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Employment of Foreign Skilled Workers in Times of Corona

It was not until 1 March 2020 that the new German Immigration Act for Skilled Workers came into force, which was intended to expand and in some cases facilitate access to the labour market in Germany for skilled workers from countries outside the European Union. Only a short time later, due to the increasing spread of the corona virus, travel restrictions were imposed worldwide which currently make skilled worker immigration seem impossible. In Germany, entry restrictions for travel to Germany from third countries have been in force since 17 March 2020. The restrictions, initially set to apply for 30 days, have already been extended until 15 May 2020. A further extension is not yet foreseeable but likely. The German missions abroad are currently obliged to no longer accept visa applications, the aliens authorities in Germany are mainly closed to the public, some have switched to online procedures, and only in individual cases are appointments permitted again. In many respects, the restrictions resulting from the corona virus have a considerable impact on the employment of foreign skilled workers. This affects not only foreigners who were currently planning to take up employment in Germany but also foreigners who already reside in Germany or are already employed here. The German Ministry of the Interior (BMI) has reacted to the restrictions due to the COVID-19 pandemic. Due to the closure of the foreigners authorities for public access and because of the reduced number of staff, the BMI has provided for facilitations for the aliens authorities in two circulars and issued an ordinance on handling Schengen visas during the corona restrictions which are also of interest to employers who employ foreign skilled workers.

Entries only in exceptional cases

Without an urgent reason, entry to Germany is currently not possible for third-country nationals who do not yet have a long-term right of residence. Exceptions are only made for foreigners with so-called "essential functions or needs", in particular for healthcare staff and researchers as well as for nursing professions and for cross-border commuters, freight transport workers and other necessary areas. According to the BMI, accelerated procedures for skilled workers in the above-mentioned occupations should be given priority. For skilled workers in other professions and trades, on the other hand, there are considerable delays due to travel restrictions and the continued closure of some aliens authorities. According to the BMI, all further accelerated procedures for skilled workers are to be continued by the aliens authorities in accordance with their capacities and in consultation with the employers, to facilitate a speedy decision once the travel restrictions have been lifted.

Simplified procedures for the renewal of existing residence permits

The BMI has provided for simplified procedures in the event that foreign skilled workers are currently employed in Germany with a residence title whose validity has expired. In particular, greater use is to be made of the so-called impact of fiction in section 81 (1) German Residence Act. If the renewal of the residence title is applied for (which can currently also be done informally, e.g. online, by e-mail or telephone), the fictional impact will take effect by operation of law. The previous residence title is thus considered to be valid from the time of its expiry until the decision of the aliens authority. Consequently, the previously permitted employment can continue to be exercised after the expiry of the residence title. The fictional or temporary residence certificate (Fiktionsbescheinigung) is regarded as proof of this. If the certificate cannot be issued by the authority due to the special circumstances, confirmation of receipt of the application for renewal by the authority, in emergencies even electronically without signature and stamp, is sufficient as proof.

Specifics for holders of Schengen visas

Schengen visas are issued for stays of up to 90 days within a 180-day period exclusively for tourist or business purposes. Gainful employment is not permitted on the basis of a Schengen visa. However, due to the restrictions imposed by the corona virus, in particular because of the almost complete cessation of international flight operations, it is currently no longer possible for many holders of Schengen visas to leave Germany and return to their home country. For this reason, the BMI has issued an ordinance exempting holders of Schengen visas from the requirement of a residence permit until 30 June 2020. In fact, the ordinance even allows them to legally pursue gainful employment in exceptional cases.

Extension of the deadline for expiry of residence permits

As a rule, residence titles expire when a foreigner leaves Germany and stays abroad for more than six months. The BMI has also provided for simplified procedures in cases where foreign nationals who have left Germany with a valid residence permit currently have no chance to return to Germany within the six-month period due to the corona virus, e.g. because of cancelled flight connections. Such foreigners are to be granted a generous extension of the deadline, which, due to the particular situation, may not only be granted upon application, as is usually the case, but also by means of a general ruling ex officio.

Short-time work for employees of foreign nationality

When short-time work is introduced, foreign nationals who are employed with a valid residence permit are not subject to the same rules as the other employees in the company. The prerequisite for receiving short-time work allowance is that the foreigner is subject to compulsory social insurance in Germany. For this reason, employees posted from abroad generally do not meet the requirement of an employment relationship subject to compulsory insurance in Germany for entitlement to short-time work allowance; they are subject to the regulations of their country of origin. The introduction of short-time work for foreigners who are subject to social insurance contributions has no effect on the validity of the residence permit. According to the BMI, this also applies in cases in which short-time work causes the salary limit required for the residence title to be temporarily undercut (e.g. in the case of an EU Blue Card) whereas the introduction of short-time work must, however, be a consequence of the corona virus.

Employer's obligation to report in the event of premature termination of employment

With the new German Act for the Immigration of Skilled Workers, the obligations of the employer have been extended. According to the new section 4a (5) German Residence Act, employers are obliged, in the event of premature termination of the employment of a foreign national, to notify the competent aliens authority within four weeks of becoming aware that the employment for which the residence title was issued has been prematurely terminated. t is irrelevant for the employer's duty of notification whether the termination of the employment relationship ends voluntarily or, for instance, through termination by the employer. According to the BMI's application instructions regarding the Immigration of Skilled Workers Act, the period for notification by the employer always begins upon the company's HR department being informed of the termination. If the employer does not at all, not correctly or not in time submit the report, a fine of up to EUR 30,000 can be imposed.

Because of the more difficult working conditions in many companies due to the effects of the corona virus, the BMI has, in its first circular, urged the aliens authorities to refrain from prosecuting a violation if the employer's notification is delayed due to capacity constraints. Nevertheless, it is advisable for employers to report the premature end of the foreigner's employment in good time within the deadline and to document this in writing accordingly.

Conclusion/Practical advice

The Skilled Workers Immigration Act which has only recently come into force appears to be experiencing unexpected starting difficulties after only a short time. Still, the BMI has reacted quickly to the consequences of the corona virus and has provided for effective measures for the aliens authorities as well as for foreign skilled workers which will continue to make their employment possible, even though - as in many other areas - delays may still occur at present. Employees of foreign nationality should inform themselves in good time about which relief measures apply to them and which steps they must take at their competent aliens authority in order not to lose their right of residence and permission to work. Employers must regularly verify, not only when hiring new employees but also in the case of existing employment relationships, whether the foreign employees have a valid residence permit that permits the actual employment in order to avoid illegal employment of foreign nationals.

Dr. Michaela Felisiak

Dr. Martina Schlamp

Contact us

Dr Michaela Felisiak T   +49 89 35065-1127 E   Michaela.Felisiak@bblaw.com
Dr. Martina Schlamp T   +49 89 35065-1138 E   Martina.Schlamp@bblaw.com