Removal of previous hurdles
The new law amends the existing provisions of the German Residence Act (Aufenthaltsgesetz), the German Foreign Workers Ordinance (Beschäftigungsverordnung) and the German Residence Ordinance (Aufenthaltsverordnung). A uniform definition ofskilled workers is introduced, which includes those with a degree but also workers with a specialist vocational qualification. Particularly for the latter group, access to the labor market has been difficult in the past. Finding employment was only possible within the following parameters:
Residence permits including work permits could be granted without the approval of the German Federal Employment Agency only in the shortage occupations defined by the Federal Employment Agency. Apart from university degrees this, for example, included care workers and electricians.
Outside of such shortage occupations, the granting of a residence permit was subject to the approval of the Federal Employment Agency. However, this was only granted if the foreign applicant was not taking a job otherwise available to an EU citizen already resident in Germany (the precedence test, or »Vorrangprüfung«). The fact that there were any persons registered as unemployed in the profession in question would be sufficient for the permit to be refused. In our experience, cases were not assessed on an individual basis.
The entry into force of the Skilled Immigration Act removes both these limitations.
New law, new hurdles
While two obstacles have been removed, another hurdle remains. This is due to the entire lack of clarity around whether a specialist vocational qualification meets the definition and requirements of the German Residence Act. According to the statutory provisions, the profession must be officially recognized and require at least two years' vocational training, the course and content of which is equivalent to a German qualification in the respective industry. However, the associated assessment is not undertaken by a central authority on a federal level. Responsibility varies depending on the state, the profession and the country in which the qualification was achieved. In order to facilitate identification of the authority responsible for the application for recognition, a central clearing office will be established which distributes the applications to the responsible authorities. We fear that this widely distributed responsibility may result in different results in different states. This would not only be a very unsatisfactory result, it would also cause lack of clarity and understanding on the part of both the foreign applicants and the recruiting employers.
Modalities of the residence permit
Where a residence permit is granted according to the new provisions, the permit will be limited to a maximum of four years. However, as previously, the Federal Employment Agency may impose additional limitations. This particularly applies to the length of the permit, employment at one particular plant or with one particular employer, and the region in which employment may be undertaken.
Improvement through fast-track procedure
The new fast-track procedure is a very welcome innovation. With the consent of the foreign applicant, employers may now agree an expedited procedure with the authority. In the past, the long processing time associated with applications was one major reason why intended recruitment would fail. Likewise, the fact that applicants resident abroad would frequently lack the capacity to handle the bureaucratic processes involved in the application was an undesirable disincentive. Employers on the other side of the procedure were given very few opportunities of meaningfully supporting the applicant in this regard. For a fee of EUR 411 and provision of all required documentation, employers may now provide this support by way of the fast-track procedure. In addition, all the usual time periods applicable to the issuing of visas by the diplomatic representations and the granting of residence permits by the German Federal Employment Agency are shortened.
How exactly the authorities will handle these agreements on fast-track processing remains to be seen. Likewise, how authorities, already somewhat stretched in terms of personnel resources, will guarantee the expedited processing of applications, is an open question.
Outlook and recommendations
At this stage, the bottom line is for employers not to expect too much from these legislative innovations. We must expect the first batch of applications for recognition of qualifications gained in the applicant's home country to be subject to long processing times. Looking to the future, we are hoping for the introduction of an index similar to the »anabin « portal which has been introduced for university degrees, which will make it clear to applicants and employers which qualifications from which third countries are recognized, and which are not. We will keep you updated as the first empirical values and experience regarding the practical impact of the new law become available.