Introduction to the expedited skilled worker procedure according to § 81a of the German Residence Act (AufenthG)
The expedited skilled worker procedure according to § 81a of the German Residence Act (AufenthG) is an efficient way for employers to integrate qualified professionals from abroad into the German labor market more quickly. It aims to significantly reduce the processing time for visas and other necessary documents. By fostering close cooperation between employers and the responsible immigration authorities, the process for pre-approval and recognition of foreign qualifications can be greatly accelerated.
The expedited skilled worker procedure is initiated by the immigration authority (Ausländerbehörde, ABH) responsible for the location of the business where the skilled worker will be employed. This is established in § 71(1) of the Residence Act (AufenthG). If the skilled worker is to be deployed at various locations across Germany for different projects, the ABH of the district from which the employer coordinates the worker's deployment is responsible, as stated in § 31(4) of the Ordinance on Residence (AufenthV).
The goal of the expedited procedure is to ensure that all relevant "domestic matters," such as qualifications and legal requirements, are reviewed before entry into Germany. This helps to avoid lengthy processes after arrival. The procedure covers not only skilled workers but also stays for vocational training, professional development, and measures for the recognition of foreign professional qualifications, as outlined in § 81a(1) of the Residence Act (AufenthG). Additionally, other qualified employment opportunities can also be integrated into this procedure under § 81a(5) AufenthG.
Responsible Authorities and Process Flow
The central authority for the expedited skilled worker procedure is the immigration authority (Ausländerbehörde) located at the site of the employer's business premises (§ 71(1) AufenthG). This authority is responsible for coordinating the procedure and initiating all necessary steps. These steps include verifying the foreign qualification, obtaining approval from the Federal Employment Agency (Bundesagentur für Arbeit, BA), and conducting the final assessment of all immigration law requirements for the issuance of the visa or residence permit.
A key element is the agreement made between the employer and the immigration authority (§ 81a(2) AufenthG). This agreement outlines all the details of the procedure, including authorizations, the obligations of the employer and the skilled worker, as well as a detailed description of the processes, deadlines, and the required documentation to be submitted.
A crucial actor in the expedited skilled worker procedure is the Federal Employment Agency (Bundesagentur für Arbeit, BA), which, in accordance with § 39(2) of the Residence Act (AufenthG), examines whether the position to be filled meets the requirements of the German labor market. This assessment determines, among other things, whether there are no preferential candidates available, such as German or EU citizens. Additionally, the BA checks whether the working conditions offered by the employer meet the usual standards in Germany. In the expedited skilled worker procedure, this review is significantly faster than in the regular process. The BA must make its decision within one week (§ 36(2) sentence 2 of the Employment Ordinance, BeschV).
Authorization of Third Parties and Inclusion of Family Members
Employers have the option to carry out the expedited skilled worker procedure themselves or to delegate it to third parties, such as law firms or relocation agencies (§ 81a(2) AufenthG). These third parties must be authorized by both the employer and the skilled worker in order to take all necessary steps on behalf of the skilled worker. This authorization ensures that the third party can act on behalf of both parties throughout the entire process, including handling communications with authorities, submitting documents, and following up on the application's progress.
Another important aspect of the procedure is the inclusion of the skilled worker's family members. Spouses and minor children of the skilled worker can also be integrated into the procedure if they meet the requirements for family reunification in accordance with § 81a(4) of the Residence Act (AufenthG). The visa applications for family members must be submitted in close connection with the skilled worker's visa application in order to be included in the expedited procedure. This means that the family members must enter Germany within six months of the skilled worker’s entry (§ 81a(4) sentence 2 AufenthG).
The expedited skilled worker procedure is not limited to visa-required third-country nationals but can also be applied to nationals from countries listed in § 41 of the Ordinance on Residence (AufenthV), who are allowed to enter Germany visa-free. However, in these cases, they may only commence employment once the relevant residence permit has been issued by the competent immigration authority. The legal fiction of temporary permission triggered by the domestic application process (§ 81(3) sentence 3 of the Residence Act, AufenthG) does not extend to employment. Therefore, a visa procedure remains necessary in these cases for the purpose of taking up employment.
Costs and Legal Requirements of the Expedited Skilled Worker Procedure
Participation in the expedited skilled worker procedure entails costs for the employer. The fee for the process at the responsible immigration authority amounts to €411 (§ 45 of the Residence Ordinance, AufenthV). In addition, there may be extra fees, such as those for the recognition of foreign professional qualifications. These recognition fees vary depending on the profession and qualification and can range from €100 to €600. Furthermore, the visa fee of €75, which must be paid at the relevant foreign diplomatic mission, is also borne by either the employer or the skilled worker.
The recognition of foreign qualifications is a key element of the expedited skilled worker procedure. According to § 14a(3) of the Professional Qualifications Assessment Act (BQFG), the responsible recognition authorities must make a decision on the equivalence of foreign qualifications within two months for professions regulated under federal law, such as engineers or doctors. For professions regulated by state law, such as teachers or elderly care workers, the federal states are required to establish similar regulations in coordination with the recognition authorities to ensure timely decisions.
To further expedite the procedure, there is a shortened response period of one week for the Federal Employment Agency (BA) to give its approval. This is stipulated in § 36(2) sentence 2 of the Employment Ordinance (BeschV). If the BA is unable to make a decision within this period, its approval is considered granted by default. This provision helps to streamline the process and prevent unnecessary delays in the issuance of work permits.
Avoidance of Parallel Procedures and Final Reviews
In some cases, skilled workers attempt to run both a regular visa procedure and the expedited skilled worker procedure in parallel. While such parallel procedures are not legally prohibited, they should be avoided in the interest of process efficiency. If a parallel process is underway, the responsible authority may decide to suspend one of the procedures. Typically, the regular procedure is suspended in favor of the expedited procedure, as the latter provides faster results. This approach helps streamline the process and reduce potential administrative complications.
The expedited skilled worker procedure requires close cooperation between the immigration authorities and the German foreign missions. The immigration authority issues a preliminary approval under § 81a(3) sentence 1 no. 6 of the Residence Act (AufenthG) once all requirements are met. This approval is communicated to both the employer and the relevant German foreign mission to expedite the visa process. The skilled worker must then schedule an appointment with the German foreign mission to apply for the visa. A decision on the visa application should be made within three weeks after submission, as specified in § 31a(2) of the Ordinance on Residence (AufenthV).
The German foreign missions are responsible for verifying several key legal requirements, including compliance with passport obligations (§ 5(1) no. 4 of the Residence Act, AufenthG), confirmation of identity and nationality (§ 5(1) no. 1a AufenthG), and the absence of any grounds for refusal (§ 5(1) no. 2, § 11 AufenthG). In cases involving family reunification, they also review whether family law requirements are met. If any of these conditions are found not to be fulfilled during the examination, the visa will be denied. The foreign mission works closely with the immigration authority to ensure that no unnecessary delays occur during this process.
Overall, the expedited skilled worker procedure provides an efficient way to integrate highly qualified professionals into the German labor market more quickly. However, it requires clear coordination and collaboration between the involved authorities to ensure the process runs smoothly and efficiently. By fostering effective communication and streamlined workflows, the expedited procedure can significantly reduce the time required for skilled workers to obtain the necessary approvals and begin their employment in Germany.
