The quick and reliable way to a work permit, for both posting-activities and the EU Blue Card: Our lawyers support your company and employees in the process for obtaining visas and work permits.

The law firm Eisner & Dwyer is one of the leading providers of consulting and support services in connection with the temporary assignment or long-term employment of skilled foreign workers in Germany (EU Blue Card, visas and work permits, posting).

Our clients are mainly large and medium-sized enterprises for whom reliable and prompt employment of skilled foreign workers in Germany is of prime importance.
There are two prerequisites under immigration law so that a foreign worker can be employed at a German company or customer:

Identification of the type of employment or assignment and, related to this, the choice of the right work permit for the type of employment

Careful preparation of all documents and efficient handling of the visa and immigration process.

Our service comprises advising and supporting companies in both fields.

The EU Blue Card and how it differs from other work and residence permits

The EU Blue Card

As you may know, Germany adopted the European Directive on the conditions of entry and residence of third-country nationals for the purpose of highly qualified employment (2009/50/EC) in August 2012 and, in line with its requirements, introduced what is called the Blaue Karte EU, or in English the EU Blue Card.
The aim of the EU Blue Card is to simplify and speed up hiring of highly qualified foreign employees. In formal terms the EU Blue Card is an independent residence permit that differs from other residence permits mainly in that only the criteria of “qualification and salary” have to be examined to assess whether the immigration authorities consent to a person entering and working in the country. The salary limits are defined by Section 19a (1) No. 3 of the German Residence Act (Aufenthaltsgesetz) and, when the card was introduced, were €36,192 for occupations where there is a shortage of skilled workers (“bottleneck occupations”) and €44,800 for other vocations.

A further advantage of employment with an EU Blue Card is to facilitate the consulates and authorities to take quicker decisions on applications. However, the applications do not always run as quickly as intended and it is also important to know that the EU Blue Card is not suitable as a work permit for every type of assignment. For example, a vital criterion for obtaining an EU Blue Card is for the applicant to submit with his or her visa application a contract of employment with a company based in Germany or German business establishment of a foreign company. Alternative residence permits can and must be used where an employment relationship in Germany is not to be established.

Alternatives to the EU Blue Card (e.g. in case of employee-posting)

As said above, the EU Blue card requires the establishment of a German employment contract and can therefore not be applied for and issued if the foreign employee’s contract of employment in his or her native country is to remain in effect during his/her stay in Germany and the employee is posted there merely for a short period of time or longer. Depending on the circumstances it is necessary, for example, to apply for a work permit as prescribed by Sections 27 or 28 of the German Employment Ordinance (which in particular plays a major role for postings) for such postings or similar cases, in which even certain levels of qualification must be achieved. This type of posting is therefore particularly relevant for IT experts.

Alternatively, the assignment may constitute a staff exchange in accordance with Section 31 of the German Employment Ordinance, which usually requires the person to be employed at an internationally operating company. Other approaches can be taken in response to special circumstances. Most of these examination procedures not only entail inquiries to be made with the immigration authorities, but also the involvement of the German Federal Employment Agency (now the Central Placement Office (ZAV)), which has the obligation to look at each case to determine whether the requirements for granting of the permit are met and – where necessary – the employment is compatible with the needs of the German labour market.

There are different requirements for work permits, depending on the purpose of the employment; however, a common aspect of all work and residence permits is that the employee must receive adequate compensation during his or her stay in Germany. That may also have to be proved later (e.g. as payslips, etc).

We will be pleased to advise you on the existing possibilities as to the visa that is suitable for your concrete case. Thanks to our many years of experience in this field, we have excellent contacts to the immigration authorities involved, consulates worldwide and units at the relevant employment agencies and so can assist in conducting unusual application processes. In this regard, one of our goals is to enable our clients to assess as early as possible, in particular in relation to applications where there is the chance a permit may not be granted, whether the application has a chance of success, enabling an ideal planning of the project and coordination with the client.

Family reunification and posting

Apart from the above-mentioned work permits, there may also be other circumstances entitling persons to residence. Examples here are family reunification or the possibility of companies posting employees to Germany for business meetings or training. However, a key factor in the application’s chances of success is for the company to be well informed in advance and to take the right path from the outset. It is also important for the future employee to be given proper briefing and guided through the visa process:

After all, if an applicant submits an incorrect application to the consulate or incorrect or inadequate documents, it is likely that the application will be rejected (which is very annoying after 10 to 12 weeks’ wait).
Moreover, if a visa is nevertheless granted, the company is bound to the details provided in the visa application after the person enters the country. For example, a residence permit granted on the basis of an application for an EU Blue Card cannot be subsequently used as the basis for a posting. That means an application that is not prepared in a correct manner could make the employment significantly more expensive than intended (unnecessary payment of social security contributions, exclusion of daily allowances, etc.) or even impossible.

Our task is therefore not just confined to advising a company in preparing and conducting the assignment and choosing the right residence permit for the concrete purpose. Apart from this we also see it as our obligation to accompanying the employee through the entire application process (from application for a visa to collection of the residence permit after entering the country), in order to guarantee a smooth processing from A to Z.

Diligent accomplishment of the visa process

Apart from choosing the correct legal basis for residence, a crucial factor for most companies is rapid completion of the immigration process. As already mentioned, identifying, which work or residence permit is appropriate to enable the employee’s stay in Germany is not only a key criterion for the visa application’s success, but also has an influence on when the employee can initiate his employment in Germany.

Depending on the visa/ intended residence permit, different documents and proof must be submitted: To give an example, a contract of employment in Germany must be furnished along with an application for an EU Blue Card, whereas the contract of employment with the company in the employee’s native country, along with confirmation of employment from the German company or German part of it, must be submitted in the case of a posting or deputation. The greater the attention paid to preparing the documents, the fewer queries and discussions are required and the sooner a decision by the authorities can be expected.

Apart from advising our clients on the preparation and drafting of the documents (employment contracts, posting and/or deputation agreements, letters of invitation, etc.), we also support them by actively contacting the officials and authorities in Germany, who are handling the individual case in order to speed up the process and potentially optimize the process. Thanks to our excellent contacts with the consulates and public authorities involved (in Germany: the Federal Office of Administration, the immigration authorities and the Employment Agency), we can keep an eye on your application processes from the outset and intervene immediately if there are delays on the part of the authorities or, if necessary, subsequently submit information or documents, thereby ensuring success.

Whereas the consulates state that most applications take 8 to 12 weeks to process, by implementing the processes as described above (and with your assistance), our lawyers are in the position to dramatically speed up the process. We can usually inform our clients that a visa or permission to enter Germany has been granted just 3 to 4 weeks after the process was instigated. This success is also related to the fact that we submit the application documents in parallel to the visa application in Germany, so the German authorities are also aware of the background from preliminary discussions and to give them a direct contact in our law firm for any further queries. It is also important for the company to know how the application process is coming along. That is why we not only report personally to our clients, but also give them access to our online database to view the status of the process and, if necessary, inform their own customers. Clients are also notified of important changes in the process by means of automatically generated status e-mails.

Support in other visa processes

Apart from the above-mentioned visa processes relating to employment, the firm Eisner & Dwyer also provides support in obtaining other residence permits, such as applying for business or training visas or for family reunification. Here, too, ensuring the success and speed of the immigration process is our paramount objective. In particular as regards family reunification, the goal is to ensure that immigration is as little hassle for the family members as possible, for example by gaining exemption for them from the obligation to take part in a German course as far as legally possible.

Posting of employees to non-EU countries (van der Elst posting)

In particular international companies regularly need to post employees in Germany to customers or projects abroad. That not only affects German and European employees, but also the case where a non-EU national is employed in Germany, holding a German work permit, and requested to be posted abroad. Deputing foreign nationals within Europe needs to be processed as a so called van der Elst posting, which was developed by the European Court of Justice and is named after the person who brought the original case.
With a van der Elst allowance or visa (which is needed depends on the individual case), a non-EU national employed in an European country can be assigned elsewhere within Europe without needing an additional work permit for the country he/she is to be assigned to. That means, for example, that a Japanese or Indian employee with a German work permit can be posted by the German company to a customer in the Netherlands or Spain – even for a lengthy period of time.

However, you should note that such postings are subject to strict reporting obligations and may have to be applied for well in advance. A visa may also be needed for the country to which the employee is to be assigned. However, the European Court of Justice has in the meantime overturned national regulations stipulating that employees must have worked for 12 months beforehand in the country of employment. That means in theory that an employee can be posted according to the van der Elst principle as soon as he/she arrives in Germany and takes up work there. It should also be noted that some European countries, such as the UK, have not yet enacted this ruling (van der Elst) of the European Court of Justice in national law.

To learn more about the subjects of applying for the EU Blue Card, employment of skilled foreign workers and experts, shortage of skilled workers and experts, bottleneck occupations, visa & work permits, settlement permits, posting of employees and legal requirements for immigration to Germany, download our service flyer. To go to our official website to get more information, please click here.

FAQs

What is the difference between a residence permit and a work permit?
A residence permit gives you a right to live in a country. A residence permit issued in Germany usually allows the holder to stay in the entire Schengen Area (for up to 3 months at any one time). A work permit gives its holder the additional right to pursue gainful employment. A work permit is usually linked to a specific employment contract and employer. The residence permit and work permit are normally granted in a joint confirmation, usually in the form of an electronic residence permit.

What is the EU Blue Card?
The EU Blue Card was introduced in August 2012 and is a residence permit intended to promote immigration of highly qualified foreign workers. In order to obtain an EU Blue Card, foreign employees must prove that they have been offered fully fledged employment with a company based in Germany. They must also be suitably qualified and have a salary above a certain limit.

What is the difference between an EU Blue Card and a work permit?
The EU Blue Card is a special form of work permit. Apart from the EU Blue card, there are a number of other residence permits that also enable their holder to pursue gainful employment. Examples that can be mentioned are the staff exchange work permit, the permanent settlement permit or the EC long-term residence permit. You should clarify what residence is suitable for your purposes at an early stage.

Is the EU Blue Card the right permit for postings?
The EU Blue Card cannot be used as the legal basis for postings since it can be obtained only if its holder has fully fledged employment with a company in Germany. In contrast, employees who are posted usually retain their employment relationship in their native country. In these cases an EU Blue card is not an option. A residence permit, specifically valid for postings, has to be applied for. Due to the fact that the German authorities need to be involved, applying for such a residence permit and the associated visa is far more time-consuming and laborious than applying for an EU Blue Card. However, the company does not need to offer full-time employment in Germany or establish a German business establishment or company for the employee to obtain it. There are also advantages in terms of compensation, as well as additional benefits for the company. Last but not least, that the employee can stay on his home country’s employment contract with all entitlements and obligations.

What are the advantages of postings?
Posted employees retain their contract of employment in their native country, which reduces the red tape. During their stay, employees are then usually remunerated on the basis of their salary and posting-related allowances, which may have a favourable impact on the taxes that have to be paid. Moreover, it is not necessarily the case that German social security contributions have to be paid for posted workers, which means they can continue to build up entitlements in their native country. A further advantage of a visa for postings is that the employee can work without the need for his or her company to have a business establishment in Germany.

What are the salary requirements for postings?
Whereas minimum salary levels are defined for the EU Blue Card, the adequacy of the salary for posted workers is judged on a case-by-case basis. Employees will usually retain their salary from their native country during their stay in Germany and receive additional allowances for the posting. It is advisable to clarify the question of compensation in a consultative meeting before an application is submitted. We discuss individual cases where there are doubts as to whether the application will be successful in advance with the Central Placement Office so as to avoid any surprises later. In the case of postings, it is necessary to take into account not only the employees’ basic salary and actual posting-related/daily allowances, but also other allowances, such as provision of free accommodation.

How long does the process for obtaining a work visa take?
The time it takes to obtain an EU Blue Card is ca. 6-8 weeks. If, however, a residence permit other than a Blue Card is required (for example a work permit for a posting), the consulate in question must first send the request to Germany, where it undergoes a bureaucratic examination process involving several different authorities. In these cases, an application can take 10 to 12 weeks. In both cases, a general problem is, that applicants do not have any control over the process at any time and a lot of time is squandered if they find out that their application has been rejected only at the very end of the process. Getting control over the processing of the application is possible by filing the application twice, once with the consulate in the home country and once directly with the relevant authorities in Germany. Delegating the application process to competent hands has many advantages: The outcome can be foreseen early on, the prospects for success are increased and the processing times can be shortened.

Must employees complete a language course before entering the country?
A distinction must be made here on the basis of the employee’s qualifications and the duration of his/her stay. A hard-and-fast statement can only be made for the EU Blue Card: the law exempts its holders from the obligation to complete a language course beforehand. A consultative meeting is suitable for clarifying whether your employees can be exempted from this obligation and, if so, how.

Do family members have to complete a language course?
It depends on the specific situation if it is possible to exempt family members from this obligation. With short term deputations (less than 2 years), an examination of their need for integration is usually conducted. Also a university degree of the family member might help. Holding their own university degree, the authorities usually assume that he or she will be able to acquire the necessary knowledge of German after entering the country.

Can freelance workers obtain a work permit?
In principle, freelance workers and the self-employed can apply for a work permit. However, there are relatively strict requirements and the aspect of bogus self-employment must always be taken into consideration. Less of a problem is the award of contracts to foreign companies (including one-man companies), which then post their employees or, if applicable, managing director to Germany.

What is a van der Elst visa?
A van der Elst visa is a category of visa developed by the European Court of Justice which enables companies to post employees lawfully working in one EU Member State to customers in other EU countries without the need for these employees to obtain an additional work permit in the other country. For example, a company based in Germany can send an Indian employee who works here and holds a German work permit or a German EU Blue Card to work on projects in other EU countries, such as for a customer in Italy. In such a case, the other EU country is not permitted to conduct an additional labour market test and can only require that the posting be registered properly and, if applicable, a van der Elst visa applied for. It should be noted that some EU countries have not enacted this requirement or have only done so in part

You can communicate with our lawyers in German, English, French and Italian. We would be pleased to provide you with more information over the phone or by e-mail.