Gründung

Entry and residence permit I

I. General

The Act on the Residence, Employment and Integration of Foreigners in the Federal Territory (Residence Act - AufenthG) and the Ordinance on the Employment of Foreigners (Employment Regulation - BeschV) contain general regulations on the right of residence that require foreigners to have a residence title in order to enter or stay in Germany. Foreigners entering and staying in Germany must also have a valid passport or passport replacement.
The residence title required in each individual case is determined by the purpose of the stay in the federal territory. According to the Residence Act, residence titles that entitle the holder to enter and stay in Germany are issued in the form of a visa, residence permit, settlement permit, permanent residence permit, EU Blue Card or (mobile) ICT card. First-time entry into the country still requires a visa for the Federal Republic, which can then be converted into a residence permit. Special rules apply for EU citizens.

II. Citizens of the Union

There is "freedom of movement" for employees and self-employed persons within the member states of the European Union. As a result, citizens of EU member states are basically on an equal footing with German citizens when it comes to exercising their employment. They can enter Germany without a visa and take up employment. EU citizens do not require a separate residence permit. As with Germans, they are only required to register with the registration authorities and to prove their identity with a valid passport or a passport substitute issued in leu of a passport.
Details on the employment of foreign employees can be found in the fact sheet „Foreigners' Law II“.

III. Non-EU citizens (hereinafter: foreigners)

Short stays requiring a visa

Foreigners who wish to stay in germany for a short time, for example for tourist, cultural, sporting, scientific or other private purposes, require a so-called "Schengen visa". This visa entitles the holder not only to enter and stay in the Federal Republic of Germany, but also to enter the member states of the Schengen area.
In addition to Germany, the following countries fully implement the Schengen acquis: Austria, Belgium, Croatia, the Czech Republic, Denmark, Estonia, Finland, France, Greece, Hungary, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Poland, Portugal (including the autonomous regions of the Azores and Madeira), Sweden, Slovakia, Slovenia, Spain (including the autonomous community of the Canary Islands), Iceland, Norway, Switzerland and Liechtenstein.
The partial acquis implementing states Bulgaria, Romania and Cyprus do not yet issue uniform Schengen visas. The Schengen visa does not entitle the holder to pursue employment. Individual occupations that do not require a permit, such as the activities of scientists, journalists and business travelers who conduct meetings or negotiations in Germany for an employer based abroad, conclude contracts or supervise the implementation of a contract, can be carried out with a Schengen visa. The visa is valid for up to 90 days per period of 180 days from the date of entry, if the issuance requirements of the "Visa Code" are met.

In particular, plausible evidence must be provided concerning the

  • purpose of entry into Germany
  • Ability to pay or living expenses and travel costs from own assets or income
  • Willingness to leave the Schengen area before the visa expires
  • possession of a travel health insurance valid in the entire Schengen area and for the entire duration of stay (minimum coverage: 30,000 Euro)
If it is not possible to provide evidence of one's own financing, the financing can be proven by a third person by submitting a formal sponsorship declaration in accordance with Sections 66 and 68 of the Residence Act. As a general rule responsible for receiving such a declaration is the foreigners autho-rity at the place of residence of the person making the commitment.
If the period of validity has not yet expired, Schengen visas can be extended up to a total stay of 90 days per period of 180 days. In certain, narrowly defined exceptional cases, Schengen visas can be extended for another 90 days within this 180-day period.

For underage applicants:

  • A birth certificate must be submitted.
  • The visa application form must be signed by both parents.
  • Certified copies of parental passports must be attached.
  • They must also give written consent, which is notarized, for the minor child to travel alone.
  • In the case of sole custody, a certified court order granting custody must be submitted.

Visa-required stays of more than 180 or 90 days respectively

For a stay of more than 180 days, or 90 days (if there is a period of less than 180 days between the stays), one must apply for a national visa. The national visa is only valid for Germany, but in conjunction with a valid travel document it entitles the holder to stay up to three months in a period of six months in other Schengen states. It can be issued and extended from the outset with ancillary provisions or subsequently linked to conditions, for example a spatial restriction.
During the period of residence, gainful employment is generally excluded. However, foreigners may be granted a residence title for the purpose of gainful employment if the Federal Employment Agency has given its consent in accordance with Section 39 of the Residence Act, or if it is stipulated by law that employment may be pursued without the consent of the Federal Employment Agency. Restrictions imposed by the Federal Employment Agency are documented in the residence title.
Gainful employment in this context means any self-employed or employed activity that is profit-seeking or for which a fee is agreed or for which the payment of a fee is customary. Undertaking an independent activity does not require the separate approval of the Federal Employment Agency. For example, the approval of the Employment Agency is not required for:
  • Members of the driving personnel in cross-border passenger and freight transport (§ 20 Be-schV).
  • Employees of foreign companies who set up, assemble, install or maintain imported and commercially used machines, systems or programs for electronic data processing, if the stay does not exceed three months per year (Section 19, Paragraph 1, Sentence 1, No. 1 BeschV).
  • Employees of foreign companies who conduct meetings or negotiations and conclude contracts (Section 16 No. 2 BeschV).
The national visa is usually issued for a period of three months, in exceptional cases for a maximum of one year. Before the expiry of its validity period, the permit corresponding to the purpose of stay must be applied for. As a rule, the purpose of stay must be the same as that stated when the visa was issued.

Entry and residence for gainful employment

In order to take up employment and/or self-employment, foreigners generally require a residence title (e.g. visa, residence or settlement permit) that allows them to take up such employment. The approval by the Federal Employment Agency, which is generally required for a dependent employment relationship, must be included in the residence title as well as with any restrictions. The application must be submitted to the relevant German diplomatic mission abroad prior to entry. The application is forwarded via the Federal Foreign Office to the foreigners authority responsible for the intended place of residence with the request for approval.
Irrespective of the result of the examination by the respective foreigners authority, the foreign diplomatic mission makes the sole decision on the issuance of the entry visa. If a foreigner is already legally residing in Germany, the application must be submitted directly to the local foreigners authority.
For longer-term stays, a distinction is made between the temporary residence permit and the permanent settlement permit.

Residence permit

A residence permit is a temporary residence title that can be issued for the purpose of education, employment, family, international, humanitarian or political reasons. The time limit is set taking the intended purpose of residence into account. As a rule, the granting of a residence permit requires that the foreigner's subsistence is assured, that he/she has entered Germany with the required visum and that he/she has already provided the information relevant for the granting of the residence permit in the visa application.
If the granting of the residence permit is at the discretion of the authorities, the passport obligation must be complied with and the stay of the foreigner must not impair or endanger the interests of the Federal Republic of Germany for any other reason. The issuance and extention of the residence permit can be subject to conditions. Those conditions can also be subsequently atta-ched to the permit, in particular in the form of a spatial restriction.
Access to residence permits has been simplified since March 2020 for foreign skilled workers and persons who wish to stay in the Federal Republic of Germany to pursue their occupation or for educational purposes (in particular training, further education or studies). In some cases, the Federal Employment Agency no longer has to carry out a priority check before giving its approval. Furthermore, by virtue of an agreement between the foreigners authority and the future employer authorized by the skilled worker, the newly introduced accelerated procedure for skilled workers to obtain a residence permit can be initiated.
Details can be found in the information sheet "Foreigners Law II - Employment".

Settlement permit

A settlement permit must be issued if a foreigner
  • has held a residence permit for five years,
  • has paid at least 60 months of compulsory or voluntary contributions to the statutory pension insurance scheme,
  • has not caused any danger or committed any violations, so that reasons of public safety and order are not opposed,
  • has an employment permit (if he/she is an employee)
  • is in possession of the other permits required for the permanent pursuit of his/her gainful activity,
  • can secure his/her livelihood,
  • has basic knowledge of the legal and social order and living conditions in the Federal Republic,
  • has sufficient knowledge of the German language.
The settlement permit can be granted to a self-employed foreigner who holds a residence permit to § 21 AufenthG even after three years. The prerequisite is that he/she
  • has successfully realized his/her business activity,
  • can sustainably secure his/her livelihood and that of his/her dependents living with him/her, to whom he/she is obliged to provide maintenance, through his/her income and
  • has not caused any danger or committed any violations, so that reasons of public safety and order are not opposed.
Beyond that, the granting of settlement permits to skilled workers is stipulated in Section 18c of the Residence Act. The term "skilled workers" refers to both foreigners with a professional qualification ("qualifizierte Berufsausbildung“) and those with an academic education.
A specialist may also be granted an establishment permit without the consent of the Federal Employ-ment Agency if he or she
  • has been in possession of a residence permit for four years, which was issued for the pursuit of qualified employment corresponding to the qualification (professional qualification or studies),
  • is the lawful holder of a job,
  • can demonstrate sufficient knowledge of the German language,
  • is able to secure its own livelihood,
  • has not caused any danger or committed any violations, so that no reasons of public safety and order are opposed,
  • is in possession of the other permits required for the permanent exercise of their respective gainful activity.
  • has a basic knowledge of the legal and social order as well as of the living conditions in the federal territory,
  • can provide sufficient living space for herself and her family members living with her in the same household, and
  • can present an employment permit, if she is an employee,
Knowledge of the German language as well as the German legal and social system is deemed to have been demonstrated, if proof of the successful completion of an integration course can be provided. In cases of hardship or in the event of impossibility to meet the requirements due to illness, the law does not require the aforementioned knowledge. In the case of health-related impossibility, the livelihood must not be secured by own means and the benefits to the statutory pension insurance must not have been paid (to the full extent). The required period of possession of the residence title is reduced if proof of a successfully completed domestic vocational training qualification (training or studies) is provided.
For holders of an EU Blue Card, the same criteria apply in a weakened form.
A highly qualified person with academic training can be granted a settlement permit without the approval of the Federal Employment Agency in special cases in accordance with Section 18c (3) of the Residence Act. Highly qualified persons with several years of professional experience are in particular:
  • Scientists with special technical knowledge or
  • Faculty/academic staff in prominent positions.
For this purpose, the respective person must provide assurance
  • of their integration into the living conditions in Germany,
  • of the securing of their livelihood without state assistance and
  • that no danger has been caused or violations have been committed, so that reasons of public safety and order do not oppose it.
A settlement permit is granted for an unlimited period of time and territory, and only in cases provided by law with incidental provisions. This means that foreigners can reside and settle freely in the entire federal territory. In fact, in this respect they are on equal legal footing with German citizens.

Permit for permanent residence - EU

Foreigners who have the legal status of long-term residents in another member state of the European Union are generally granted a residence permit in accordance with Section 38a of the Residence Act if they intend to stay in Germany for more than 90 days. If this permit is to be issued for study or other educational purposes, Sections 16a and 16b of the Residence Act shall apply accordingly. If Section 16a of the Residence Act is applicable, the residence title is issued without the consent of the Federal Employment Agency.
The Permit of Permanent EU Residence is intended to improve intra-european mobility. Qualitatively, it is equivalent to the settlement permit, so that in this respect, the same rules apply, unless the law expressly provides otherwise.
In principle, the following requirements must be met for such a permit to be issued:
  • The foreigner has been legally resident in Germany for at least five years.
  • The livelihood and that of the dependents he/she is required to support is secured by fixed and regular income.
  • He/she has sufficient knowledge of the German language, the legal and social order and living conditions in Germany.
  • He/she has not caused any hazards or committed any violations, so that there are no reasons for public safety and order to the contrary.
  • He/she has sufficient living space for him/herself and his/her family living with him/her.
The permit for permanent EU residence is indefinite. It does not only entitle to exercise an employment, if the Federal Employment Agency has agreed or if by legal exception the approval of the Federal Employment Agency is not necessary, it allows to exercise a self-employed activity as well.
For the purpose of studies, vocational training or further education, this residence title is to be issued detached from the aforementioned prerequisites if the respective person is already residing in the fe-deral territory with a corresponding residence permit.

Residence permit for asylum seekers

According to the Asylum Act, arriving asylum seekers are granted a residence permit, which is usually subject to conditions. For example, for the duration of an asylum seeker's obligation to live in a reception center, he or she may not engage in gainful employment. In addition, asylum seekers who have been tolerated in the territory of the Federal Republic of Germany for six months pursuant to Section 60a of the Residence Act may be permitted to pursue employment if the Federal Employment Agency has given its consent or if it is stipulated by law that the pursuit of employment is permitted without the consent of the Federal Employment Agency.
In addition, the residence permit is spatially limited to the district of the foreigners authority in which the responsible reception facility of the asylum seeker is located. After applying for asylum, he/she is issued a certificate of residence, unless he/she is in possession of a residence title.

Deferral of expulsion (exceptional leave to remain, („Duldung“)

Even if the granting of a residence title is not possible (for example, in the case of a reason for expulsion, unsecured livelihood, impairment or endangerment of the interests of the Federal Republic of Germany), the residence of foreigners can be tolerated for a maximum of three months for reasons of international law or urgent humanitarian reasons or to safeguard the political interests of the Federal Republic of Germany, Section 60a (1) of the Residence Act.
In cases of particular hardship, the supreme state authority can order that a residence permit will be issued for a longer period. This instrument gives a legal residence status to foreigners whose stay cannot be terminated, for example, due to an obstacle to expulsion ("de facto refugees"). After four years, those foreigners are then granted equal access to the labor market.

Introduction of an "opportunity right of residence" according to § 104c AufenthG

Article 1 of the Law on the Introduction of a Right of Opportunity to Stay (dated December 31, 2022) has now created a new option for acquiring a right to stay in Germany.
The aim is to enable foreigners who have been tolerated for many years to meet the requirements for a right to stay in Germany. The prerequisites for acquiring this right include, in particular, knowledge of the German language, proof of identity, and the ability to secure a livelihood.
Persons who have lived in Germany for five years as of October 31, 2022, on the basis of toleration, permission, or a residence permit, can receive an 18-month right of residence („Chancenaufenthaltsrecht“). However, the applicant must have declared his or her support for the free democratic basic order. This does not apply to criminals and so-called "identity fraudsters" who want to avoid expulsion.
The residence permit is issued for 18 months and cannot be extended. When this permit is issued, foreigners must be informed that they will be issued a (permanent) residence permit in accordance with Section 25b of the Residence Act or Section 25a of the Residence Act if they are under 27 years of age. If the requirements for the residence permit are not met after 18 months, the foreigner will be (re)transferred to the tolerated status.

Refugees from Ukraine

In accordance with Section 24 (1) of the Residence Act, refugees from Ukraine receive a residence permit for temporary protection. The residence permit allows the refugees unrestricted access to the labor market.
In addition, the Federal Ministry of the Interior has recommended to the federal states that the competent foreign state authorities should enter permission to take up employment directly in the residence title. Qualified specialists can also apply for a residence permit for the purpose of employment if they meet the requirements.
Member companies of the Cologne Chamber of Industry and Commerce and all persons planning to start a business in the Cologne region can obtain further information here. Please contact us!