2. Work permit for foreigners

2.1 Work permit as a condition of the residence permit

Illegal or even criminal conduct can be avoided if the human resources department staff know what to look out for and the team members are trained accordingly (e.g. through in-house training).

The basic principle of employing foreigners is relatively easy to understand: According to Section 4a Paragraph 3 Sentence 1 of the Residence Act , every residence permit must indicate whether working is permitted and whether the exercise of employment is subject to restrictions. In addition, restrictions imposed by the Federal Employment Agency on the exercise of employment must be included in the residence permit. In other words: every residence permit indicates whether and to what extent a foreigner is permitted to work . The relevant provision can be entered either under “additional provisions” or on the so-called “additional sheet”.

In order for the foreigner to be allowed to work in your company, one of the following additional conditions must be entered in the places marked in red in the picture:

"Take up gainful employment"

The foreigner can do any kind of work or be self-employed. The foreigner can therefore be employed in any position in the company without any problems. This is usually the case with family reunification and the employment of nationals from the “Best Friends States” (especially the USA and UK). The State Office for Immigration (LEA) in Berlin also issues Blue Cards, usually with the additional condition “gainful employment permitted”.

“Employment as ... at ... allowed”

The foreigner may only work in the position specified in the additional provision at the company specified in the additional provision (so-called employer commitment). Activities other than those specified in the additional provision may not be carried out. This also applies in the case of a promotion and changes in the company form, which is why the work permit must also be renewed in these cases. Employment with employer commitment is also relevant in the case of a change of employer or when hiring new employees, since the residence permits of new employees are usually still tied to the old employer. In this case, too, a new work permit must be applied for. Most skilled worker titles (in particular Section 18b Paragraph 1 of the Residence Act and the EU Blue Card) are issued with the additional provision “employment permitted”.

“Self-employment allowed”

This additional provision only allows self-employment (e.g. for freelancers and entrepreneurs). Employment of foreigners with this additional provision is not permitted. Although employment as a freelancer (i.e. on the employee's account) is possible, the risk of bogus self-employment should always be taken into account.

“Employment not permitted”

The foreigner may not be employed with this additional condition. Many training titles (e.g. §§ 16a, 16b AufenthG) have this additional condition.

2.2 Which employees do not need a work permit?

2.2.1 Work permit for EU citizens

However, not all foreigners can produce a work permit, as not all foreigners require a work permit . This is especially true for EU citizens. European citizens do not require a work permit due to European freedom of movement, as the Residence Act does not apply to EU citizens at all (Section 1 Paragraph 2 No. 1 of the Residence Act). European citizens do not receive a permit either (even if they explicitly apply for a work permit). The State Office for Immigration (LEA) in Berlin issued “declaratory” residence cards to EU citizens until recently, but this practice has since been discontinued. For European citizens, it is therefore sufficient to have a copy of the passport on file as proof of a work permit.

2.2.2 Work permit in the case of non-employment fictions

A work permit is also not necessary if the activity carried out by a foreigner falls under the so-called “ non-employment fiction ”. These non-employment fictions refer to cases in which no gainful employment is “fictitiously” carried out, although the activities carried out would actually fall under the definition of gainful employment.

There are the following non-employment fictions:

• Activities of senior managers and C-level members (Section 3 BeschV),

• Activities within the framework of work delivery contracts (Section 19 BeschV),

• Business travellers (§ 16 BeschV),

• in-company training (Section 17 BeschV).

No work permit is required for these activities. There are numerous other non-employment fictions, although some of these are very specific to individual cases. If in doubt, you can seek advice from a lawyer specializing in labor migration law.

2.2.3 Employment of students

Another special feature is the employment of foreign students. Students are allowed to work a total of 120 days or 240 half days per year (Section 16b, Paragraph 3 of the Residence Act). In order to avoid "sliding into illegality" with the work, the student's working hours should be recorded precisely in the personnel file. The days that can be counted do not include times when the student has carried out a student part-time job or (mandatory) student internships.

The 120/240 day rule is not only relevant for students to be employed during their studies, but also afterwards. It is therefore more common for foreigners who have completed their studies in Germany to apply for a job and then start working before their residence permit has been changed. In these cases, the 120/240 day rule still applies, even though the studies have been completed. A work permit or a fictitious certificate for early employment (Section 81 Paragraph 5 of the Residence Act) must therefore be applied for.