Work permit

Work permit was granted by the Federal Employment Agency towards foreigners permission to pursue in the federal territory of paid employment ( § 284 SGB III in force until 31 December 2004 as amended). The formal work permit has been abolished by the Immigration Act. Their place of residence is entered on 1 January 2005, in which the permission to investigate in paid employment, is entered. The residence permit is an administrative act which is issued by the immigration office. To the extent it contains provisions on the exercise of employment, he generally requires the internal administrative approval of the Federal Employment Agency ( § 39 Residence Act [ Residence ] ).

Work permits, there is still a transitional period as EU work permit ( § 284 SGB III in force from 1 January 2005 ). You will only Union citizens from the recent accession states (which is currently Croatia) issued and their family members, as long as the European law free movement of workers does not yet exist for nationals of these countries.

The other Union citizens and their family members do not need a work permit; they already enjoy the full free movement of workers (Article 45 et seq TFEU). To prove her right to free movement, they received until January 28, 2013 Freizügigkeitsbescheinigung; since they will ever need no residence document. Your family members will continue to receive a residence card.

Work permit under German law

In the German national law the right to pursue gainful activities by the fundamental right of freedom of occupation (Art. 12 GG) is protected. This fundamental right is only valid for German. Foreigners require a permit issued in accordance with the relevant provisions of the law on aliens since the entry into force of the Residence Act is part of the permit.

The right to work

In place of the Employment Agency, the foreigners authority is responsible since January 1, 2005, to authorize the opening of an activity for a fee. The Employment Agency will, where it is required by the Act and the Regulations made ​​thereunder, involved only in an internal administrative approval process. The permission to work is entered into the residence permit ( § 4 para 2 of the Residence Act ).

In contrast to the previous Aliens Act the Residence Act differs strongly between independent and non-independent activities. § 10 of the Aliens Act still spoke of " Paid Employment", referring to the commencement of employment. The self-employed persons remained unmentioned in the Aliens Act and could only in connection with any other residence permit according to § 7 of the Aliens Act may be permitted. With the entry into force of the Residence Act, a change in meaning has so far completed: Under employment law now understands the self-employment as an entrepreneur and the salaried activity as workers in an employment relationship (Article 2 § 2 of the Residence Act ). The paid work is now called employment and is legally defined in § 7 SGB IV. Both terms must be strictly kept apart: So students must be in employment and exercise student jobs with a maximum of 120 full days or 240 half days per year; self-employed, however, they may not be ( § 16 para 3 of the Residence ).

Asylum seekers, Convention refugees ( § 25 para 1 and 2 of the Residence Act ) as well as foreigners with a permanent residence permit ( § 9 paragraph 1 of the Residence Act ) have under the Residence Act a right to gainful employment.

The same is true for German foreign family members ( § 28 para 5 of the Residence ), for foreigners with a residence due to the return option ( § 37 para 1 of the Residence Act ) and for foreigners with residence permits for former German ( § 38 paragraph 4 of the Residence ).

For foreigners redrawn family members obtain a right to gainful employment, unless the foreigner to whom family reunification takes place, is entitled to take up employment ( § 27 para 5 of the Residence ). You receive unlike before immediately a right to unrestricted access to employment, and possibly access to self-employment, if the partner already living here has these rights.

For commercial purposes nationals entering foreigners, graduates

Authorisation as a new employee on travel Direction foreigners to enter and for employment (§ § 18, § 19 of the Residence Act ) regulates the Employment Ordinance ( Employment Ordinance ). Permission is usually only referred to in the Employment Ordinance issued activities (eg Au Pair, specialist chefs, scientists Distance to public facilities; journalists)

The Employment Ordinance also regulates the conditions for international students with a residence permit for the purpose of study who wish to stay and work after studying in Germany. You may not, in connection to the study up to 12 months looking for a decent job they graduate ( § 16 para 4 of the Residence ). According to § 27 of the Employment Regulation doing the Vorrangigkeitsprüfung falls away ( from October 2007 to December 2008 regulated the graduates Access Regulation HSchulAbsZugV, since Jan. 2009, the Employment Ordinance ). The employment agency only checks whether activities and remuneration meet the qualification. As well as in the study is for the period of job search after graduation (within 12 months) a work permit-free employment up to 90 Tagen/180 half days a year (§ 16 paragraph 4 sentence 2 of the Residence Act ).

Since January 2009, the said provision of § 27 of the Employment Regulation applies to all foreigners with a German university degree, even if they have already left Germany after studying and living abroad for some time. You may receive a visa and a residence permit for employment purposes if they can demonstrate their completion appropriate binding job offer.

Subordinated labor market access

A labor market access for those not mentioned in § 25 para 1 and 2 of the Residence foreigners with a residence permit under international law, humanitarian or political reasons ( section 5 of the Residence ) is true for all areas of activity, but usually only in the second possible ( labor market test - § 39 Residence Act).

For example: An alien finds a job with an employer. But he may not start, but only need to apply for a work permit at the Immigration Office. The foreigners authority shall refer the case to the employment agency on, which first checks whether the alien will not be employed at less favorable working conditions than comparable German workers, which means in particular that the usual local wages (even if no collective wage ) must be paid to him at least. This requires that the employers of labor market information on pay, working hours and other working conditions can be obtained ( § 39 paragraph 2 sentence 3 of the Residence Act ).

The employment agency then asks the employers to give to a " mediation task", and send him up to six weeks " privileged " unemployed ( German, foreigners with unlimited permission to work). These unemployed must apply for the job and imagine if applicable, to avoid possible sanctions ( lock time, cuts in basic security for job seekers, etc. ). If the employer can establish good that underneath was not a suitable candidate and thus to that priority employees " not available " (§ 39 para 2 No. 1 of the Residence Act ), the employment agency issued the " consent " to the work permit and sends the process to the immigration office. Then the foreigners authority may grant a work permit for the job found, and the alien may begin working.

Exemptions from the labor market test and thus unlimited access to employment without a labor market test are provided according to employment Procedural Regulation ( BeschVerfV ) in the following cases:

• Have for foreigners who allowed at least three years in Germany or stopped tolerated or exercised two years a legally insurable employment in the federal territory, if they are in possession of a residence permit ( § 3b BeschVerfV )

• After a year of work with the same employer for the continuation of employment there ( § 6 BeschVerfV )

• For having entered a country under the age of 18 years young with a residence and with a German university degree or completed vocational preparation measure, or when recording a recognized vocational training ( § 3a BeschVerfV )

• In cases of particular hardship. As such, applies, for example, at least for foreigners with tolerated or residence / standi on humanitarian grounds, requiring treatment trauma of war or persecution, if the employment is part of the therapy in the context of a longer-term treatment plan, as confirmed by the treating specialist ( § 7 BeschVerfV ) and

• ( presupposing special qualifications) for some of the activities under the current for newly arrived foreigner employment regulation - Employment Ordinance (§ 2 BeschVerfV ).

However, the foreigners authority shall also, in such cases, with the exception of eligible activities under § 2 BeschVerfV, liaise with the employment agency to get their " approval " for a work permit. The consent must then be contrary to § 39 Section 2 Sentence 1 No. 1 of the Residence without a labor market test and without examining the working conditions are granted. So it does not matter whether preferential candidates are available, and whether the alien receives adequate compensation.

The consent and therefore the work permit in the above-mentioned cases of the four- year stay in Germany as well as in people who have been admitted as teenagers, indefinitely and without restriction to a particular professional activity and a specific employer, a certain region or certain work periods to be issued ( § § 8, clause 2, § 9 paragraph 4 in conjunction with § 13 BeschVerfV ).

Applicants shall be allowed for the first 12 months did not work ( § 61 para 2 Asylum Procedure Act ), then a subordinated labor market access is in accordance with the Employment Procedure ( see above).

Foreigners with toleration may also for the first 12 months did not work (§ 10 BeschVerfV ), then a subordinated labor market access is after the BeschVerfV ( see above). According to § 11 BeschVerfV an exceeding prohibition of work is permitted if the alien is entered shall be to live here on welfare, or if he be accused prevented by his conduct its otherwise permissible and possible deportation ( eg, lack of involvement in a passport, ).

EU citizens and EEA nationals

EU nationals ( with the exception of Croatia ) and other EEA countries ( Iceland, Liechtenstein, Norway) and their families - even those with a third nationality ( nationality of a non-EEA country ) - have unrestricted access to employment and self-employment. You do not need any permission. Have your third-country national family members entitled to issue a residence card (§ 5 para 2 FreizügG / EU). Both serve as proof of the right of residence and the right to receive a paid employment.

Want to nationals of Croatia to take up employment, they must also obtain an EU work permit. If they issued a limited period, it is called an EU work permit is granted for an unlimited period they, they called right to work - EU ( § 284 para 2 SGB III). Background of this particular scheme is the first step in that Member State be produced free movement of workers. In the labor market test this group of people is given priority over other foreigners.

The following additional benefits are introduced:

• Citizens of Croatia and their family members who have earned at home or abroad, a university degree (eg BA ), obtained for a professional qualification appropriate employment, the EU work permit without a labor market test ( § 12b work permit regulation [ argv ] ).

• Citizens of Croatia, who have earned a recognized German university degree abroad, need for a qualified job training in a state-approved or equivalent formal education profession no EU work permit ( § 12c argv ).

• Already living in Germany Croatian nationals who were admitted in Germany on 1 July 2013 or later for a continuous period of at least 12 months to the labor market, obtain the right to work - EU, which allowed them unrestricted access to labor market. Family members of EU workers from these countries get the right to work -EU without any waiting period (§ 12a, paragraph 4 in conjunction. Sections 1 and 2 argv ).

Exclusively responsible for working the federal agency responsible for issuing the work permit or authorization - EU.

Nationals of Switzerland

Nationals of Switzerland and their family members enjoying the freedom of movement EC-Switzerland Agreement of 21 June 1999, a freedom of movement similar position, but receive (formal) a residence permit with the special entry permit -CH. In this residence is also registered that the employment is permitted.

Transitional arrangements

The transitional provision in § 105 para 1 of the Residence Act clarifies that a license issued under the old law work permit will persist until the date of their expiry. As to 31 December 2004 in addition a permit was needed and this also continues to apply ( § 101 para 2 of the Residence Act ), changes to the existing state at first. When the renewal of the residence permit is required, because this has expired, but the old work permit is still valid, it shall be deemed approval of the Federal Employment Agency for the unexpired term. The provisions contained in the old work permit must be transferred from the immigration office in the new residence permit. This transitional arrangement is due to timing now largely irrelevant.

The ( permanent) work permit old law is already on 31 December 2004 as such extinct ( § 105 para 2 of the Residence Act ). It shall ever since with only as an unrestricted approval of the Federal Employment Agency to take up employment. The person concerned is required since 1 January 2005 for a residence permit, which expressly permits the employment, unless it is already in possession of such.

Legal

Since the basis of the law on aliens employment since January 1, 2005 alone, the residence permit, the immigration authorities must be invoked in the event of a dispute. This is true even if the granting of the residence permit solely on the absence of consent ( § 39 Residence Act) fails the Federal Employment Agency. In this case, the Federal Employment Agency is necessary be summoned to the proceedings before the administrative court ( § 65VwGO ). A jurisdiction of that court does not exist. Unlike the Social Court, the procedure before the administrative court is not free, so if necessary, legal aid is applied for.

The enforcement of a work permit is in principle also in the interim relief possible ( by way of an interim order pursuant to § 123 Code of Administrative Procedure ), but in practice it rarely, because the person often has no arrangement claim (claim for admission to a particular employment) and a fortiori no arrangement reason ( urgency) may assert. Because urgency requires the entry of irreparable harm if the interim injunction were not issued. The mere non-admission to the labor market is not enough for it in general.