04.03.2019 | KPMG Law Insights

Objections to the Skilled Worker Immigration Act (FEG): Where does it lead?

Objections to the Skilled Worker Immigration Act (FEG): Where does it lead?

Earlier this year, the federal government introduced the draft FEG in the Bundesrat, which commented on it on Feb. 15, 2019. Criticism has been levelled in particular at the regulations on an accelerated procedure for skilled workers and on central foreigners authorities.

Earlier this year, the federal government introduced the draft FEG in the Bundesrat, which commented on it on Feb. 15, 2019. Criticism has been levelled in particular at the regulations on an accelerated procedure for skilled workers and on central foreigners authorities.

What else are they arguing about?
In general, the Bundesrat does not share the view that the FEG could be adopted without its subsequent approval after it has been passed in the Bundestag. In particular, the detailed specifications on procedures and authority responsibilities are his decisive argument for the consent requirement.
In general, he is skeptical of the establishment of centralized immigration authorities. The accelerated procedure for skilled workers could just as well be conducted by the municipal foreigners authorities. These are usually the cities and counties. In any case, the federal states would have to be able to decide more freely whether or not to create at least one central foreigners authority in each case.
Even though the accelerated procedure for skilled workers as such is viewed positively by the Bundesrat, it is in favor of regulations in detail through a legal ordinance and not in the Residence Act itself. At the same time, he advocates that only domestic employers could initiate this on behalf of the professional.
Elsewhere, he would like to see the obligations of employers reduced: In his opinion, a waiver of the employer’s obligation to notify the foreigner when his employment ends prematurely should be examined; in any case, the period for this should be 4 weeks instead of 2 weeks.
Regrettably, the Federal Council did not question the limitation of the accelerated skilled worker procedure to visas only. According to the first draft bill, central foreigners authorities should also be able to decide on the first long-term residence title after entry.
Thus, the expedited skilled worker procedure only has meaning for the first short-term visa for entry (so-called national visa) at the beginning of immigration. Its accelerating effect would mainly be that it would lead to guaranteed appointments at foreign missions (within three weeks) and processing times there (within another three weeks).
In many countries, this would be a comparatively small advantage with an administrative fee of 411 euros. The situation is different if the visa has to be applied for in India, the Western Balkans or Iran on the part of the applicant. This is because the waiting times for an appointment there are several months, in Iran even more than a year.
While the substantive regulations for the employment of skilled workers have received little criticism from the Bundesrat’s opinion, the situation is different in some cases for accompanying regulations.
For example, it advocated setting a uniform time limit of nine months for opportunities to search for studies and apprenticeships. Meanwhile, employment (of any kind) of up to 20 hours per week should be possible. In terms of time, the possibility for skilled workers to look for a job would even have to be raised to twelve months. Skilled workers should also be given the opportunity to work 20 hours per week, as long as the job is close to their qualifications.
The Federal Council also opposes a trial period of five years for these regulations.
Finally, in his opinion, the possibility of residence titles based on distinct practical professional experience, which was only envisaged in the first draft bill, should be extended to professions outside the IT sector. It should also be possible to designate other bottleneck occupations in an annex to the Employment Ordinance. In both variants, the prerequisite would be that the profession requires knowledge, skills and abilities that are usually acquired in a course of study or through vocational training. In addition, each would need to demonstrate five years of relevant work experience from the last seven years.
Foreigners in other narrow professions would also have to prove language skills at the B1 level; exceptions would only be conceivable if the foreigner had committed himself to an in-service language course in the employment contract. If he or she were already 45 years old, evidence of adequate pension coverage would still be required.

When could the FEG come into force?
Above all, the dispute over the Bundesrat’s approval requirement could lead to major delays in the legislative process. The decisive factor will be whether the Bundestag will forego detailed specifications on the accelerated procedure for skilled workers and whether the establishment of central foreigners authorities will be left largely to the discretion of the federal states. However, this would further devalue the effects through the central foreigners authorities and the accelerated skilled worker procedure.
It would be desirable for the Bundestag to at least discuss the option of creating a central federal authority analogous to the BAMF. This makes binding preliminary decisions throughout Germany in cases of recognition as a person entitled to asylum or as a refugee. This would be an option to bundle specialized knowledge within one authority, to relieve municipal foreigners authorities and foreign missions by binding preliminary decisions and to achieve binding effects for further procedures. This option was recently endorsed by former German Interior Minister Dr. Thomas de Maizière.
In order to meet the target of the FEG coming into force on January 1, 2020, the legislative process would have to be completed with promulgation in the Federal Law Gazette by June 30, 2019. In any case, this is a sporting endeavor because disputes over classification as a consent law are often of a fundamental and protracted nature.

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