What does § 4a AufenthG regulate?
Section 4a of the Residence Act is a central section of the Residence Act in Germany that regulates access to gainful employment for foreign nationals under the Residence Act. It is crucial for anyone wishing to work in Germany with a Residence permit .
In the following, we will go into the background and the most important definitions that you should know if you are seeking employment in Germany. It is intended to promote the integration of foreigners in Germany.
Legal background of § 4a AufenthG
§ Section 4a of the Residence Act describes the conditions under which foreign nationals may pursue gainful employment in Germany. In principle, people with a Residence permit may work unless there is an explicit prohibition or restriction.
The regulations in Section 4a ensure that clear conditions are created under which gainful employment is permitted or restricted.
Access to the labor market is influenced by various factors:
- Existence of a valid residence permit
- Approvals by competent authorities
- Approval by the Federal Employment Agency in accordance with Section 39 (4) AufenthG (in certain cases)
The basis is § 4a paragraph 1 AufenthG.
Legal text: "Foreigners who hold a Residence permit may pursue gainful employment unless a law prohibits it. Gainful employment may be restricted by law. The exercise of gainful employment that goes beyond the prohibition or restriction requires a permit."
Definitions: Residence permit Gainful employment and employment
In order to fully understand the provisions of Section 4a AufenthG, it is important to clarify the relevant terms.
An Residence permit is an official permit that allows foreign nationals to live and work in Germany. Gainful employment includes any type of work for which a person is paid, while the term employment often more specifically describes employment with an employer.
These distinctions are relevant as they determine whether and how the Federal Employment Agency is involved in the approval process and what rights and obligations apply to employers and employees.
Objective of § 4a AufenthG for the German labor market
The provisions of Section 4a AufenthG help to control access to the labor market for foreign nationals and have clear objectives. On the one hand, they are intended to ensure that qualified skilled workers are allowed to work under certain conditions in order to meet the needs of the German labor market.
On the other hand, they protect the interests of the local labor market by stipulating certain requirements and review procedures, such as priority checks or approval by the Federal Employment Agency.
Requirements for gainful employment according to § 4a AufenthG
In order to be allowed to work in Germany, certain requirements must be met, which are set out in § 4a AufenthG. As a foreign national, you first need a Residence permit that allows you to work. But what does this mean in concrete terms and what special features apply to the various forms of gainful employment?
Residence permit as a prerequisite for gainful employment
The basis for any work activity in Germany is a valid Residence permit. This title must expressly permit gainful employment, otherwise work is not permitted. There are different Residence permit, depending on the purpose and duration of your stay in Germany. Some Residence permit permit unrestricted gainful employment, while others are subject to stricter rules.
There is a clear description of the residence permit in Section 4a (3) AufenthG:
Legal text: "Each Residence permit must indicate whether the exercise of gainful employment is permitted and whether it is subject to restrictions. In addition, restrictions imposed by the Federal Employment Agency on the exercise of employment must be included in the Residence permit . Permission is required to change a restriction in Residence permit . If a Residence permit has been issued for the purpose of exercising a specific occupation, the exercise of any other gainful employment is prohibited as long as and to the extent that the competent authority has not permitted the exercise of the other gainful employment. Sentences 2 and 3 shall not apply if the employer changes as a result of a transfer of business pursuant to Section 613a of the German Civil Code or changes its legal form as a result of a change of legal form."
The most important points you should consider:
- Valid Residence permit: Legal employment is not possible without Residence permit .
- Employment permit: Check whether your Residence permit directly includes the work permit.
- Indication of restrictions: Some Residence permit have specific restrictions on the type and scope of activity.
Differences between employment and occupation
It is important to know the difference between gainful employment and employment, as the law provides different rules for the two forms. Gainful employment includes any form of paid work, whether as an employee, self-employed or freelancer. However, employment refers specifically to working in an employment relationship.
- Gainful employment: Any type of paid work, including self-employment and freelance work.
- Employment: Employment relationship with an employer, usually with fixed working hours and tasks.
This difference is significant, as the authorization requirement often applies specifically to employment while certain forms of self-employment may be possible under simplified conditions.
Permit procedure and exceptional cases
For many Residence permit , the approval of the Federal Employment Agency is required before you are allowed to work as an employee. This approval procedure serves to ensure that access to the German labor market is controlled and managed.
The following steps and requirements often apply:
- Approval from the Federal Employment Agency: In many cases, the Federal Employment Agency must approve your activity. It will check whether the job can be given priority to German employees (priority check).
- Activities exempt from approval: Certain occupational groups or activities are exempt from this approval requirement, such as highly qualified specialists or holders of the EU Blue Card.
- Special cases and exceptions: In special cases, such as seasonal or short-term employment, special provisions apply that deviate from the regular permit procedure.
Authorization for gainful employment and its restrictions
Access to gainful employment for foreign nationals in Germany is often subject to permits and certain conditions. For regular employment in particular, you usually need a permit, which in turn may be subject to various approvals and conditions.
In this section, you will find out which permits are required, what role the Federal Employment Agency plays and in which cases a permit can be refused. In many cases of residence permits according to § 4 AufenthG , a permit is required so that the Residence permit can be issued at all.
Required permits and approvals
For many foreign nationals, no work may be taken up without the required permit. The permit requirement ensures that access to the labor market is controlled and that certain regulations are observed to protect the domestic labor market.
Important points on the authorization requirement:
- Checking the residence permit: The Residence permit must either permit gainful employment or an additional permit is required.
- Special requirements depending on the job: Highly qualified jobs, such as the EU Blue Card, are often subject to less stringent requirements.
- Additional requirements for employers: Employers must ensure that they obtain all necessary permits before hiring a foreign employee.
If your activity is subject to approval, this usually means that the Federal Employment Agency is also involved in the process.
The legal requirement is Section 4a (5) AufenthG:
Legal text: "A foreigner may only be employed or commissioned to perform other paid services or work if he or she holds a Residence permit and there is no prohibition or restriction in this regard. A foreigner who does not have a Residence permit may only be employed under the conditions of paragraph 4 (work permit)."
Role of the Federal Employment Agency (§ 39 AufenthG)
The Federal Employment Agency (BA) plays a central role when it comes to obtaining permission to work in accordance with Section 4a AufenthG. In many cases, the BA checks whether your employment can be approved and whether you meet the requirements. The so-called priority check is often carried out. In many cases, you can only take up gainful employment if you have been granted permission to do so by an authority.
The most important tasks of the Federal Agency in this context:
- Priority check: The BA checks whether a German or EU worker is also available for the position before granting approval for employment.
- Labor market check: In some cases, the BA checks whether the working conditions (e.g. salary, working hours) meet the standards and whether the position can be filled by a foreign employee.
- Temporary permits: The BA can grant its approval for a limited period of time, which means that the employment is only approved for a certain period of time.
However, there are also activities for which the approval of the Federal Agency is not required, such as highly qualified positions or certain professions within the framework of the EU Blue Card.
Situations in which permission can be refused
Even if you meet the necessary requirements, permission to work may be refused in certain situations in accordance with Section 40 (2) or (3) of the Residence Act. This is particularly the case if there are legal obstacles or the protection of the domestic labor market is at risk.
Reasons for a possible refusal of permission:
- Negative priority check: If a German or EU citizen is suitable and available for the position.
- Unfulfilled working conditions: If the working conditions do not meet the minimum requirements (e.g. salary or working hours).
- Restrictions on the residence permit: If the Residence permit contains specific restrictions that exclude the desired gainful employment.
Special features of employment and job changes
If you work in Germany, your employment situation may change - be it due to a job change, the transfer of the company or other circumstances.
In such cases, there are special regulations in Section 4a AufenthG that ensure that your employment remains legally secure and that you do not violate the conditions of your residence permit. Here you can find out what you and your employer need to bear in mind.
Change in the employment relationship in the Residence permit
An important special feature of German residence law is that changes in your employment relationship can affect Residence permit . Not every Residence permit permits a free change of employer or activity.
Often, such changes must first be approved by the competent authority, especially if your Residence permit was originally issued for a specific activity or employer.
Important points for changing the employment relationship:
- Approval required for new employer: If you want to change employer, this often has to be approved by Foreigners' office .
- Adjustment of the residence permit: In some cases, it is necessary to reissue or amend the residence permit in order to legally secure the new activity.
- Inform yourself in good time: contact the competent authority before you change jobs to avoid legal uncertainties.
Effects of transfer of business and change of legal form of the employer
A transfer of business or a change in the legal form of the company can have an impact on your Residence permit . However, Sec. 4a (3) AufenthG provides for exceptions if there is a transfer of business in accordance with Sec. 613a BGB or if the employer changes its legal form.
In these cases, your Residence permit will generally remain valid and your gainful employment will not be affected.
These exceptions apply under the following conditions:
- Transfer of business in accordance with Section 613a BGB: Your employment will continue with the new employer without the need for a new permit.
- Change of legal form of the company: If your employer changes from a GmbH to an AG, for example, your employment rights remain unchanged.
- No change in activity: As long as your activity remains the same, you do not need an additional permit from Foreigners' office.
These regulations are intended to ensure that you can continue to work in a legally secure manner despite changes in the company.
Requirements for employers for monitoring and reporting
When employing foreign nationals, employers have certain obligations that they must comply with in order to be legally protected.
For example, they are obliged to check the required Residence permit and keep it for the duration of the employment. Employers must also inform the responsible Foreigners' office if the employment relationship ends prematurely.
The most important requirements for employers:
- Checking and keeping the residence permit: Employers must ensure that you have a valid Residence permit that entitles you to work.
- Obligation to report termination of employment: If you leave the company, the employer must notify Foreigners' office within four weeks.
- Retention obligation: The Residence permit or the corresponding work permit must be kept for the entire duration of employment, either digitally or as a paper copy.
Differences between short-term and long-term employment
The regulations on gainful employment in Germany differ depending on the duration and type of work. While long-term employment often requires extensive permits and a Residence permit , there are some exceptions for short-term and seasonal work.
This section will help you understand the key differences and what exemptions apply to certain types of employment.
Short-term and seasonal employment in accordance with the Employment Ordinance
Certain jobs that are only carried out for a short period of time are subject to special regulations under the Employment Ordinance. This type of employment is particularly relevant for seasonal workers who only work in Germany for a few months. Contingent short-term employment is therefore permitted.
In such cases, the Employment Ordinance permits simplified approval or even employment without Residence permit if certain conditions are met.
Important regulations for short-term and seasonal employment:
- Duration of employment: Short-term employment is usually limited to a maximum of 90 days per year.
- Permit exemption: For some seasonal activities, such as in agriculture or tourism, a full work permit is not required.
- Approval from the Federal Employment Agency: In certain cases, approval must still be obtained, although this is often granted more quickly and easily.
Gainful employment without Residence permit - legal exceptions
In some special cases, foreign nationals may also work in Germany without Residence permit . However, these exceptions are strictly limited and subject to specific conditions. They mainly apply if there are intergovernmental agreements or a permit has been issued by the competent authority for a specific activity.
Typical cases in which gainful employment is possible without Residence permit :
- Intergovernmental agreements: Some countries have agreements with Germany that allow their citizens to carry out certain activities without Residence permit .
- Special permit: In exceptional cases, an authority may issue a short-term permit for activities that do not require Residence permit , for example for special cultural or sporting events.
- Short-term employment or seasonal employment: An exception may also apply to certain activities that are only permitted in limited numbers and for a short period of time, such as seasonal employment
Conclusion on Section 4a AufenthG
Access to gainful employment in accordance with § 4a AufenthG is very important for the step towards long-term residence in Germany. By fulfilling § 4a AufenthG, you prove that gainful employment and integration are achievable for you. Here we have summarized the most important points for you and drawn a conclusion.
Most important key points of § 4a AufenthG
§ Section 4a AufenthG provides a clear structure for access to gainful employment, but there are several important points to bear in mind:
1. required Residence permit
- You need a valid Residence permit, which explicitly authorizes you to work. Without this permit, legal employment in Germany is not possible.
2. approval requirement and role of the Federal Employment Agency
- Approval from the Federal Employment Agency is required for many jobs, especially in the case of employment. This agency checks whether the position cannot be filled by German or EU citizens by means of a priority check, among other things.
3. differences between gainful employment and employment
- Gainful employment includes any type of paid activity (e.g. also self-employment in accordance with Section 21 AufenthG), while employment refers to an employment relationship. Different approval requirements apply depending on the type of activity.
4. special features of short-term and seasonal employment
- Short-term activities such as seasonal work are often subject to more relaxed regulations and in some cases do not require a permit.
5. regulations for change of employer and transfer of business
- A change of employer or a change in the company may require an adjustment of the residence permit, except in the case of a transfer of business or change of legal form of the employer.
Conclusion and future of Section 4a AufenthG
§ Section 4a AufenthG will continue to be a central aspect for the labor market integration of foreigners in the future. By fulfilling § 4a AufenthG, you create the prerequisites for demonstrating that you have taken a further step towards integration.
The authorization for gainful employment is important so that your future employer can employ you as a foreigner and hire you in accordance with the legal requirements.
FAQ - The most frequently asked questions about § 4a AufenthG
§ Section 4a of the Residence Act stipulates that foreign nationals may only work in Germany with a Residence permit, which entitles them to work. In some cases, the approval of the Federal Employment Agency is also required.
A work permit is required if the employment is subject to approval. The Federal Agency checks whether the working conditions meet the standards and whether German or EU citizens have priority.
Employers must ensure that the foreign employee's Residence permit entitles them to employment. A copy of the residence permit is made accordingly. The employer is obliged to inform Foreigners' office of the end of the employment relationship.
The residence permit can be changed by submitting an application to Foreigners' office. A change of employer or activity usually requires a permit and possibly the approval of the Federal Employment Agency.
"Gainful employment not permitted" means that self-employment is prohibited, while "Employment permitted" allows employment in a company.
