Fachkräfteeinwanderungsgesetz:

A beginner´s guide to the new German immigration law

27.02.2020

As you might have heard, Germany will soon receive a new immigration law: The new packet of immigration regulations called Fachkräfteeinwanderungsgesetz (Law for the immigration of professionals) will come into effect on Match 1st, 2020.

With the goal of both attracting talent to Germany as well as handling the shortage of professionals, especially in the fields of technology, information and communication, the new law presents new regulations, aimed to regulate work immigration in the way which will best benefit all parties involved.

The goal of this short article is to provide you with a brief overview of your responsibilities as employers, as well as keep you updated with the newest regulations, in order to assist you to get used to our new reality with regards to obtain work permits for your international employees.

It is important to state, that this list is (still) provisional, since the new law and regulations did not come into effect yet. Therefore, we did not manage to gather any working knowledge in the practical implementation and execution level, so there could be changes in the operative level.

Responsibilities of employers

The law shifts some responsibilities to employers (§4a Abs. 5 Fachkräfteeinwanderungsgesetz). This means, that from now on, employers must make sure to keep three simple guidelines:
 

1. Check the documents of employees and make sure that all employees posses valid and adequate work permits.

2. Keep copies of residence and work permits of employees throughout the entire time of employment. Those copies could be kept either in paper or electronically.

3. Inform the authorities (Ausländerbehörde/ Landesamt für Einwanderung) in case of early termination of employment contracts. The notice must be given at the authorities within 4 weeks from the date of termination.

Our recommendation would be to use your favorite tool in order to keep the required information about international employees on visas in one place, which will allow you to also assist them with visa extensions when the time comes (and so, to make sure that everyone is working legally).

Additional regulations worth knowing:

Expats MUST have a valid work permit in order to start working

Even though the new immigration law and regulations are supposed to make it easier to hire international talent, the regulation about the need of a work permit in order to start a job did not change: This means that one must have an adequate work permit in order to start working (except for exceptional cases).

Therefore, you must make sure that your new hire has an adequate work permit before they start working for your company.

Changes in Blue Card eligibility:

In addition to the salary threshold and recognized education requirements, there is a new eligibility-requirement, which is: working in one´s field of studies. This means, that software developers who have studied social sciences, for example, will probably not be eligible for Blue Cards anymore.

Our recommendation in this regard is to never talk about Blue Cards with your candidates, since Blue Card eligibility is complex, now even more than ever, and since we do not want to have the Blue Card as a promise we cannot keep.

New regulations for work visas

It seems like the requirement of working in the field of studies will accompany us also to work permit applications in general. It is still too soon to understand how work permit applications will be effected by this requirement (since, as we know, reality tends to be more complex), but I am sure we will figure out the way, as we always have.

On the bright side, the law does introduce a special regulation for IT-personnel, which should make it easier to hire software developers and technical specialists who do not have an (adequate) academic diploma, as long as they could prove 3 years of professional experience, and as long as they keep a certain salary threshold (50K for 2020) and… speak B1 level of German (§6 Fachkräfteeinwanderungsgesetz).

Retroactive auditing of work permit applications

Additionally, § 42 Fachkräfteeinwanderungsgesetz give the Federal Employment Agency (Bundesagentur für Arbeit) the right to review old work permit applications with the purpose to check retroactively if the work conditions stated on the employment contract and work permit application were kept.

In cases that the employment conditions were not kept (e.g. reduction of salary, due to part-time work, for example), employers might be sanctioned. It will be possible that future work permits will not be approved in a situation like this. Therefore, my recommendation is to consult a relocation specialist regarding changes in the work conditions of your international employees, in order to find the best solutions for specific cases. 

There are many more regulations that have to do with expedited processes, students and professional training. I will continue to update about those new regulations and their implementation in practice.

And there are also some more materials I prepared on this topic, such as a more detailed guide and an informative article for employees, talent and expats

Do you have any questions? If so, my office will be happy to help! Please feel free to contact us.

CONTACT 

Stargarder Straße 35
10437 Berlin​​

michali@michaliberlin.com

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