Waiver Of Priority Checks For The Immigration Of Skilled Workers



Germany:

Waiver Of Priority Checks For The Immigration Of Skilled Workers


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The German government seeks to promote the prospering of the
German economy as finding skilled employees from the German labour
market becomes more difficult for many employers, especially in the
industries of nursing care (the care provided in hospitals and for
elderly people), IT, and in the craft sector. While stressing the
importance of acquiring domestic employees, the government’s
proposed solution for these labour market difficulties is an easier
immigration process for skilled workers from non-European Economic
Area (EEA) nations (foreign workers).

Current Legal Situation

Under current law, the Federal Employment Agency carries out a
so-called priority check as part of a work permit procedure (if no
exemption applies; e.g., for high qualified workers or
blue card holders) that is conducted by the Immigation Authority.
The purpose of such priority check is to ensure that vacancies are
filled with domestic or EEA member state workers (national
workers). Thus, the Federal Employment Agency has first to check
whether unemployed national workers are available for the position
before giving its consent for a work permit.

Revised Regulations

In order to counter the shortage of qualified workers, the
requirement of conducting a priority check will be waived except in
such cases where it is explicitly mentioned in the statute, see
section 39 (2) of the German Residence Act. According to the newly
implemented sections 18a and 18b and the amended section 39 of the
German Residence Act, this priority check will no longer be
necessary in the event that foreign workers work under the same
working conditions as national workers. The amendments of the
Residence Act align the status of workers who completed vocational
training with persons who completed an academic degree. In other
words, under the amendments, foreign workers will be already
considered as skilled workers within the meaning of the German
Residence Act if they can provide evidence of completing a
vocational training or of an academic degree.

The foreigner’s qualifications will in future be checked for
comparability with national qualifications in a so-called
recognition procedure. The new regulations will mostly become
effective as of March 1, 2020.

How to Hire Foreign Workers in Germany under the New
Regulations

A German work permit usually will be granted to a foreign worker
once prior consent of the Federal Employment Agency is obtained.
Such consent will be given if several conditions are met, including
that: the foreign worker will work under the same working
conditions as national workers; the occupation is considered as
requiring the qualification of a “skilled worker;” the
qualifications of the foreign worker are considered as equal to the
required qualification of a national worker; employment was offered
to the foreign worker; and the applicable requirements of the
German Regulation on the Employment of Foreigners
(Beschäftigungsverordnung) are met. This regulation specifies
the requirements under the German Residence Act and states
conditions under which foreign workers can be admitted to the
German labour market. If proof of all applicable requirements is
given, the Federal Employment Agency will give its consent and the
foreign worker may be employed in Germany.

Professional Pointer

In order to speed up the procedure for obtaining consent from
the Federal Employment Agency to fill a particular vacancy, the
employer may carry out a preliminary consent procedure before a
foreign worker applies for a residence permit. To do so, the
employer has to send a job description indicating the required
qualifications for the vacant position (e.g., special
academic degree or vocational training) to the Federal Employment
Agency. With the preliminary procedure, it is not necessary to
provide the Agency with any details about the applicant. Depending
on the job description, the Agency will either give its preliminary
consent or reject the application.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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