Extended employment opportunities for third-country nationals with professional practical experience

published on 13 February 2024 | reading time approx. 3 minutes

From 1 March 2024, further changes to the residence regulations will come into force, as provided for in the Ordinance on the Further Development of Skilled Immigration. This includes a new version of Section 6 of the Ordinance of the Employment of Foreigners (BeschV).

Residence permit on the basis of Section 19c (2) Residence Act in conjunction with Section 6 of the Ordinance on Employment of Foreigners

Pursuant to Section 19c (2) of the Residence Act, a residence permit may be issued to a foreigner with a high level of practical professional knowledge for the purpose of taking up qualified employment if the Employment Ordinance stipulates that the foreigner may be authorised to take up such employment.

The previous version of Section 6 of the Employment Ordinance stipulated that the approval of the Federal Employment Agency (FEA) could be granted to foreigners for qualified employment in occupations in the field of information and communication technology, irrespective of their qualification as skilled workers. Foreigners had to have a comparable qualification, proven by at least three years' work experience over the last seven years, sufficient knowledge of German and a salary of at least 60 percent of the annual assessment ceiling for contributions to the general pension insurance scheme.

New provisions for the approval of the under Section 6 Employment Ordinance

The revised version of Section 6 Employment Ordinance simplifies the conditions under which an FEA approval can be granted. The main simplification is that an FEA approval can be granted to foreigners with extensive professional experience in all occupational groups. This removes the restriction that this standard can only be applied to employees in information and communication technology occupations. In addition, the requirement for sufficient knowledge of the German language is no longer applicable.

As part of the approval process, the FEA must review that the following requirements are met:

As before, the occupation must be qualified. According to Section 2 (12b) of the Residence Act, a qualified occupation exists if the skills, knowledge and abilities acquired during a course of study or qualified vocational training are required for the performance of the occupation.
There must be a job or a concrete job offer in Germany.
In addition, the foreigner must have at least two years of work experience within the last five years. The length of the professional experience and the period in which this experience must be acquired have been shortened compared to the previous version of Section 6 Employment Ordinance.
The salary must amount to at least 45 percent of the annual contribution assessment ceiling in the general pension insurance (from 1 January 2024 this will be 40,770 euros gross per year). The salary requirements have therefore also been relaxed. This salary threshold does not apply if the employer is bound by a collective agreement and employs foreigners under the terms of the collective agreement.
Foreigners must have a foreign professional qualification of at least two years' duration that is officially recognised by the state in which it was obtained, or a foreign university degree that is officially recognised by the state in which it was obtained. Foreigners are required to obtain a certificate from a competent domestic authority confirming that they meet these requirements. It is also sufficient for foreigners to have a vocational qualification acquired abroad, which was acquired in the course of training that meets the requirements of the Vocational Training Act for vocational training in terms of content, duration and method of implementation and is suitable for imparting the necessary professional competence for a training occupation pursuant to the Vocational Training Act or the Crafts Code, and which was issued by a German Chamber of Commerce abroad. Fulfilment of the requirements for training abroad must be confirmed to the awarding body at the latter's request and expense. The legislator has therefore introduced a detailed description of the qualifications that foreigners should possess. However, these qualification requirements do not apply to professions in the field of information and communication technology. This means that, as before, only work experience and salary level are relevant for these professions.

If the FEA agrees and all requirements are met, the decision on the granting of a residence permit pursuant to Section 19c (2) Residence Act is at the discretion of the authority.

It should be noted that Section 9 BeschV is still not applicable. This means that the involvement of the FEA is mandatory for the extension of the residence permit.

Conclusion

The amendment to Section 6 Employment Ordinance is linked to other changes to the residence regulations and is in line with the legislator's general policy of facilitating the immigration of skilled workers to Germany. From 1 March 2024, Section 6 Employment Ordinance will apply to all occupational groups and, as before, to skilled workers with academic and vocational training. The focus is on the professional experience of foreigners. It is sufficient for the qualification to be recognised by the state in which it was acquired. Recognition of the qualification in Germany is generally not required. In comparison to the EU Blue Card, the required income threshold under Section 6 BeschV is lower (for the EU Blue Card from 1 January 2024 – 45,300 euros gross per year). In addition, there is no requirement that the residence permit must be granted “for the purpose of employment commensurate with their qualifications”. Accordingly, there are further possibilities for employers to employ third-country nationals in Germany.

Finally, it should be mentioned that persons who withdraw their application for asylum and who entered the country before 29 March 2023 can, among other things, switch to a residence permit in accordance with Section 19c (2) of the Residence Act.