Employment contracts for foreigners
All information on the necessary content for employment contracts with foreigners.
Here you learn ...
what necessary content employment contracts must contain
what the Evidence Act (NachwG) is and what it regulates
important special regulations for employment contracts with foreigners
Table of Content
1. Employment contract with academic professionals
2. Necessary content (NachwG)
3. Special clauses for foreigners in the visa procedure
4. Conclusion
1. Employment contract with academic professionals
An employment contract for foreign skilled workers in Germany is subject to the same legal requirements as for German employees. However, there are specific legal requirements that companies must be aware of, as there are some special considerations to be made when it comes to employment contracts for foreign skilled workers. This applies particularly in the case of secondments or when the skilled worker has not yet entered Germany (i.e., during the visa process). In this article, you will learn everything you need to know about the necessary components of an employment contract with foreign skilled workers.
When drafting employment contracts for foreign skilled workers, special attention should be paid to ensuring that the employment contract meets all legal requirements . The employment contract must generally be submitted to both the embassy or immigration authority, as well as the Federal Employment Agency (BA). If important components of the employment contract are missing, the Federal Employment Agency may refuse approval . Furthermore, embassies tend to assume that the application is implausible (i.e., forged) when the employment contract is flawed.
2. Necessary content (NachwG)
The necessary contents of an employment contract are primarily derived from the Evidence Act (NachwG) . According to the Evidence Act, the employer must set out the essential contractual terms of the employment relationship and provide them to the employee (Section 2 (1) NachwG). This is usually done by including the essential terms of employment in the employment contract.
According to the Evidence Act, at least the following components must be included:
the name and address of the contracting parties,
the date of commencement of the employment relationship,
in the case of fixed-term employment relationships: the end date or the foreseeable duration of the employment relationship,
the place of work,
a brief characterization or description of the work to be performed by the employee,
Duration of the probationary period,
the composition and amount of remuneration and its due date and method of payment,
the agreed working hours, agreed rest breaks and rest periods,
if agreed, the possibility of ordering overtime and its conditions,
the duration of the annual vacation,
the procedure to be followed by employer and employee when terminating the employment relationship, at least the written form requirement and the deadlines for terminating the employment relationship, as well as the deadline for filing an action for protection against dismissal
a general reference to the collective agreements, works agreements or service agreements applicable to the employment relationship
Violations of the Evidence Act can be punished with a fine of up to €2,000 (Section 4 (2) of the Evidence Act). However, it is unusual in practice for the Federal Employment Agency to refuse approval due to a violation of the Evidence Act (although theoretically not impossible).
3. Special clauses for foreigners in the visa procedure
When employing international specialists, it is crucial to draft a legally secure employment contract to avoid later legal conflicts. It is particularly advisable to include a suspensive condition in the employment contract during the visa process. This clause explicitly stipulates that the employment relationship only begins upon issuance of the required residence permit and actual entry into Germany . This is because visa applications are often delayed, and the contractually agreed start date may be before the specialist enters the country. Without such a provision, uncertainty arises regarding the obligation to pay remuneration and the start of employment.
Including a condition precedent creates legal certainty for both parties and prevents companies from inadvertently falling into payment default or starting employment subject to social security contributions even though the skilled worker has not yet been authorized to enter the country. Employers should therefore always ensure that this clause is included in the employment contract when recruiting international specialists. A formulation such as: "This employment relationship only begins upon the issuance of the required residence permit and the entry of the employee into Germany (condition precedent)" is recommended. This ensures that the employment relationship only becomes effective once it is legally permissible and that the contractual obligations of both parties are clearly defined. Regardless of the condition precedent, problems regularly arise in practice when drafting secondment contracts or secondment agreements. We have written a separate VISAGUARD article on the drafting of secondment contracts .
Summary of this Page
A legally sound employment contract for foreign skilled workers is a key component of a successful visa process and international recruitment. Employers must ensure that the employment contract not only complies with the legal requirements of the German Evidence of Employment Act (NachwG), but also meets the specific requirements of immigration law. A suspensive condition – which clearly stipulates that the employment relationship only becomes effective upon visa issuance and entry – provides legal certainty and protects against unnecessary risks. Incorrect contracts can lead to delays in the visa process or even rejection. A sound, fully drafted employment contract is therefore not only legally necessary but also a key to the success of skilled immigration.
