What does § 39 AufenthG regulate?
§ Section 39 of the Residence Act (AufenthG), Consent to Employment of Foreign Nationals, is a crucial section for anyone who wants to work in Germany as a foreign national. It determines the conditions under which you can obtain a work permit and the role played by the approval of the Federal Employment Agency. For many, this approval is an important step towards securing Residence permit and being allowed to work legally in Germany.
General overview of § 39 AufenthG
If you would like to work in Germany but are not from an EU member state, Section 39 of the Residence Act is particularly relevant for you. This section regulates when a work permit is required and which criteria must be met. The approval of the Federal Employment Agency is often a necessary prerequisite for securing your Residence permit and being allowed to work in Germany.
- Approval requirement: In most cases, you will need the approval of the Federal Employment Agency before you can take up employment.
- Labor market check: This approval will only be granted if it has been established that you as a foreigner are not employed under less favorable working conditions than comparable domestic employees.
The wording of the legal basis can be found in Section 39 (1) AufenthG:
Legal text: "The granting of a residence title for the purpose of employment requires the consent of the Federal Employment Agency, unless such consent is not required by law, on the basis of the Employment Ordinance or a provision in an intergovernmental agreement. Consent may be granted if this is stipulated by law, the Employment Ordinance or an intergovernmental agreement."
Requirements for consent to employment
Certain requirements must be met for you to receive approval for employment and thus also the basis for your Residence permit :
- Availability of domestic workers: It is checked whether there are also domestic workers for the position you wish to fill who must be given priority.
- Fair working conditions: The conditions under which you will work must correspond to those that also apply to domestic employees and that the occupation is responsible in terms of labor market and integration policy.
- Suitable qualifications: You must have the necessary qualifications for the position you are applying for.
When is consent to employment required?
If you want to work in Germany, the question often arises as to whether you need approval from the Federal Employment Agency. This approval is an important step to ensure that your employment is legally secure and that you can keep or extend your Residence permit .
Cases in which consent is required
In many cases, the approval of the Federal Employment Agency is essential before you can take up work in Germany.
Here are some typical situations in which consent is required:
- Employment in non-highly qualified professions: If you wish to work in an occupation that does not require a specific high qualification, consent is usually required.
- Change of employer: If you wish to change employer, you may need to obtain approval again, even if you are already working in Germany.
- First-time employment: If you are starting work in Germany for the first time, in most cases you will need to obtain permission.
With these residence permits, consent is required in accordance with Section 39 (2) AufenthG:
- §§ Sections 18a, 18b AufenthG
- If the requirements of Section 18g (1) sentence 2 or Section 18g (2) AufenthG must be met
- § Section 16d (3), Sections 19, 19b, 19c ( 3) or Section 19d (1) no. 1 AufenthG
- Pursuant to Section 39 (3a), if the Federal Agency agrees to qualified domestic employment pursuant to Section 20a (5) sentence 2 AufenthG
Section 18g (2) is subject to a specific requirement pursuant to Section 39 (2c) AufenthG:
"The Federal Employment Agency may approve the exercise of employment if, in the case of Section 18g (2), the person has skills, knowledge and abilities acquired through professional experience which meet all the requirements of Section 18g (2) and which are necessary for the exercise of employment in an occupation belonging to groups 133 or 25 according to the Commission Recommendation of October 29, 2009 on the use of the International Standard Classification of Occupations (ISCO-08) (OJ L 292, 10.11.2009, p. 31)."
The approval process by the Federal Employment Agency
If you are seeking employment in Germany, it is important to understand how the approval process of the Federal Employment Agency works. This process is crucial to obtaining your work permit and thus securing your Residence permit .
How does the approval process work?
The approval procedure of the Federal Employment Agency consists of several steps to ensure that your employment meets the legal requirements.
Here is an overview of the typical procedure:
Step 1: Application:
- Both your future employer and you as a foreign employee can submit the application for approval for employment. When you apply for a residence permit at the relevant Foreigners' office , the application will then be forwarded to the Federal Employment Agency.
- This application contains important information such as the type of employment, the working conditions and your qualifications.
Step 2: Labor market test:
- The Federal Employment Agency checks whether there are no preferential domestic or equivalent employees available for the advertised position.
- During this phase, it is also checked whether the working conditions comply with the legal requirements.
Step 3: Decision:
- Once the review has been completed, the Federal Employment Agency decides whether to grant approval.
- Both you and your employer will be informed of this decision.
Duration and conditions of consent
The Federal Employment Agency has two weeks to send the approval for employment to the responsible Foreigners' office . If no decision is made within this period, a fictitious consent is given, which means that the consent is deemed to have been granted if there are no missing or incomplete documents
Factors that can influence the duration:
- Completeness of the application documents: If all the required documents have been submitted correctly, this can speed up the process.
- Necessary examinations: For certain professions or with a high number of applicants, the labor market test may take longer.
Requirements for the granting of consent:
- Suitable qualifications: Your qualifications must meet the requirements of the advertised position.
- Appropriate working conditions: The conditions under which you will work must not be worse than those for comparable domestic employees.
- No availability of domestic employees: No preferred domestic employee may be available for the position.
Section 39 (2a) AufenthG states when consent is valid:
"Approval shall be deemed to have been granted if the Federal Employment Agency has determined for individual professions or occupations that filling vacant positions for a limited period of time with the working conditions stipulated in the collective agreement or by the Federal Employment Agency is justifiable in terms of labor market and integration policy (global approval) and the employer has assured compliance. The competent authority pursuant to Section 71 may deviate from the global agreement in individual cases. In this case, Section 72 (7) shall apply accordingly."
Employment without approval according to § 39 AufenthG
There are situations in which you can work in Germany without having to obtain approval from the Federal Employment Agency. This can make the process much easier and faster. But which professions and cases are actually approval-free? Let's take a closer look.
Which professions do not require approval?
Certain professions are exempt from the approval requirement under Section 39 AufenthG due to their high level of qualification or particular importance for the German economy. These professions that do not require approval allow you to work directly in Germany without having to go through the additional step of obtaining approval.
Typical professions that do not require approval are
- IT specialists: Due to the high demand for qualified specialists in the IT sector, there is often no need for consent here.
- Scientists and researchers: If you work in a scientific or research-oriented profession, you can usually work without consent.
- Managers and executives: Consent is not required for certain management positions, as these positions are considered particularly important for the company.
Further exceptions to the consent requirement
In addition to certain professions, there are other exceptions for which you do not need the approval of the Federal Employment Agency:
- Highly qualified specialists: If you are filling a highly qualified position, for example as an IT specialist or scientist, you often do not need approval.
- EU Blue Card holder: If you are in possession of an EU Blue Card in accordance with Section 18g, you are generally exempt from the obligation to obtain consent (with the exception of the examples above)
- Employment during your studies: If you work as a student in Germany, you do not need approval under certain conditions.
Rights and obligations of employers and employees
If you want to work in Germany as a foreign employee, it is important to know both your rights and your employer's obligations. This information will help you to better navigate the complex world of work in Germany and ensure that your employment is legally secure.
Employer obligations when hiring foreigners
Your employer has a number of obligations to fulfill if they wish to employ you as a foreign worker. These obligations ensure that the labor market remains fair and that all legal regulations are complied with.
Here are the most important tasks that your employer must take on:
- Applying for approval: If necessary, your employer must obtain approval from the Federal Employment Agency in accordance with Section 39 AufenthG. This is done before you are allowed to start work.
- Checking the work permit: Your employer is obliged to check whether you have the necessary work permit and whether it is valid for the intended activity.
- Compliance with working conditions: Your employer must ensure that the working conditions offered to you comply with the legal requirements and are in line with those of comparable domestic employees.
- Reporting obligations: There are certain notifications that your employer must make to the relevant authorities, particularly if your residence status or employment conditions change.
Rights of employees in the case of employment requiring consent
As a foreign employee, you also have rights that ensure that your employment takes place under fair conditions and that your interests are protected. The following rights are particularly important for you in the case of employment requiring approval:
- Right to equal working conditions: You have the right to work under the same conditions as domestic employees. This applies to salary as well as working hours and other working conditions.
- Right to timely information: You must be informed about all steps in the approval process, in particular about the date from which you are legally permitted to work.
- Right to legal support: If you believe that your rights are being violated, you have the right to seek legal assistance. This can be provided by a lawyer or an advice center.
- Right to transparency: Your employer must provide you with comprehensive information about your rights and obligations in connection with your employment and residence status.
Summary of rights and obligations:
Obligations of the employer | Rights of the employee |
|---|---|
Applying for consent (§ 39 AufenthG) | Right to equal working conditions |
Verification of the work permit | Right to timely information |
Compliance with legal working conditions | Right to legal support |
Fulfillment of reporting obligations | Right to transparency |
By being aware of your rights and your employer's obligations, you can ensure that your employment in Germany not only complies with legal requirements, but also takes place under fair and equitable conditions.
Do you have any questions?
Conclusion on consent to employment
Finally, we would like to summarize the most important aspects of Section 39 AufenthG for you. These key points will help you to better understand the requirements and exceptions and to plan your next steps.
The key points of Section 39 AufenthG
- § Section 39 AufenthG regulates the approval of employment for foreign workers in Germany.
- Consent is often required for non-highly qualified professions or when changing employer.
- There are exceptions, particularly for highly qualified skilled workers and holders of the EU Blue Card.
Important advice on § 39 AufenthG
- Check at an early stage whether your desired employment is subject to approval.
- Make sure that your employer completes all necessary applications and checks in good time.
- Find out about exemptions that may apply to your situation to make the process easier.
FAQ - The most important questions about § 39 AufenthG
§ Section 39 AufenthG regulates when foreign employees in Germany require approval for employment from the Federal Employment Agency.
Consent is required if you want to work in a profession that does not require a special high qualification or if you change employer.
Highly qualified skilled workers, holders of the EU Blue Card and certain professions within the framework of training and study programs are exempt from the approval requirement.
The procedure usually takes 2 weeks, but can vary depending on the case.
Your employer can apply for approval from the Federal Employment Agency, but you can also submit an application for approval to the relevant Foreigners' office when your residence permit is issued or extended. The Foreigners' office will forward this application to the Federal Employment Agency.
