On 19 December 2018, the Federal Cabinet adopted a draft of a new law on the immigration of skilled workers, the declared aim of which is to ensure the availability of skilled workers through targeted and controlled immigration of skilled workers from third countries. This is not a complete amendment, but rather a selective change and supplement of the existing legal regulations, e.g. in the Residence Act (Aufenthaltsgesetz – AufenthG). In the meantime, the draft law has also been passed by the Federal Council. The Federal Council published its statement on 15 February 2019 and welcomed the draft in principle.
Extension of the concept of skilled workers
A fundamental change to the draft concerns the definition of skilled worker. In future, this will primarily cover not only university graduates, but also skilled workers with qualified vocational training. Thus, skilled workers are on the one hand those with vocational training, but on the other hand also those with academic training (cf. § 18 (3) draft of the Residence Act, hereinafter referred to as the Residence Act-E).
Elimination of the priority check
As far as the employment of a national from a third country is concerned, it is currently still required that the position to be filled by this person could demonstrably not be filled by a privileged EU citizen (so-called priority check). So far, such an examination was only not required in the case of highly qualified persons. Highly qualified persons in this sense are (1) skilled workers with a domestic university degree and (2) graduates with a recognised or a university degree comparable to a German university degree or a qualified vocational training acquired in Germany in a state-recognised or comparably regulated training occupation.
As one of the important innovations of the draft law, the priority check is now to be largely dropped. Skilled workers should now be able to work in all occupations for which they are qualified, provided they have an employment contract and a recognised qualification (university degree or qualified vocational training). The participation of the Federal Employment Agency is thus to be eliminated in future, which should lead to a faster way of obtaining residence permits for skilled workers.
Information and communication technology professions
The draft provides an even wider opening for employment in information and communication technology. Regardless of the qualification as a skilled worker within the meaning of Section 18 (3) of the Residence Act (AufenthG), a residence title may be issued for employment in these sectors if a comparable qualification exists that has been proven by at least five years of work experience and if sufficient German language skills (level B1) are available (cf. Section 6 BeschV-E). A formal degree should therefore no longer be required.
Job search for skilled workers
In the future, not only skilled workers with academic training but also those with vocational training should be granted a temporary residence permit for the purpose of finding a job if certain requirements are met (e.g. language skills, secure means of subsistence) (cf. § 20 AufenthG-E).
In addition, an accelerated procedure for skilled workers is to be offered, which can be initiated by domestic employers (cf. § 81a AufenthG-E). It should then be possible to issue residence permits at short notice. In principle, foreign nationals themselves are responsible for submitting applications (§ 81 (1) AufenthG). However, the new § 81a Residence Act-E makes an exception to this rule: the foreign national should be able to authorise their domestic employer to conduct the accelerated procedure for skilled workers.
Central foreigners authorities in the federal states
Finally, the federal states should set up central offices responsible for questions relating to the entry of skilled workers (cf. § 71 (1) Residence Act-E). This is intended to bundle all competences in one place in the sense of a “one stop shop”.
Statement of the Federal Council
In its statement, the Federal Council assesses the declared objective of the draft as positive and conducive to economic development. In essence, it proposes changes to the wording and adaptation of definitions, but less of a change to the concrete content. However, the Federal Council also demands more rights of co-determination with regard to the immigration of skilled workers: unlike the Federal Government, it considers its draft bill to be in need of approval. In this respect, it is not clear whether the Federal Council’s proposals will be implemented in the further course of the process or not.
Further legislative procedures
Now that the Federal Council has taken a position on the draft bill following its submission at the beginning of 2019 (BR-Drucks. 7/19), the draft bill will be submitted to the Federal Parliament together with the statement. The latter will then make the binding decision on the enactment of the law. The Act will enter into force only six months after its proclamation in order to ensure the change of processes by the authorities.
More catching up to be done
Employers will likely benefit from some simplifications in the recruitment of specialists from third countries when the law comes into force, including, for example, the (hopefully) faster issuance of residence permits. Nevertheless, some of the draft legislation falls short of expectations, as certain obstacles remain.
For example, the language requirements for applicants remain high. In view of international teams in which English is often the used language, basic knowledge of German seems sufficient for such applicants.