Act – the only difference is the requirement of an academic degree, rather than a qualified vocational training. In both cases, no priority job-market test is conducted by the BA.
Residence permits for skilled workers, according to §§ 18a and 18b of the German Residence Act, are initially issued for four years, unless the employment relationship or any approval by the BA is for a shorter term. After four years, skilled workers are entitled to apply for a permanent German settlement permit – this one year less than provided for by the current regulations.
The EU Blue Card is available for foreign skilled workers with an academic degree pursuant to § 18b section 2 of the German Residence Act.
The Skilled Immigration Act amends the Blue Card regulations to the extent that the relevant provisions previously included in the German Employment Ordinance are now exclusively contained in the German Residence Act. However, the substantive preconditions for the granting of a Blue Card remain unchanged.
The Skilled Immigration Act introduces the new regulation in § 19c of the German Residence Act.
According to § 19c section 1 of the German Residence Act, a residence permit for work purposes can be issued if the intended employment of the third-country national is permitted under the respective provisions of the German Employment Ordinance. This covers the cases of work in Germany under the “best friends” provision of § 26 of the German Employment Ordinance, which applies to certain privileged nationals of Australia, New Zealand, Japan, South Korea, Israel, Canada and the USA.
Under § 19c section 2 of the German Residence Act, and in accordance with the German Employment Ordinance, a residence permit for work purposes may be granted to foreign nationals who do not qualify as a skilled worker, but who have distinctive professional experience. In particular, a German work permit can be issued for third-country individuals working in the IT industry, if they have qualifications comparable to those of a skilled worker, obtained through at least three years of work experience within the past seven years, remuneration at a specific level (for 2020, this means an annual gross salary of €49,680), as well as B1-level German-language proficiency.
In both cases of § 19c of the German Residence Act, the work approval from the BA is required and a priority job-market test is carried out.
The revised § 20 of the German Residence Act now entitles skilled workers with vocational training, as well as skilled workers with an academic degree, to apply for a jobseeker visa for Germany, which is valid for six months. This visa allows the foreign skilled worker to undertake trial work in Germany for up to 10 hours per week in their area of expertise.
The jobseeker visa for foreign skilled workers with a vocational training requires that the competent German authority has confirmed that:
For the jobseeker visa for foreign skilled workers with an academic degree, the degree must be equivalent or comparable to a German university degree, and the foreign national must have sufficient financial means to cover the costs of living in Germany while looking for work.
"For the job seeker visa for foreign skilled workers with an academic degree, the foreign academic degree must be equivalent or comparable to a German university degree"
To expedite the processing times for skilled workers, the Skilled Immigration Act introduces the following procedural amendments to the German Residence Act.
The German federal states have been asked to each set up at least one Central Immigration Office (ZAB), which attends to the national visa application procedure for skilled workers according to §§ 16a, 16d and 17 of section 1; 18a, 18b and 18c section 3; and 18d, 18f, 19 (ICT card), 19b, 19c and 20 of the German Residence Act.
The ZAB in each federal state also decides on the application for family reunion visas for an applicant’s spouse, same-sex partner and/or children, if these are filed in a timely manner.
However, the ZAB’s involvement is limited to the initial procedure to obtain a national visa. It is not involved in the subsequent issue of a long-term residence permit for Germany.
If a federal state does not establish a ZAB, the existing regular Immigration Office in this state will, acting on the basis of the respective competency regulations, will decide, as was previously so.
§ 81a of the German Residence Act sees the introduction of an accelerated procedure for skilled workers.
The prospective German employer of the skilled foreign employee initiates this procedure at the competent Immigration Office in Germany. The process consists of the following steps:
The accelerated procedure for skilled workers contains certain time limits in which the relevant immigration authorities must decide or take action. These can be summarised thus:
If the intended targets of the Skilled Immigration Act can be reached, and in particular the immigration procedure expedited, the full impact of these revisions to the law remains to be seen.