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Expat Law
All necessary information about expat law and labour migration law
... if the Expat Law (labor migration law) is relevant for you
... whether you need a work permit for Germany
... how to obtain a work permit as a foreigner
... which activities you are allowed to carry out as a foreigner
... how to apply for a change of employer and what you need to do if you want to change jobs
HERE YOU LEARN ...
1. What is labor migration law?
Employment migration law is a separate area of law at the interface between employment law and migration law. Here you can find out what special features foreigners need to be aware of when working in Germany. The following explanations describe how you must behave towards the authorities (Federal Employment Agency, immigration authorities, foreign missions) if, for example, your employment contract has been terminated or you want to change jobs and what obligations to cooperate and provide information you have towards the immigration authorities. However, this article only deals with the necessary steps to take vis-à-vis the public authorities.
2. As a non-European foreigner, do I need a work permit in Germany?
In employment law for foreigners, the question is often whether a work permit is required at all if a foreigner wants to work in Germany. There are regularly major misunderstandings here, particularly on the company side, when it comes to business trips, home office and secondments. However, employment law for foreigners is also often difficult to understand for consumers and employees, as the regulations on promotions, changes of employer or work permits for students, for example, are complicated and confusing. Formal mistakes that are easy to avoid can quickly lead to high penalties (see below).
Basic rule: Non-European foreigners need a work permit to work
The question of whether foreigners need a work permit in Germany is basically easy to answer: every foreigner needs a visa or residence permit to be able to work in Germany . This also applies to foreigners who can enter Germany without a visa (e.g. US Americans, Canadians and British nationals). The only exception to this are European nationals. European citizens do not require a work permit or visa to work in Germany. All other non-European citizens usually require a residence permit that allows them to work in Germany.
The respective residence permit must specify the employer and the corresponding activity in the residence card (e.g. "Software Engineer at Company X"). Working without a residence permit that allows precisely this activity constitutes illegal employment. This applies even if only the job or job title is changed within the same company (e.g. in the case of a promotion). These strict regulations can quickly lead to very high fines and penalties for the employee and the employer.
In particularly serious cases and in the event of frequent repetition, the employee may be banned from entering and residing in the country and the employer may be prohibited from employing foreign nationals.
Exceptions from the employment prohibition
As is always the case in law, however, there are exceptions to the basic rule prohibiting the employment of foreigners without a residence permit. The most common exceptions are the so-called "non-employment fictions", which deliberately exclude some activities from the work ban. In practice, the business trip for employees of a foreign company is most relevant if the business traveler can enter Germany without a visa (e.g. US Americans, Canadians and British nationals) and is staying in Germany for less than 90 days. A business trip is deemed to be a business trip if you conduct meetings or negotiations in Germany for an employer based abroad, conclude contracts or monitor the implementation of a contract. This includes most foreigners who only come to Germany to represent their employer in negotiations and are received by German companies in this context. No work permit is then required. However, it should be noted that such business trips involve a major risk. As soon as the limits of the business trip are exceeded, it is automatically an illegal activity. The boundaries are often blurred, especially when it comes to consultancy services, so particular caution is required here. In case of doubt, a specialist lawyer for migration law should be consulted to assess whether the intended activities still constitute a business trip without a permit or whether a work permit is already required.
The permit-free activity for C-level employees (e.g. CEO and CFO) and managers or executives of a company is also very relevant in practice. These groups of people do not require a residence permit to work in Germany if the employment is carried out for a period of up to 90 days within 180 days[. However, whether a position is a C-level position is determined not only by the employment contract, but also by the powers of representation under company law. If there are any doubts here, it is advisable to apply for a Schengen visa and to disclose the scope of the power of representation to the embassy during the visa procedure. If the embassy then issues the Schengen visa, it can be assumed that no work permit is required (as Schengen visas are not usually issued with a work permit). A possible accusation of illegal employment can then be countered by the fact that the embassy also assumed that no work permit was required. This can exclude the so-called intent and thus criminal liability.
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As a result, it can be said that an employment permit is generally required if you want to work as a foreigner in Germany or employ a foreigner. This applies in any case if the foreigner does not hold a C-position and it is not a short business trip.
3. How do I get a work permit as a foreigner?
The work permit is generally issued by the Federal Employment Agency. However, no separate application needs to be submitted to the Federal Employment Agency for the permit (unless it is a case of prior approval), as the embassies and immigration authorities automatically forward the documents (namely the declaration of employment, the employment contract and the job description) to the Federal Employment Agency. The latter then issues the work permit directly to the application authority (internal approval by the authority), which includes the permit directly in the visa or residence permit (so-called "ancillary provision"). When applying for a visa, you will therefore usually not even realize that you are also applying for a work permit at the same time as the visa.
4. What activities can I carry out with my work permit?
The exact activities covered by your work permit can be found on the residence card (electronic residence permit (eAT)) or on the so-called "supplementary sheet". It usually states which position you are permitted to hold at which company (e.g. "Software engineer at company X"). You are not allowed to work in any other jobs than those listed on your residence permit. This applies even if you only change position within the company (e.g. in the event of a promotion).
An exception to this rule is the change of employment with the EU Blue Card. Since the reform of the EU Blue Card in November 2023, permission from the immigration authority is no longer required for a holder of an EU Blue Card to change jobs . As an EU Blue Card holder, you therefore no longer need to submit an application to the immigration authority; you simply need to inform the immigration authority of your change of job. Although the immigration authority can object to the change of job (if the requirements for the issue of an EU Blue Card are no longer met), it is not to be expected that the completely overburdened immigration authorities will make extensive use of this option.
5. Change of workplace
In principle, residence permits that allow gainful employment are only valid for one employer. If an employer is entered in the residence title in the residence permit or in the work visa, employment may only be carried out for this employer. Self-employment is also not permitted.
In order to change employers, you generally need the approval of the foreigners authority. This must be applied for at the relevant immigration authority. The only exception to this rule at present is a change of employer with an EU Blue Card.
Change of employer with the EU Blue Card
A special feature of the EU Blue Card is that you are no longer tied to one employer after one year (two years until November 18, 2023). After the 12 months have expired, the employer may be changed without the permission of the immigration authority if the new employment also fulfills the requirements of the EU Blue Card (i.e. in particular the necessary salary threshold of EUR 43,800 (2023) is reached). However, it should be noted that the immigration authority must still be informed of the change of employer.
Since the reform of the EU Blue Card on 18.11.2023, it is also new that the immigration authority may theoretically prohibit a change of employer in the first 12 months of holding the EU Blue Card, but no longer has to approve a change of employer. While it was previously prohibited in principle to change jobs until permission was granted by the foreigners authority (reservation of permission), the legislator has now reversed this and generally permits a change of job until the foreigners authority prohibits it (reservation of prohibition).
As a result, with regard to the change of job for holders of an EU Blue Card, it should be noted that since the reform, the foreigners authority only needs to be informed. This can be done in any conceivable way (e.g. online contact form, email, post), as there is no specific form for this. The foreigners authority can then prohibit the change of employer, but as long as it does not actively do so, the change of employer is permitted. However, it should be noted that these regulations only apply to the EU Blue Card.
Change of employer with a work visa
If you do not hold an EU Blue Card, you must apply to the immigration authority for permission to change employer. The foreigners authority will then regularly check with the Federal Employment Agency whether the requirements for changing employer are met. These requirements differ depending on the residence status and the type of employment. In principle, however, the main focus of the official examination is whether all working conditions in accordance with German employment law are complied with (salary level, working hours, vacation, reliability of the employer).
Documents for the change of employer
When applying for a change of employer, at least the following documents must be submitted to the Immigration Office:
Declaration on the employment relationship
The declaration of employment must be completed and signed by the employer. The human resources departments in larger companies are usually familiar with the form and know how to fill it out.
Job description
The job description should contain a not too brief description of the activities to be performed and the requirements for the position. The authorities will use the job description to check whether your qualifications are suitable for the job (so-called appropriateness test).
Employment contract
The employment contract must also be submitted. The contract is used to check the legality of the working conditions.
Further documents
As a rule, the above documents are sufficient to apply for a change of employer. However, depending on the foreigners authority, further documents may be required (e.g. registration certificate and passport). It is therefore advisable to check the homepage of the relevant immigration authority to see what other documents the authority requires.
The required documents for the Berlin, Frankfurt am Main and Munich immigration authorities can be viewed here, for example:
- Documents for change of employer in Berlin,
- Documents for change of employer in Frankfurt am Main,
- Apply for documents for change of employer in Munich.
Where and how do I apply for a change of employer?
In principle, the application for a change of employer is not subject to any particular form. This means that the application can be made in any way imaginable (theoretically even by telephone). In practice, however, it is of course advisable to use a method that provides proof of the application. Most immigration authorities now allow applications to be submitted online using the relevant contact form. In the respective contact form, there is a selectable option "Apply for change of employer". You then simply need to enter your personal details and attach the documents mentioned as a scan or photo.
The online portals for applying for a change of employer at the major immigration authorities (Berlin, Frankfurt am Main, Munich) can be found here:
- Apply for a change of employer in Berlin,
- Apply for a change of employer in Frankfurt am Main,
- Apply for a change of employer in Munich.
When using the online portals, you should make sure that you receive a confirmation of receipt by e-mail. In case of doubt, this serves as proof that you have actually applied for the change of employer. Proof of the date of application can be helpful, for example, if you want to instruct a lawyer to enforce your application against the immigration authorities. In this respect, after three months, a lawyer specializing in migration law has the option of filing a lawsuit due to the foreigners authority's failure to act (so-called action for failure to act). However, it must then be proven in court that more than three months have passed since the application was submitted. The confirmation of receipt is necessary for this.
Legally, there is no obligation to use the online portals. The change of employer can also be submitted in any other way (e.g. by email or post). In practical terms, however, most immigration authorities have switched off their public e-mail addresses since the introduction of the online portals.
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