Employer obligations when employing foreign workers in Germany
The shortage of skilled workers is increasingly putting the focus of German companies on labor migration. If the number of appropriately trained employees in Germany is too low, looking abroad can help. Increasingly, German employers are recruiting their employees from EU/EFTA and third countries.
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Shahroch Taleqani
Residence Law Obligations of Employers of Foreign Employees in Germany
But what do employers in Germany have to observe with regard to the right of residence if they want to hire and employ foreign employees? What visas and/or residence permits are required? And what consequences does the (unknowing) illegal employment of foreigners have for employers?
Nationals of EU /EFTA countries
Even without German citizenship, the situation is very simple for citizens of EU member states as well as for citizens of member states of the European Free Trade Association ( EFTA) such as Iceland, Liechtenstein, Norway and Switzerland. They are allowed to enter Germany without a visa and can work in Germany without any complications.
Third-country nationals (foreigners from non-EU member states or non-EFTA countries)
The situation for foreigners from so-called third countries, on the other hand, is more differentiated. In order to enter Germany and become gainfully employed, they generally require a visa or a residence permit.
Exceptions
But there are also exceptions. Citizens of so-called privileged states can enter the country without a visa and subsequently apply for the required residence title in the Federal Republic.
The privileged states include Australia, Israel, Japan, Canada, Republic of Korea, New Zealand, United Kingdom (UK), Northern Ireland and the United States of America (USA).
Further exceptions are regulated by § 30 BeschV, for example, for business travelers, executives, scientists, researchers and interns.
Employer obligations
Check, keep, notify in good time: The obligations under residence law for employers, clients or purchasers of self-employed services are governed by Section 4a (5) of the Residence Act.
Accordingly, anyone who employs a foreigner in the territory of the Federal Republic of Germany has the following obligations:
- Review
- whether a foreigner is to be employed or commissioned to perform other remunerated services or work,
- whether the foreigner is in possession of a residence title that entitles him or her to work in Germany,
- whether a prohibition or restriction in this respect is to be
- Retention of a copy of the currently valid residence permit in electronic or paper form for the duration of the employment relationship.
- Notification to the competent immigration authority in the event of premature termination of employment within 4 weeks of knowledge.
Legal consequences of the employer's failure to comply with its obligations
The employment of employed foreigners contrary to the aforementioned regulations and obligations of Section 4a, Paragraph 5, Sentence 1 of the Residence Act may be sanctioned with a fine of up to EUR 500,000.
In the event of illegal employment in Germany, the foreign employee also faces sanctions: The person concerned may be subject to market access restrictions, fines or entry bans.
How can the liability risk be avoided?
Hiring lawyers can make sense for employers of foreign employees in many ways. By hiring specialized lawyers, they can significantly reduce the risk of liability. For example, by helping them to select and check the right residence title for the foreign employee or, for example, to draft the employment contract with German residence law in mind.
RT & Partner's attorneys assist employers and employees in compiling and submitting the required documents. This ensures that the deployment of personnel is legally secure and that the procedure runs smoothly and the new employee is deployed quickly.
