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Germany: New Immigration Acts to Attract and Retain Skilled Workers Published

(Oct. 28, 2019) On August 20, 2019, the Skilled Workers’ Immigration Act and the Act on Temporary Suspension of Deportation for Training and Employment were published in the German Federal Law Gazette. The objective of the Skilled Workers’ Immigration Act is to “create a legislative framework for selective and increased immigration of skilled workers from third countries.” The Act on Temporary Suspension of Deportation for Training and Employment, on the other hand, was passed to provide certain foreigners, whose deportation has been temporarily suspended, with legal certainty regarding their residence status and create the prospect of a long-term stay. The German Bundestag rejected bills that would have instituted a points-based immigration system or consolidated asylum and immigration measures into one law.

The Acts amend the Residence Act, as well as various other laws. The Skilled Workers’ Immigration Act also implements several European Union (EU) directives. (Council Directive 2009/50/EC, Directive 2014/36/EU, Directive 2014/66/EU, and Directive (EU) 2016/801.) The Skilled Workers’ Immigration Act will enter into force on March 1, 2020 (Skilled Workers’ Immigration Act art. 54, para. 1), whereas the Act on Temporary Suspension of Deportation for Training and Employment will enter into force on January 1, 2020. (Act on Temporary Suspension of Deportation for Training and Employment art. 3.)

Content of the Skilled Workers’ Immigration Act

Definition of Skilled Workers

“Skilled workers” within the meaning of the Skilled Workers’ Immigration Act are university graduates and highly qualified workers from third countries outside of the EU who have a domestic, a recognized foreign, or an equivalent foreign university degree (skilled worker with academic background) or who have completed domestic or equivalent foreign qualified vocational training (skilled worker with training). Those skilled workers may immigrate to or remain in Germany in order to look for a job and work in their area of expertise, provided they possess the required German language skills and have means of subsistence. Skilled workers over 45 years of age must show that they will earn at least €3,685 per month (about US$4,067) or that they have an adequate pension. (Skilled Workers’ Immigration Act art. 1, no. 12.)

Duration of Stay

Skilled workers who are looking for a job will receive a residence permit for six months. The residence permit for skilled workers with a firm offer of employment is valid for four years. After four years, skilled workers may apply for a permanent settlement permit, provided they have made contributions to the German pension system for at least 48 months, possess the required German language skills, and have means of subsistence, among other requirements. Skilled workers with a domestic university degree or domestic vocational training may apply after two years. Highly skilled workers with an academic background may be granted a permanent settlement permit on a case-by-case basis if they are integrated into German society, have means of subsistence and will not burden the social security system, and if granting such a permit is not precluded by reasons of public safety or order. (Art. 1, no. 12.)

No Citizenship Priority

 The Skilled Workers’ Immigration Act abolishes the requirement to give priority to German citizens or EU citizens who possess the same legal status as German workers with regard to the right to take up employment (a requirement known as the “labor market priority check”). (Art. 1, no. 27.) The labor market priority check is an examination conducted by the Federal Employment Agency to determine whether employing a foreigner would have any adverse effects on the German labor market; whether there are no German citizens or EU citizens available for the type of employment concerned; and whether the foreigner would be employed on terms less favorable than the ones that apply to a comparable German worker. (Residence Act § 39, para. 2.) Furthermore, hiring skilled workers is also no longer limited to occupations where there is a shortage of applicants.

Miscellaneous Provisions

In addition, the Skilled Workers’ Immigration Act aims to simplify the procedures for immigration, consolidate procedural responsibilities of local immigration authorities (“Foreigners’ Authorities”) in central immigration authorities in the German states, and speed up procedures for skilled workers.

Content of the Act on Temporary Suspension of Deportation for Training and Employment

 The Act on Temporary Suspension of Deportation for Training and Employment applies to foreigners who cannot be deported, because the deportation is actually or legally impossible (a condition termed “toleration”). (Act on Temporary Suspension of Deportation for Training and Employment art. 1, no. 5; Residence Act § 60a, para. 2.) Actual impossibility exists when difficulties are encountered in the deportation process that cannot be remedied, or can be remedied only with unreasonable effort. That is already the case when deportation cannot be executed in a timely manner or when it is uncertain when it will take place. Other examples of actual impossibility include having no passport and not being able to get one for an unforeseeable time; unknown citizenship; statelessness; or the impossibility of traveling due to an illness, late-term pregnancy, or the like. Legal impossibility exists when there is a prohibition of deportation based on a statute, constitutional law, or international law.

The Act on Temporary Suspension of Deportation for Training and Employment regulates toleration for the purposes of employment and training, and provides the possibility of receiving a residence permit for two years after successfully completing vocational training or being employed for 30 months. (Act on Temporary Suspension of Deportation for Training and Employment art. 1, nos. 2 & 3.)

Toleration for Employment Purposes

Foreigners whose deportation has been temporarily suspended will receive permission to stay and work in Germany for 30 months if they fulfill the following requirements:

  • They entered Germany before August 1, 2018.
  • Their identity has been established.
  • They have been tolerated in Germany for a minimum of 12 months.
  • They have been employed for a minimum of 18 months in a job that has a minimum of 35 weekly working hours.
  • They have sufficient means of subsistence.
  • They have sufficient oral knowledge of the German language.
  • They have not been convicted of an intentional crime in Germany.
  • They have no connections to or have provided no support to extremist or terrorist organizations.
  • They have successfully completed an integration course if such participation is required by law. (Act on Temporary Suspension of Deportation for Training and Employment art. 1, no. 5.)

The goal is to provide the foreigner and the employer with legal certainty regarding their residence status. (BT-Drs. 19/8286 at 11.)

Toleration for Training Purposes

The deportation of the following foreigners are to be temporarily suspended for training purposes:

  • Asylees whose asylum applications have been rejected and who have taken up vocational training while the asylum application was pending and would like to continue their training; or
  • Asylees who have taken up training to become an assistant in the nursing sector, which qualifies them for further vocational training in an occupation where there is a shortage of workers, and who have a firm offer for such vocational training; or
  • Foreigners whose deportation has been temporarily suspended due to the reasons mentioned in the Residence Act and take up vocational training or training for assistants in the nursing sector as mentioned above.

In addition, the following requirements must be fulfilled:

  • The foreigners are not citizens of a safe third country.
  • They have not “contributed to the reason why they cannot be deported.”
  • They have not come to Germany just to receive asylum seeker benefits.
  • They have been tolerated for at least three months.
  • Their identity has been established.
  • They have no connections to or have provided no support to extremist or terrorist organizations.
  • They have not been convicted of an intentional crime in Germany.
  • No concrete measures to deport them have been taken. (Act on Temporary Suspension of Deportation for Training and Employment art. 1, no. 5.)