GERMANY: Skilled Immigration Act Comes into Effect
The Skilled Immigration Act (Fachkräfteeinwanderungsgesetz), which applies from 1 March 2020, is intended to facilitate immigration and employment for foreign skilled workers.
Early Departure Notification
Effective 1 March 2020, employers are obliged to notify the local immigration office of any early termination of an assignment or employment of a foreign worker holding a residence permit for employment, within four weeks after receiving knowledge of an early termination. The violation of this obligation is punishable as an administrative offence by a fine of up to EUR 30,000.
Correspondingly, foreign nationals holding a residence permit for employment must now notify the foreigners office within two weeks of knowledge of early termination of their studies, vocational training or employment in Germany. Failure to comply with this obligation can lead to a monetary fine for the foreign national of up to EUR 1000.
The method of notification, and the progress of implementation of this rule, may vary between local immigration offices, but the notification is now a legal requirement.
Definition of Skilled Worker
Skilled workers (Fachkraft) within the meaning of the law are now not only third-country nationals who have a university degree, but also those who have vocational qualifications.
Skilled workers may practice an occupation for which they are qualified. Skilled workers with academic training are able to practice not just those occupations which require a university degree but also other qualified professions which fall within the specialist context of the qualification, and for which vocational, non-academic training is normally required.
With a specific job offer and with recognition of their qualification, skilled workers with vocational training are now able to access all occupations for which they are qualified. They are no longer limited to specific shortage occupations.
The employment of unqualified or low-qualified foreign workers is not possible under the new law. Prior to entry, the foreign national’s qualification is verified for equivalence through the so-called recognition process (anabin). There is one exception - IT specialists who have at least three years of professional experience and a current salary that meets the locally set minimum threshold can come to Germany without recognition and practice their occupation.
Applicants whose qualifications are only partially recognised can apply for a residence permit for up to 18 months to complete the necessary training and education in Germany in order to obtain the missing qualifications. To qualify, applicants must have German language at A2 level and sufficient financial resources.
Foreign skilled workers are now able to come to Germany even before the start of the recognition procedure and to take up employment in parallel with the procedure. The requirement for this is a placement agreement between the Federal Employment Agency and the labour authorities in the country of origin.
Labour Market Test
For skilled workers, the new law waives the "priority check" (Vorrangprüfung) which tests whether privileged applicants (German or other EU-national qualified workers) are available on the labor market. However, if the labor market situation changes, the priority check may be reintroduced for certain professional groups or regions.
Another new feature is the introduction of an accelerated process for skilled workers (beschleugnigtes Fachkräfteverfahren), which the employer can initiate at the local immigration office.
For this purpose, a new regulation stipulates that the employer, acting on behalf of the employee at the authority, can conclude an agreement with the competent immigration authority, authorizing the local immigration office to initiate the procedure for determining the equivalence of the professional qualification or, if necessary, obtaining a license to exercise the profession or to securing a pre-approval from the Federal Employment Agency.
The immigration office must also inform the German representation in the home country of an upcoming visa application and give their pre-approval on the visa process, provided all the requirements are met.
In the accelerated process for skilled workers, the employee receives an appointment for a personal interview with the German representation at the latest three weeks after prior approval (time will show if this is realistic). After another three weeks, the visa should be issued.
Job Seeker Visa
The job seeker visa for skilled workers has been extended to include qualified workers with vocational training. Such visas may be issued for a duration of six months with the opportunity to find a job.
The requirements for those with vocational qualifications include proof of sufficient financial resources, German language skills at level B1 and residence in the current country of residence for at least six months. The job seeker visa allows the holder to carry out trial employment (Probearbeit) for up to ten hours per week.
Another new feature of the job seeker visa is the possibility of a stay in order to seek vocational training (an apprenticeship or study place).
The corresponding residence permit can be issued to foreign nationals who have not reached the age of 25 ,with a school-leaving qualification that entitles them to access higher education in Germany or their home country, as well as knowledge of German at level B2, provided that their livelihood is ensured.
Employers who may be affected are encouraged to contact a Newland Chase immigration specialist for case-specific advice.