In Germany, new measures relating to immigration of skilled workers (Fachkräfteeinwanderungsgesetz) took effect on March 1, 2020. Due to the ongoing Covid-19 crisis, labor migration and new actions are currently not receiving much attention. However, the new law will be very relevant after the travel restrictions are lowered. This is especially so, because the aim is to overcome the shortage of skilled workers currently facing Germany, especially in the medical care sector, but also with regard to specialists in the scientific and technical professions. The new law expands the legal framework for qualified professional migration from non-EU countries to Germany for the purpose of doing this work.
This new law does not provide a completely new immigration system. Instead, he revised and supplemented the existing regulations. The novelty of this law includes a broader definition of skilled workers and accelerated application procedures. We believe that at least some changes will be suitable to facilitate the migration of skilled workers to Germany. However, it is still questionable, in particular, whether the change will lead to accelerated and highly needed immigration procedures that currently require several months in certain areas.
Major Changes Introduced by the New Law
Access to the German labor market is relatively easy for individuals with a German bachelor’s degree (or with a recognized or comparable degree). With the new law, individuals with German vocational training qualifications (or with recognized or comparable qualifications) are now also considered skilled workers, thus simplifying access to their German labor market. With the available job offer, each skilled worker can now enter and work in Germany for up to four years provided that a bachelor’s degree or vocational training qualifies skilled workers for the particular job in question. In this context, the Federal Employment Agency will no longer carry out “priority checks” to check whether there are German or European Union applicants available for certain jobs. Again, this will simplify and speed up labor market access for foreign skilled workers.
In the information and communication technology sector, a residence permit can be granted more easily if the foreigner has substantial practical professional knowledge. In this case, formal qualifications as skilled workers (with a German bachelor’s degree, recognized or comparable, or vocational training qualifications) will not be needed to benefit from the benefits of this new law.
Under special conditions (in particular, certain levels of language skills and guaranteed proof of livelihood), skilled workers are permitted to enter Germany for a period of up to six months to find work, that is, even without a job offer. During this period, job seekers can also do trial work for up to ten hours a week with the aim of entering into employment.
Additionally, in cases where foreigners do not have a German bachelor’s degree or German vocational training qualification (and there are no comparable or recognized titles or qualifications), the option to enter Germany for the purpose of an additional qualification step and for the recognition of a degree or qualification has been added by new law.
Changes That Affect the Company Directly
In the past, a residence permit application had to be submitted by a foreigner directly. The law has now added the possibility for employers to apply for a residence permit on behalf of foreign applicants (the application procedure of the employer is subject to an additional EUR 411 fee). The implementation of this fast track procedure aims to facilitate cooperation between employers and immigration authorities and to shorten the duration of application procedures.
In addition, residency permits no longer need to be amended in cases where the transfer of labor to other entities by legal means (TUPE) or where the employer changes the legal form. Prior to new actions, such work changes always require additional administrative procedures to change existing residence permits.
It should be noted that while most changes aim at simplifying and accelerating the immigration process, there is now also a new obligation for employers to notify the immigration authority when employment relations that require a residence permit expire. Until now, employers were only required to keep a copy of their residence permit for the duration of their employment. If the new notification obligation is removed, late or incorrect, an administrative fine of up to EUR 30,000 may be imposed. Notification must occur within four weeks of the employer receiving knowledge of termination of employment.
Expected Problems and Difficulties in Practice
We believe that such actions will simplify and increase labor immigration to Germany. However, in our view, the action did not achieve its goal and still leaves room for further improvement.
In particular, it is questionable the extent to which these actions will result in shorter application procedures. While the law includes an optional implementation of a new centralized immigration authority to handle new fast-track procedures, immigration authorities currently have poor resources. Furthermore, such a centralized immigration authority will only be able to handle certain parts of the immigration process.
Finally, immigration authorities will still require that all applications and supporting documents be submitted in German. This regularly results in additional costs and time for required translations. Maintaining these German language requirements in an increasingly global labor market does not really meet German needs to simplify access of quality workers to the German labor market.