Services for Employee Leasing

Many employers are interested in temporary work nowadays. As a rule of thumb, this type of work in Germany is severely restricted by §40 I no. 2 AufenthG. Due to this regulation, the Employment Agency must reject an application for a work permit if it is to be a temporary job. This is the general rule! Certain types of residence status are not affected by the prohibition. When entering Germany to take up employment, this prohibition always applies to the main applicant.

Typical cases for Permitted Temporary Work

§40 I AufenthG is to be seen in connection with §39 AufenthG. As a rule, a work permit requires the approval of the Federal Employment Agency - but in certain cases, it does not. In practice, this can be out of sight because the employee only has to deal with the immigration office. Nevertheless, the immigration office always obtains this approval - internally amongst the agencies - from the employment agency. In principle, all foreigners require not only a residence permit but also a work permit (§4 II I AufenthG). If the residence permit already provides for an unlimited work permit, only then is temporary employment automatically open to a foreigner. If the work permit is unrestricted after two years of continuous employment subject to social security contributions, then a foreigner can be loaned out for employment without further ado.

As an employer or hirer, how can you easily determine if your desired candidate is eligible to work as a temporary employee? It's simple! Study the residence permit and look for a status. If it says: "Erwerbstätigkeit gestattet", then it means that any kind of gainful employment (both freelance / self-employed and for employment) is possible. If only "Beschäftigung erlaubt" is noted, then temporary work is possible, but no freelance / other self-employment). Anything else means that the work permit is somehow restricted.

Probably some examples will help you to recognize these situations.

• The candidate has the settlement permit or "settlement permit EU", aka permanent residency(see §§9 I 2 AufenthG or §9a I 2 AufenthG),
• The candidate is a recognized asylum seeker or refugee under the Geneva Refugee Convention or enjoys subsidiary protection (§25 I 4 AufenthG),
• The candidate is either married to a German citizen or to a foreigner with a residence permit (§27 IV AufenthG),
• The candidate has had a residence permit for "proper employment" for at least two years (§§18 et seq. AufenthG in conjunction with §9 I No. 1 BeschV),
• Candidate has a residence permit for a "normal" Blue Card for at least two years (§19a AufenthG i.c.w. §9 I No. 1 BeschV) or
• Indirectly for "qualified" Blue Cards (§2 BeschV):
  - with a monthly salary of at least € 4,466 in Western Germany and € 4,100 in Eastern Germany
  - be a graduate of a German university and have a job in the MINT sector with a minimum salary of € 3,484 in Western Germany or € 3,198 in Eastern Germany.

A permit from the Employment Agency is not required in the above cases, as the law provides for an indefinite work permit or waives the permit normally required.

The new permits for ICT cards or mobile ICT cards are conceptually excluded from temporary employment under §§40, 39 AufenthG, as they usually require the approval of the Agentur für Arbeit.

Effects of an invalid temporary employment permit

If the Employment Agency detects illegal temporary employment, the issued permit can be revoked (§§3, 4 AÜG). As a consequence of the subsequent loss of the temporary work permit by the employer, the residence permit of the applicant is also at risk (§52 II AufenthG). In case of doubt, the employment is illegal. Investigation proceedings may then be initiated against the employer, temporary worker, and temporary worker. Beware!

Suitable form of enterprise

What is a suitable form of enterprise, for a company that hires temporary workers? The law does not require a specific form. Practically speaking, the most common form will be a GmbH, but a UG works just as well legally. This shows the strength of these two forms of companies. Don't have a company yet? If so, we will be happy to help you with incorporating.