Priority check
Explanation of the scope of application and exceptions to the Labour Market Test.
Here you learn ...
what the priority check is and what consequences it has
in which cases the priority test is applied
what exceptions to the priority check there are
how the priority review procedure works
Table of Content
1. What is the priority check?
2. Application cases of the priority check
2.1 Abolition of the priority check
2.2 Case groups priority check
3. Exceptional cases priority check
3.1 Special requirements by employers
3.2 Extension of a work permit
3.3 Hardship cases
4. Procedure for the priority check
5. Conclusion Priority check
1. What is the priority check?
The Labour Market Test protects the German labour market from wage dumping. It is a legally required step in the approval process for the employment of foreign workers in Germany. It is conducted by the Federal Employment Agency (BA) and serves to verify whether preferentially qualified workers are available for a specific job. The priority test is only carried out if it is required by law or the Employment Ordinance (see Section 39 Paragraph 3 No. 3 of the Residence Act ).
The BA can only refuse its approval based on the priority check if the applicants with priority are suitable candidates who are able and willing to take up the vacant position promptly. Those with priority for the purposes of the priority check are:
German,
Nationals of a Member State of the European Union and the European Economic Area,
Swiss citizens under the EU-Switzerland Free Movement Agreement
Third-country nationals with access to the labor market.
The aforementioned employees are also given priority if they can only be placed in work with employment promotion services (e.g. through further training).
2. Application cases of the priority check
2.1 Abolition of the priority check
The Federal Employment Agency's priority check is a measure to control labor migration and serves to protect the German labor market. However, it is no longer used in many cases . For many qualified specialists, the priority check has been relaxed or abolished altogether in recent years - particularly for professions with a shortage of skilled workers. This applies in particular to jobs that are included in the BA's positive list. Even in cases where the priority check is still required by law (e.g. in the cases of Section 26 Paragraph 1 of the Employment Ordinance), the Federal Employment Agency's administrative instructions stipulate that the priority check is (unlawfully) waived.
2.2 Case groups priority check
In practical terms, the priority check is only carried out in the following cases according to the administrative instructions of the Federal Employment Agency:
Employment of students beyond the 120/240 days rule
Employment of specialty chefs
Employees in the cultural and entertainment sector and their support staff (Section 25 Employment Ordinance)
Employment at trade fairs and world exhibitions (Section 29 (4) Employment Ordinance)
Apart from these case groups, the priority test no longer has any practical significance in Germany.
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3. Exceptional cases priority check
Even if a priority check is applicable, this does not necessarily mean that a priority check must be performed. The following sections present the exceptions to the priority check .
3.1 Special requirements by employers
The first exception to the priority check is when the employer imposes very specific requirements . In this respect, a priority check is unnecessary if the job description specifies a rare requirement. According to the instructions of the Federal Employment Agency, this constitutes an exception to the priority check if there are special, objectively and factually justified requirements for the position that are related to the nature of the activity and the specific business interests of the employer. This could be the case, for example, if the position to be filled has verifiably exceptional requirements that privileged applicants generally do not have, and the specific foreign national demonstrably meets these requirements (e.g., an Arabic-speaking car mechanic or IT skills with a very specialized program).
3.2 Extension of a work permit
Another exception to the priority review is the extension of an existing work permit . If employment with the same employer of at least twelve months is to be continued, a priority review is no longer required for approval by the Federal Employment Agency ( Section 35 (5) of the Employment Regulations ). If the employment relationship is continued, only the working conditions need to be reviewed. This does not apply, however, if the working conditions change significantly (e.g., taking up a new position with the same employer).
3.3 Hardship cases
Finally, the priority check can also be waived in cases of hardship ( Section 37 of the Employment Ordinance ). Foreign nationals can then be granted permission to take up employment without a priority check if refusal of such permission would result in particular hardship. In these cases, the BA's approval can be granted without a priority check in order to avoid a disproportionate burden. This can particularly apply to foreign nationals who have already been residing in Germany for a long time and for whom a refusal would result in the third-country national having to leave Germany, and leaving the country would result in particular hardship .
4. Procedure for the priority check
To conduct the priority check, the Labor Market Admissions Department (AMZ Team) first contacts the Employer Service of the Federal Employment Agency (AG-S). If the AG-S determines that suitable preferential applicants are registered as job seekers, it notifies the AMZ Team within 48 hours. The AMZ Team then refuses to approve the employment of the foreign worker and offers the position to the suitable preferential applicant. If approval is denied due to the priority check and the application for a residence permit is subsequently rejected, the affected foreign national can file an objection and file a lawsuit. One of our lawyers would be happy to advise you on this matter.
Summary of this Page
The priority check is a key instrument for third-country nationals to gain access to the German labor market and protects the labor market from wage dumping. Even though it is rarely used in practice today, it remains relevant, especially for specialized occupations such as specialty chefs or student jobs. Employers should inform themselves early on about the current requirements and exceptions to the priority check to avoid delays in the employment process for international specialists. In complex cases or rejections, legal advice is recommended to ensure professional support during objection or legal proceedings, thus ensuring legally secure access to the German labor market.
