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Notice on Work Permit Regulations for Foreign Students, Academics and Scientists from non-EU and non-EEA Countries.

1. IN PRINCIPLE

Foreigners may only take up employment if they hold a permit issued by the employment office (Arbeitsamt) (§ 284 Abs.1 SGB III). The employment office may only issue a work permit if the foreigner holds a residence permit issued in accordance with § 5 AuslG. Foreign students, academics and scientists from non-EU and non-EEA countries are given permission to reside in Germany in the form of an Aufenthaltsbewilligung (§§ 5 Nr. 3, 28, 29, AuslG).

Citizens from EU countries, from EEA countries and from Switzerland enjoy special status under Community Law and the right to free movement, including for employment purposes. The following sections therefore apply exclusively to foreigners who are not citizens of the European Union or of an EAA country.

2. WORK-PERMIT-FREE EMPLOYMENT

Teaching staff, academic and research staff, and assistants working in higher education, research institutions, etc.

In accordance with §9 Nr.8 ArGV (Regulation on Work Permits for Foreign Employees) the employment of teaching staff, academic and research staff, and assistants working in higher education or of research staff working in publicsector research organisations or research institutions whose financial resources are exclusively or largely provided from public funds, or at private research institutions, if there is also a public interest in the employment of the foreign staff member due to his/her special expertise and knowledge does not require a work permit (work-permit-free employment).

Students and pupils working at universities, colleges and Fachhochschule universities of applied sciences in Germany

Foreign students and pupils working at universities, colleges an Fachhochschule universities of applied sciences in Germany may take on temporary employment if this employment does not exceed three months per year (§ 9 Nr.9 ArGV). This work-permit-free employment, which must not exceed 90 days in total, is also to be permitted outside of the non-semester (vacation) period (Ziff. 28.5.3.1 AuslG-VwV).

It is possible to split the 90 day total into work days or work periods. However, it should be noted that the current legislation specifies that a working day consisting of only four hours or even less is also to be counted as a full day under this regulation. This means that part-time work is also limited to 90 days per year. Student employees and their employers are responsible for ensuring that the 90 day rule is not exceeded by checking the work-permit-free employment times which have already been used by an individual in the course of the current calendar year.

Students attending a Studienkolleg (preparatory course) or a preparatory language course. It is not permitted to take up employment during a preparatory language course.

Students attending a Studienkolleg (preparatory course) can be permitted to take up temporary employment during the semester breaks (vacations) (9 Nr.9 ArGV, Ziff.28.5.3.3 AuslG-VwV). It is prohibited to take up employment at times outside of vacations. This is documented by an appropriate entry in the passport.

Practical trainees/interns

Students from foreign universities or colleges also do not require a work permit to complete a period of practical training, work experience or an internship lasting up to six months if that work has a direct and content-related connection to the trainee's/intern's studies and is completed within the framework of an international exchange programme agreed between student education and comparable institutions and has been agreed with the Central Employment Agency (Zentralstelle für Arbeitsvermittlung - ZAV) of the Federal Employment Office (Bundesanstalt für Arbeit) (§ 9 Nr. 15 ArGV). Neither is a work permit required for persons completing temporary practical training/work experience/internships within the framework of a programme financed by the European Union, if the work has been agreed with the ZAV (§ 9 Nr.17 ArGV).

Other work-permit-free employment (90 day rule) outside of such practical training/work experience/internships is not permitted.
Spouses of foreign scientists, academics and students whose residence can be approved under the stipulations of § 29 AuslG (Underlying principle for Art. 6, Creation and Maintenance of the Family Unit) are not allowed to take up work-permitfree employment.

3. EMPLOYMENT REQUIRING A WORK PERMIT

Any employment which exceeds the 90 days per year rule requires, on the one hand, Approval by the Aliens' Registration Authority (Ausländerbehörde) (extension of visa conditions entered into the passport) and, on the other, Permission from the Employment Office.

Approval by the Aliens' Registration Authority:

- for student casual or temporary work in higher education or at another academic, scientific of research institution.

A period of employment extending beyond the 90 day limit can only be approved as part-time employment if this does not change the study-only residence purpose and if the fulfilment of that purpose is not substantially obstructed or delayed (§ 28 Abs.2 S.2 AuslG, Ziff. 28.5.3.2 AuslG-VwV).

Therefore, and without prejudice to work-permit related legislation and regulations, any longer-term employment can only be considered in exceptional circumstances, for example, temporary employment of the student at a university, college or other scientific, academic or research institution (Ziff.28.5.3.2).

- in the event of a financial emergency (need)

Approval for longer-term employment may also be considered if the student is experiencing a financial emergency (need) which has not been caused by himself/herself or his/her relatives and if the studies, under consideration of the particular difficulties which foreigners may experience when studying, have so far been purposefully and specifically pursued and if the university or college confirms that it may be assumed that the student will successfully complete his/her studies (Ziff.28.5.3.4).

Permission by the Employment Office:

- no negative effect on the labour market; Priority rule According to § 285 Abs.1 SGB III a work permit may be issued if


1. the employment of foreigners has no negative effects on the labour market (…) and

2. German employees or foreigners who have the same legal status as these regarding the right to take up employment are not available for the position in question (priority rule).

3. In view of the current unfavourable labour market conditions, applications for a work permit only have little prospect of success.

The employment office (Arbeitsamt) is obliged to observe the priority rule, which means that a work permit can only be issued for a specific position if no suitable German applicant or applicant from an EU or EEA country with equal legal status to a German is available for the position in question.

- Hardship clause

In derogation of this regulation, a work permit may be issued - despite the fact that the labour market is unfavourable and that other employees have priority - if the refusal to do so would constitute particular hardship under consideration of the particular conditions of the individual case (Härtefallregelung § 1 Abs.2 ArGV; §§ 285 Abs.2, 288 Abs.1 Nr.2 SGB III).

According to the hardship clause, foreigners may be allowed to take up employment for particular social reasons, although this may contradict the priority rule. To assess a case of hardship, the decisive guiding principle in times of long-term high unemployment is that the persons to whom the hardship clause applies would be and would remain dependent on state welfare if they did not receive a work permit on grounds of hardship, a fact which cannot be reconciled with the obligation to protect human dignity/rights, if the foreigner cannot reasonably be expected to return to his/her own country in the foreseeable future or if this is not possible. This exemption cannot generally be applied to students, since a student is only temporarily resident in Germany for the express purpose of studying.

- Public interest in employing foreign academics, scientists and experts According to § 5 Nr.1 ASAV (Regulation on the exemption ruling on issuing work permits to newly-arriving foreign employees / Recruitment stop exceptional provision - ASAV) scientists and academics may be issued with a work permit for employment in teaching and research on account of their specialist skills, expertise and knowledge. This also applies to experts who hold a university or college or equivalent qualification.

In both cases there must be a public interest in the employment of that person on account of his/her particular skills, expertise and knowledge. This is also a discretionary decision. This particular public interest may be affirmed and established when the general public's interests supporting and confirming the decision to employ the foreigner outweigh other considerations. This balance of interests must also, inter alia, take account of labour market conditions and the priority rule.

4. Errors of judgement by the authorities in the use of these discretionary powers may be appealed at court, although the administrative court is only permitted to review the lawfulness of the decision (the administrative act) and not the expediency of that decision. The appeal court must take into consideration the authority's margin of discretion and must, in particular, not exercise any discretionary powers of its own.
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