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Lack of skilled labour – a problem for the German economy
The long-standing shortage of skilled workers faces the German economy with a major problem. As this shortage cannot be remedied by recruiting German employees, the German Residence Act (Aufenthaltsgesetz) offers a number of options for bringing qualified foreign workers to Germany on a fast-track basis. Major countries of origin for this labour migration to Germany include the states of the former Soviet Union, namely the Russian Federation, Belarus, the Republic of Moldova and Ukraine, among others, but also countries in Southeast Asia such as the Philippines and Indonesia. The workers involved come from the fields of medicine (physicians, nurses, midwives, geriatric nurses), crafts (drywallers, bricklayers), science/academia and other professions.
Introduction to the fast-track procedure for skilled workers
The fast-track procedure for skilled workers is governed by section 81a of the German Residence Act (Aufenthaltsgesetz – AufenthG) . It is intended to counteract the lack of skilled workers in Germany. Compared to the regular procedure, the fast-track procedure for skilled workers takes much shorter. This facilitates the process considerably, especially for employers who want to recruit skilled workers from non-EU countries.
The fast-track procedure for skilled workers was introduced for the following purposes of residence:
Vocational training or advanced in-company vocational training, section 81a(1) in conjunction with section 16a of the German Residence Act (AufenthG)
Section 16a of the German Residence Act (AufenthG) is to enable a foreign national to complete vocational training or advanced in-company training in Germany. Section 81a(1) of the German Residence Act (AufenthG) also offers a fast-track procedure for skilled workers for this purpose, as the foreign national will be a so-called skilled worker within the meaning of the German Residence Act after completing his or her vocational training.
Recognition of foreign vocational qualifications, section 81a(1) in conjunction with section 16d of the German Residence Act (AufenthG)
The fast-track procedure for skilled workers is also an option if the foreign national wants to have his or her vocational qualifications from another country recognised in Germany. The possibility of recognition is governed by section 16d of the German Residence Act.
Employment of a skilled worker with vocational training qualifications, section 81a(1) in conjunction with section 18a of the German Residence Act (AufenthG)
Employers who wish to bring a skilled worker with vocational training to Germany for qualified employment, can also use the fast-track procedure for skilled workers.
Employment of a skilled worker holding a university degree, section 81a(1) in conjunction with section 18b of the German Residence Act (AufenthG)
Of course, the fast-track procedure for skilled workers was also introduced to bring foreign workers who hold university degrees to Germany and employ them here. This is governed by section 18b of the German Residence Act (AufenthG).
Employment of a highly qualified skilled worker with a university degree who is to be granted a permanent settlement permit, section 81a(1) in conjunction with section 18c of the German Residence Act (AufenthG)
Very highly qualified foreign workers who are to be hired by an employer in Germany can also be granted a (permanent) settlement permit instead of a (temporary) residence permit. This can also be done under the fast-track procedure for skilled workers.
Employment of a skilled worker with a university degree who is to be granted an EU Blue Card, section 81a(1) in conjunction with section 18g of the German Residence Act (AufenthG)
A foreign national from a third country who holds a university degree and has reached a certain salary bracket can be issued a so-called EU Blue Card via the fast-track procedure for skilled workers, entitling the foreign national to work in Germany.
Employment of other qualified employees, section 81a(5) of the German Residence Act (AufenthG)
Application for a residence permit for other qualified workers: This category is defined by law in section 81a(5) of the German Residence Act (AufenthG).
What happens in the fast-track procedure for skilled workers?
Authorised by the foreign citizen, the employer can file an application for qualified employment in Germany on behalf of his or her prospective employee. The procedure under section 81a of the German Residence Act (AufenthG) does not require the skilled worker (foreign national) to submit an application to the foreign citizens’ authority.
Application and documents
This application must be submitted to the competent foreign citizens’ authority. In Cologne, for example, this is the Cologne District Government (Bezirksregierung Köln). In the case of the standard fast-track procedure for skilled workers for the employment of a qualified foreign worker the following documents must be submitted among others:
- Employment contract or concrete job offer (declaration of employment).
- Evidence that the foreign worker is able to earn a living, including sufficient health insurance coverage from his or her income without recourse to public funds.
- Authorisation of the employer by the foreign skilled worker to carry out the fast-track procedure for skilled workers
- Passport or passport substitute of the skilled worker
- Copy of the certificate of the skilled worker’s residence status if currently residing in another EU country
- Evidence of adequate provisions for old age
- Where applicable, notification from the competent recognition body that the equivalence of vocational training completed abroad has been established (if available)
- Where applicable, assessment of the higher education certificate by the Central Office for Foreign Education (Zentralstelle für ausländisches Bildungswesen) on the comparability of the foreign university degree (if available)
- Where applicable, notification from the competent authority on the recognition of the foreign university degree for the purpose of employment in a regulated profession (if available)
- Where required: permission to practice a profession or promise of permission to practice a profession
Depending on the circumstances, the submission of documents can vary considerably. In particular, obtaining evidence of the equivalence of foreign vocational training or a foreign university degree is always time-consuming and difficult.
Once all the documents have been submitted, the foreign citizens’ authority will advise the employer on the next steps and specific evidence that needs to be submitted. The duty to advise the employer is based on section 81a(3) no. 1 of the German Residence Act (AufenthG) (but also on section 25 of the Administrative Procedure Act (Verwaltungsverfahrensgesetz – VwVfG)).
Consequence: Agreement between employer and foreign citizens’ authority according to section 81a of the German Residence Act (AufenthG)
As soon as all the requirements for the fast-track procedure for skilled workers are met, a formal agreement will be concluded between the employer and the foreign citizens’ authority, as described in section81a(2) of the German Residence Act (AufenthG).
This agreement contains all the important data for conducting the fast-track procedure for skilled workers and sets out the precise rights and obligations for the employer, the foreign worker wishing to enter the country and the foreign citizens’ authority. In addition, the agreement contains a detailed description and schedule of the procedure, including the specific deadlines to be met. A specific contact at the foreign citizens’ authority will also be appointed for the employer.
The duties of the foreign citizens’ authority are set out in section 81a(3) of the German Residence Act (AufenthG). In addition to the duty to advise the employer, as already described above, it is the duty of the foreign citizens’ authority:
to initiate with the competent body the procedure for establishing the equivalence of the vocational qualification acquired abroad or for assessing the foreign higher education certificate or the foreign university degree, where necessary, indicating that this is part of the fast-track procedure for skilled workers; if the aim is to employ the foreign citizen in a regulated profession in Germany, permission to practice the profession must be obtained,
to initiate, where required, the procedure for confirming that the foreign citizen
has a foreign vocational qualification that is recognised by the state where it was acquired and which requires at least two years of training, or
has a university degree that is recognised by the state where it was acquired,
with a competent domestic body indicating that this is part of the fast-track procedure for skilled workers; if the aim is to employ the foreign citizen in a regulated profession in Germany, permission to practice the profession must be obtained,
in cases where a procedure under no. 2 was initiated, to send the employer without delay any notifications by the competent bodies stating that they have received the relevant documents and that these are complete; if the competent body needs more documents and if the employer has received an assessment by the competent body, the employer is to be invited within three working days of receipt in order to be handed the assessment and discuss any further steps to be taken,
to obtain, where necessary, the consent of the Federal Employment Agency, indicating that this is part of the fast-track procedure for skilled workers,
to inform the competent diplomatic mission abroad that the foreign citizen is about to apply for a visa, and
to approve in advance the prompt granting of the visa, provided the necessary requirements are met, which includes establishing the equivalence or the comparability of the vocational qualification and the consent of the Federal Employment Agency.
If the competent authority issues a notification establishing that the vocational qualification abroad is not equivalent but that equivalence can be achieved by taking part in a qualification measure, the procedure described in section 81a may be continued, the aim being the entry for the purpose under section 16d.
Procedure for the recognition of foreign qualifications
As already mentioned, the competent foreign citizens’ authority can initiate the procedure for the recognition of vocational qualifications or the assessment of higher education qualifications acquired abroad. Experience has shown that this is the longest and most complicated step in the fast-track procedure for skilled workers.
The foreign citizens’ authority must advise the employer (and the foreign worker wishing to enter the country) on the necessary measures, as recognition or assessment of the degree or qualifications depends on the foreign national’s home country and profession and is not a straightforward process.
Which documents are required again depends on a number of circumstances, and when the documents are complete, they will be forwarded to the competent recognition body (for example the Standing Conference of the Ministers of Education and Cultural Affairs (Kultusministerkonferenz)). The competent body then has 2 months to decide on the recognition.
Consent of the Federal Employment Agency (Bundesagentur für Arbeit)
If necessary, the consent of the Federal Employment Agency must also be obtained. For this purpose section 36 of the Ordinance on the Employment of Foreign Citizens (BeschV) must be observed. Under the fast-track approval procedure, the Federal Employment Agency must decide within one week, otherwise approval will be deemed to have been granted. This is also intended to accelerate the procedure.
The “Declaration of Employment” form, which must be completed by the future employer, plays an important role in this procedure.
Preliminary approval of the foreign citizens’ authority, section 81a(3) no. 6 of the German Residence Act (AufenthG)
If the necessary requirements are met, including the establishment of the equivalence or comparability of the vocational qualification and the consent of the Federal Employment Agency, the foreign citizens’ authority should approve the granting of a visa promptly, i.e. without undue delay.
The original so-called preliminary approval will then be forwarded to the employer, who will forward it to the foreign skilled worker.
Visa procedure abroad
Once the foreign skilled worker has received preliminary approval, he or she can apply for an appointment to apply for a visa to the relevant German embassy/consulate in his or her home country.
Measures have also been taken at the relevant diplomatic missions abroad to accelerate the entry of skilled workers. Fast-track procedures have been introduced to speed up the process for the granting of visas. Section 31a(1) of the Residence Ordinance (Aufenthaltsverordnung) stipulates that in the case of the fast-track procedure for skilled workers, the diplomatic mission abroad (German embassy/German consulate) must offer the skilled worker an appointment to apply for a visa within the next three weeks promptly after submission of the preliminary approval or transmission of the preliminary approval by the Central Register of Foreign Citizens (Ausländerzentralregister) and after receipt of the request for an appointment.
According to section 31a(2), the decision should then, as a rule, be made three weeks after the complete visa application has been submitted.
Family members of the foreign skilled worker
In order to take account of the wish of most foreign skilled workers to bring their family members to Germany, the fast-track procedure for skilled workers also provides options to enable/facilitate the subsequent immigration of the skilled worker’s spouse or children. This is to strengthen the skilled worker’s ties with Germany and facilitate integration. See also section 81a(4) of the German Residence Act (AufenthG).
Important Note: This article has been prepared by mth Tieben & Partner for general information purposes only. Mth Tieben & Partner does not accept any liability to any person or organisation for the use or reliance of the information contained in this article. On any specific matter, kindly contact us by dialing 0221 – 80187670 or sending us an email to info@mth-partner.de
Lawyers in Cologne provide legal advice on German immigration law.
