HERE YOU LEARN ...
… when you can convert your work permit as a foreigner into a permanent work permit
… when you can obtain a residence permit based on the unlimited work permit
… how to obtain a residence permit that does not require permission to change employers
… what the requirements are for unrestricted access to the labour market according to Section 9 BeschV
Written by:
lawyer
Publication date:
27.09.2024
Reading time
8 mins
Table of Content
1. Work in Germany without restrictions
2. Working without a special work permit (Section 9 BeschV)
3. Residence permit according to Section 9 BeschV
4. Requirements for unlimited work permit
4.1 Possession of a residence permit
4.2 Two years of work or three years of residence
4.3 Explicit admission to the labour market
5. Section 9 BeschV in practice
6. FAQ on Section 9 Employment Ordinance
1. Work in Germany without restrictions
For many foreigners, it is very interesting to finally no longer need a work permit in Germany and no longer have to apply for a change of employer. Applying for a work permit in Germany is a very complex process. In many cases, the processing of corresponding applications for a work permit or for changing jobs takes a very long time (see also our VISAGUARD article on processing times ). You can avoid this with the unlimited work permit in accordance with Section 9 of the Employment Ordinance.
In addition, full access to the labor market according to Section 9 of the Employment Ordinance can also constitute a separate reason for residence within the meaning of Section 19c Paragraph 1 of the Residence Act . If you can obtain an unlimited work permit, you can apply for your own residence permit on this basis (see below). Originally, Section 9 of the Employment Ordinance was only intended to simplify procedures based on positive integration into the labor market. In practice, however, the norm goes much further, as it can constitute a separate reason for residence.
2. Permission for any employment
If the requirements of Section 9 of the Employment Ordinance are met, you can pursue any kind of employment as a foreigner. The additional order "Any lawful employment permitted" will then be entered in your residence permit. It then no longer matters whether the employment is qualified or unskilled and whether your training is suitable for the desired profession. This type of work permit is actually only available in exceptional cases, for example for citizens of the "Best Friends States" (Section 26 Paragraph 1 of the Employment Ordinance) and for holders of an EU Blue Card.
A major advantage of the removal of work restrictions is not only that any activity is permitted, but also that permission to change employers no longer needs to be obtained . This permission is otherwise always required if the residence permit is for employment purposes (see Section 4a of the Residence Act). In practice, this leads to many problems, as the immigration authorities often do not make decisions in time. This then means that the job cannot be started (or can only be started late), which in turn can lead to a loss of salary or, in the worst case, even to dismissal.
3. Residence permit through unlimited work permit
Section 9 of the Employment Ordinance can not only be a reason for an unlimited work permit, but can also represent a reason for residence in its own right . If you are permitted to work without restrictions in accordance with Section 9 of the Employment Ordinance, you can apply for your own residence permit on this basis in accordance with Section 19c Paragraph 1 of the Residence Act (see, for example, BeckOK AuslR/Breidenbach Employment Ordinance Section 9 Rn. 1a and Offer/Mävers/Offer Employment Ordinance Section 9 Rn. 1, 2).
Many immigration authorities are not aware of this, and in most cases the authorities are not even familiar with Section 9 of the Employment Ordinance. However, even if they are aware of the norm, they do not know that a residence permit can also be issued on the basis of an unlimited work permit. This often leads to the immigration authorities issuing incorrect residence permits in these cases, which can sometimes have serious consequences, including illegal employment.
If you want to apply for an unlimited work permit, it may be advisable to hire a lawyer specializing in immigration law to enforce the law. This lawyer can explain the law to the immigration authorities so that the residence permit can be issued in accordance with Section 9 of the Employment Ordinance.
4. Requirements for an unlimited work permit in Germany
An unlimited work permit for Germany can be applied for in accordance with Section 9 of the Employment Ordinance if you have already received a work permit from the Federal Employment Agency (admission to the labor market), have a residence permit and have legally worked in an employment subject to compulsory insurance in Germany for two years, or have been staying in Germany for three years without interruption, either with permission, tolerated status, or with a residence permit. These requirements are explained below.
4.1 Possession of a residence permit
First of all, as a foreigner you must have a residence permit. Unlimited access to the labor market can therefore only be applied for if you already have a residence permit . This must also include fictitious certificates, as the arbitrary processing speed of the immigration authorities cannot determine whether or not you are entitled to it under Section 9 of the Employment Ordinance.
4.2 Two years of work or three years of residence
Furthermore, Section 9 of the Employment Ordinance requires that you, as a foreigner, have already worked in Germany for two years and are subject to compulsory insurance (pension, unemployment, accident, health and nursing care insurance) (Section 9 Paragraph 1 No. 1 of the Employment Ordinance) or that you have been living in Germany for three years without interruption, either with permission, tolerated status or with a residence permit (Section 9 Paragraph 1 No. 2 of the Residence Act). However, according to some lawyers, periods of lawful employment subject to compulsory insurance should only include those that also required approval from the Federal Employment Agency (i.e. not the job seeker visa for educational nationals (Section 20 of the Residence Act) or the subsequent immigration of spouses (Section 30 of the Residence Act) .
You must also note that the law does not count certain periods towards the residence and employment periods under Section 9 of the Employment Ordinance. In particular, previous residence periods cannot be counted if you left the country permanently and then re-entered the country (Section 9 Paragraph 2 No. 1 of the Employment Ordinance) or if you have previously been employed for a limited period of time. However, the time limit on employment is not to be understood as a time limit, but rather refers to the temporary employments under the Employment Ordinance (Sections 10 ff of the Employment Ordinance; see also Offer/Mävers/Offer Employment Ordinance Section 9, margin numbers 10-15). Study periods and periods under Section 6 of the Employment Ordinance (see Section 6 Paragraph 2 Sentence 1 of the Employment Ordinance), Section 24a of the Employment Ordinance (see Section 24a Paragraph 3 of the Employment Ordinance) and Section 26 Paragraph 2 of the Employment Ordinance (see Section 26 Paragraph 2 Sentence 5 of the Employment Ordinance) are also not counted.
Finally, with regard to the length of stay, it should be noted that according to case law, fictitious effects should not count if there was clearly no entitlement to an extension of the residence permit that was deemed to continue to exist (OVG Berlin-Brandenburg decision of 5 January 2015 – OVG 3 S 82/14, BeckRS 2015, 40488).
4.3 Explicit admission to the labour market
The final requirement for a residence permit based on an unlimited work permit in accordance with Section 9 of the Employment Ordinance is that you, as a foreigner, have already been admitted to the labor market once. According to the Federal Administrative Court, the term "residence permit" in Section 9 of the Employment Ordinance is to be interpreted narrowly. Section 9 of the Employment Ordinance does not refer to holders of residence permits that would entitle them to take up any kind of employment by law. Rather, the scope of application of the provision is only open if it is based on a residence permit "with a labor market authorization" (cf. BVerwG judgment of August 21, 2018 - 1 C 22.17 , NVwZ 2019, 417 paras. 24 , 25 ; VG München decision of May 19, 2020 - M 25 S 20.1456 , BeckRS 2020, 11261 , para. 29 ). This opinion of the Federal Administrative Court was recently confirmed again by the OVG Lüneburg (see OVG Lüneburg (13th Senate), decision of April 18, 2024 - 13 ME 31/24). However, the above opinion is not undisputed. Due to the clear wording (which does not provide for this restrictive interpretation), some argue that the term residence permit also includes residence permits that entitle the holder to work by law (see BeckOK AuslR/Breidenbach BeschV § 9 Rn. 2-4.1). If in doubt, you should consult a lawyer specializing in immigration law.
5. Section 9 BeschV in practice
In practice, foreigners and lawyers repeatedly encounter problems when dealing with Section 9 of the Employment Ordinance at the authorities. Most clerks are not familiar with Section 9 of the Employment Ordinance. Even if they are familiar with Section 9 of the Employment Ordinance, they do not know that it is possible to issue a residence permit in accordance with Section 19c Paragraph 1 of the Residence Act on the basis of Section 9 of the Employment Ordinance. In addition, immigration authorities are often reluctant to issue residence permits without the consent of the Federal Employment Agency. Even in cases where the clerks consider Section 9 of the Employment Ordinance to be relevant, they sometimes ask the Federal Employment Agency for consent.
When applying for Section 9 of the Employment Ordinance, it may therefore be advisable to consult a lawyer. You can find further information on this on our VISAGUARD service page .
6. FAQ
How long do I have to have worked in Germany to be able to work indefinitely?
You can work in Germany without restrictions if you have already been employed for two years and were subject to compulsory insurance (Section 9 Paragraph 1 No. 1 BeschV).
How long do I have to have stayed in Germany to be able to work without restrictions?
You must have resided in Germany for 3 years to apply for Section 9 BeschV (Section 9 Paragraph 1 No. 2 BeschV).
Is any previous stay sufficient for an unrestricted work permit?
No, to obtain an unrestricted work permit you must have held a residence permit that has been checked by the Federal Employment Agency. This means that you must have been admitted to the labor market. This is not the case with residence permits that legally permit employment (e.g. family reunification), since, for example, Section 30 of the Residence Act authorizes employment by law (Section 4a Paragraph 1 Sentence 1 of the Residence Act) and not by consent of the Federal Employment Agency. This restrictive interpretation of Section 9 of the Employment Ordinance is the case law of the Federal Administrative Court, but is not undisputed in the commentary literature due to the very broad wording of Section 9 of the Employment Ordinance.
Do I need a residence permit to obtain another residence permit in accordance with Section 9 of the Employment Ordinance?
Yes, Section 9 BeschV only applies to holders of a residence permit.
Is Section 9 of the Employment Ordinance a procedural norm or a residence permit?
Section 9 of the Employment Ordinance was originally intended to simplify procedures for the immigration authorities and the Federal Employment Agency. However, according to the legal doctrine of Section 19c Paragraph 1 of the Residence Act, Section 9 of the Employment Ordinance can also be issued as a residence permit.
Can all nationalities work without restrictions?
Yes, Section 9 of the Employment Ordinance is applicable to all third-country nationals. Through Section 9 of the Employment Ordinance, people of other nationalities can therefore achieve equal treatment with the case groups in Section 26 Paragraph 1 of the Employment Ordinance.
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Procedural instructions for staying in Berlin (VAB) to Section 9 BeschV
Literature: BeckOK AuslR/Breidenbach, 42nd Ed. 1.4.2024, BeschV, § 9 Rn. 1 - 12
Literature: Offer/Mävers, Offer, 2nd edition 2022, BeschV § 9
