The German government seeks to promote the prospering of the German economy as finding skilled employees from the German labour market becomes more difficult for many employers, especially in the industries of nursing care (the care provided in hospitals and for elderly people), IT, and in the craft sector. While stressing the importance of acquiring domestic employees, the government’s proposed solution for these labour market difficulties is an easier immigration process for skilled workers from non-European Economic Area (EEA) nations (foreign workers).
Current Legal Situation
Under current law, the Federal Employment Agency carries out a so-called priority check as part of a work permit procedure (if no exemption applies; e.g., for high qualified workers or blue card holders) that is conducted by the Immigation Authority. The purpose of such priority check is to ensure that vacancies are filled with domestic or EEA member state workers (national workers). Thus, the Federal Employment Agency has first to check whether unemployed national workers are available for the position before giving its consent for a work permit.
In order to counter the shortage of qualified workers, the requirement of conducting a priority check will be waived except in such cases where it is explicitly mentioned in the statute, see section 39 (2) of the German Residence Act. According to the newly implemented sections 18a and 18b and the amended section 39 of the German Residence Act, this priority check will no longer be necessary in the event that foreign workers work under the same working conditions as national workers. The amendments of the Residence Act align the status of workers who completed vocational training with persons who completed an academic degree. In other words, under the amendments, foreign workers will be already considered as skilled workers within the meaning of the German Residence Act if they can provide evidence of completing a vocational training or of an academic degree.
The foreigner’s qualifications will in future be checked for comparability with national qualifications in a so-called recognition procedure. The new regulations will mostly become effective as of March 1, 2020.
How to Hire Foreign Workers in Germany under the New Regulations
A German work permit usually will be granted to a foreign worker once prior consent of the Federal Employment Agency is obtained. Such consent will be given if several conditions are met, including that: the foreign worker will work under the same working conditions as national workers; the occupation is considered as requiring the qualification of a “skilled worker;” the qualifications of the foreign worker are considered as equal to the required qualification of a national worker; employment was offered to the foreign worker; and the applicable requirements of the German Regulation on the Employment of Foreigners (Beschäftigungsverordnung) are met. This regulation specifies the requirements under the German Residence Act and states conditions under which foreign workers can be admitted to the German labour market. If proof of all applicable requirements is given, the Federal Employment Agency will give its consent and the foreign worker may be employed in Germany.
In order to speed up the procedure for obtaining consent from the Federal Employment Agency to fill a particular vacancy, the employer may carry out a preliminary consent procedure before a foreign worker applies for a residence permit. To do so, the employer has to send a job description indicating the required qualifications for the vacant position (e.g., special academic degree or vocational training) to the Federal Employment Agency. With the preliminary procedure, it is not necessary to provide the Agency with any details about the applicant. Depending on the job description, the Agency will either give its preliminary consent or reject the application.
Compliments of Littler Mendelson, a Member of the EACCNY