§ 4a AufenthG
Explanation of employers’ obligations when employing foreign nationals (Section 4a of the Residence Act).
German Citizenship through VISAGUARD
what employer obligations there are when employing foreign nationals
how employer obligations can be implemented in practice
what consequences may arise in the event of violations
Practical HR tips: common problems when employing foreign nationals
Table of Content
1. Employer obligations regarding the employment of foreign nationals (Section 4a of the Residence Act)
2. Duty to check work permit (Section 4a (5) Sentence 2 No. 1 Residence Act)
2.1 Duty to check upon hiring
2.2 Duty to check when changing employer
3. Duty to retain documents (Section 4a (5) sentence 2 no. 2 Residence Act)
4. Duty to notify (Section 4a, Paragraph 5, Sentence 2, No. 3 of the Residence Act)
5. Duty to provide information (Section 39 (4) Residence Act) and duty to cooperate
5.1 Obligation to provide information to the Federal Employment Agency
5.2 Obligation to cooperate with the immigration authorities and embassy
6. Conclusion Employer obligations regarding the employment of foreign nationals
1. Employer obligations regarding the employment of foreign nationals (Section 4a of the Residence Act)
Employing foreign skilled workers offers companies numerous advantages, but also entails specific legal obligations. Employers must ensure they comply with all legal requirements to avoid fines or criminal prosecution. This article explains the employer's obligations when employing foreign workers and how to implement them in a legally compliant manner.
Employers' obligations regarding the employment of foreign nationals are regulated in Section 4a, Paragraph 5 of the Residence Act . However, these obligations only concern residence law obligations and labor migration law. These obligations must be distinguished from employer obligations regarding social security, tax, and labor law when employing foreign nationals. These obligations are not addressed in this article. This article only addresses the migration law perspective of the employment of foreign nationals .
2. Duty to check work permit (Section 4a (5) Sentence 2 No. 1 Residence Act)
2.1 Duty to check upon hiring
Before hiring a foreign employee, the employer must verify whether the employee possesses a valid residence permit with a work permit . According to Section 4a, Paragraph 5, Sentence 1 of the Residence Act, a foreigner may only be employed or commissioned to perform other paid services or work if they possess a residence permit and are not subject to any prohibition or restriction in this regard. Employers must verify this. This applies not only when the foreigner is first hired, but also if the residence permit needs to be extended.
2.2 Duty to check when changing employer
When carrying out the verification requirements under Section 4a, Paragraph 5 of the Residence Act, it is particularly important to ensure that the foreign national holds a work permit for the respective company . As such, many residence permits are tied to a specific employer (so-called employer binding ). Foreign nationals may then only work for that employer. If they change employers, they must apply for the appropriate change of employer permit. Changing employers without permission would otherwise constitute illegal employment . This also applies if they change departments or positions within the company, as long as they are tied to that employer.
3. Duty to retain documents (Section 4a (5) sentence 2 no. 2 Residence Act)
Employers in Germany who employ a foreign national must comply with legal requirements regarding the retention of residence documents . According to Section 4a, Paragraph 5 of the Residence Act (AufenthG), employers are required to retain a copy of the required residence permits, work permits, or other documentation in paper or electronic form for the entire duration of the employment. This can be done by storing the documents in the employee file ; alternatively, a separate system can be maintained. Compliance with this regulation serves to monitor the legal employment of foreign nationals and combat illegal employment. Employers who fail to fulfill this obligation risk heavy fines.
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4. Duty to notify (Section 4a, Paragraph 5, Sentence 2, No. 3 of the Residence Act)
Employers who employ foreign workers in Germany are subject to certain reporting obligations to the relevant immigration authorities . The residence permit for skilled foreign workers is often tied to the specific employment. Delayed or omitted reporting can result in the relevant authorities not being informed of changes in a timely manner. In this case, the authorities cannot appropriately decide on the revocation or subsequent limitation of work permits. This leads to foreigners sometimes staying in Germany for months or years with a residence permit for gainful employment, even though they no longer have a job.
If a foreign worker whose residence permit was issued under Chapter 2, Section 4 of the Residence Act (e.g., EU Blue Card, ICT Card, settlement permit for highly qualified workers) terminates their employment prematurely, the employer must notify the competent immigration authority within four weeks of becoming aware of the termination . A simple electronic notification, such as by email or via the contact form of the relevant immigration authority, is usually sufficient. The notification should be stored in the company's internal system in order to be able to prove, in case of doubt, that the notification requirement under Section 4a, Paragraph 5 of the Residence Act has been fulfilled.
5. Duty to provide information (Section 39 (4) Residence Act) and duty to cooperate
5.1 Obligation to provide information to the Federal Employment Agency
Another employer obligation is the duty to provide information to the Federal Employment Agency . According to Section 39, Paragraph 4 of the Residence Act, the employer must provide the Federal Employment Agency with information regarding the employment relationship (wages, working hours, working conditions, social security obligations, requirement for a professional license) in order to issue a work permit or work permit. The Federal Employment Agency can set a deadline for this. The information is usually requested via the Federal Employment Agency's electronic data processing system or, in case of doubt, in writing.
5.2 Obligation to cooperate with the immigration authorities and embassy
Employers also have a duty to cooperate with employees if they wish to hire them. According to Section 241, Paragraph 2 of the German Civil Code (BGB), contracts require mutual consideration of the rights, legal interests, and interests of the other party. Therefore, if the employee requires a specific document to apply for a residence permit (e.g., an employer's certificate), the employer must provide it under general contract law. Otherwise, the employer violates the general duty of loyalty under the employment contract.
Summary of this Page
Employing skilled foreign workers offers companies numerous opportunities, but is also associated with clearly defined employer obligations. According to Section 4a of the Residence Act (AufenthG), employers must check the work permit before hiring, retain residence documents, and inform the relevant immigration authorities in the event of any changes, such as a change of employer or termination of the employment relationship. Furthermore, employers are required to provide information to the Federal Employment Agency and to cooperate in issuing the necessary documents for the skilled worker. Failure to comply with these obligations can result in heavy fines. Companies protect themselves legally by consistently implementing and documenting their obligations under residence law.
