Even having a contract does not guarantee smooth employment in a German company
“It can be said that having an employment contract does not yet give a legal claim to employment in Germany,” explains lawyer Florian Roloff in an interview with Deutsche Welle. Only when it comes to professions in demand in Germany (doctors, engineers, IT specialists, mechatronics and electrical engineering specialists) or highly qualified scientists can it be said that an employment contract serves as a certain guarantee, provided all other conditions for obtaining a work permit or a Blue Card are met.
“When we talk about the general flow of applicants who have received education abroad and would like to work and live in Germany, but do not have qualifications in demand on the German labor market, the chances of obtaining a permit are almost zero,” says the practicing lawyer from Hamburg.
The issues of granting permission to hire a foreign employee are regulated by the Residence Act (Aufenthaltsgesetz). The lawyer from Hamburg summarizes the most important points for Russian-speaking applicants. A foreign employee can be hired only if no local specialist can be found for the open position. Regional, economic, and other interests of the German labor market must be taken into account. And the salary of a foreign specialist cannot be lower than that of a German employee in a similar position.
The applicant first contacts the German representation in their home country—the embassy or consulate. To issue a work visa, they in turn contact the Foreigners' Office in Germany, which makes a request to the Federal Employment Agency (Bundesagentur für Arbeit). The chain is quite long, but the procedure is well-established. However, even with a contract and no objections from the office, the agency may refuse to grant permission. As a result, the applicant receives a refusal from the consulate or embassy.
“Any decision under German law can be challenged, but in visa matters and work permits, this is not formally provided for,” explains Florian Roloff. “As a result, a legal instrument has emerged—Remonstration (appeal). This procedure allows the applicant to request a justification, and with that justification, they can go to court. Essentially, you will be suing the Federal Republic of Germany.”
Challenging your right to obtain a work permit in Germany is difficult in most cases. You must prove that your qualifications are unique and that there are no employees on the German labor market who could perform the duties described in the vacancy. The specialist from Hamburg can imagine that, for example, in shipping, foreign trade, or customs, there may be vacancies for which companies want to hire someone who has worked abroad for several years. However, having work experience does not mean that the candidate has a chance to fill such a vacancy.
If a candidate who has received an employment contract from a German company still wants to apply for a work visa, it is important to provide additional arguments as to why they are suitable for the position and why they cannot be replaced by a German candidate. These arguments should prompt the Federal Employment Agency to thoroughly examine the possibility of employing the foreign specialist in Germany.
For example, a formulation in the refusal from the Federal Employment Agency such as “Diese Tätigkeit ist dem Hochschulabschluss nicht angemessen,” which officials may use, the lawyer, who is a board member of the German-Russian Association of Jurists, considers unfounded. It can be interpreted as: “The applicant's qualification level exceeds the requirements of the position itself.” But this is just one interpretation. What exactly the officials meant, the candidate will have to find out if they want to challenge this decision and still apply for a visa.
Florian Roloff warns applicants against applying for general vacancies. After all, even if you pass the selection process and the employer invites you, the likelihood of receiving a refusal for a work permit is too high. And if a visa is refused, even if it was based on a refusal from the Federal Employment Agency, it will be difficult to obtain even a tourist visa in the future.