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Business Immigration to Germany by Non-EU Citizens

As Europe emerges from the financial crisis, Germany has once more become a key destination for business immigration writes Stefan Kirchner.
Rule of law, political stability, security, high tech companies, affordable and high quality education and a low level of corruption make Germany and attractive destination for high value investors. In particular cities with an international outlook, such as Frankfurt am Main, Germany's economic center where about one out of three people have an immigrant background, attract investors who also wish to live in Germany. Given Asia's economic growth, Germany becomes ever more interesting for immigrants from Asian countries, such as India, China, South Korea and Japan. As non-EU citizens, Indian citizens gave to comply with the Law on the Residence, Work and Integration of Foreigners in the Federal Territory (Aufenthaltsgesetz, hereinafter: Residence Law) if they want to live and work in Germany. (It has to be noted that the law also applies to ships which fly the German flag, § 4 (4) Residence Law.)

§ 4 (3) 1 of the Residence Law requires foreigners (i.e., persons from outside the EU and a small number of European non-EU states) to have a residence permit in order to be allowed to live and work in Germany. According to among the different avenues to a residence permit for Germany are a number of rules in German immigration law, which aim specifically at business immigration for both employees and self-employed immigrants. Not taking into account special cases under § 4 (2) 3 Residence Law under which the federal government can grant exceptional permissions, foreigners require a residence permit in order to work there and the residence permit will indicate whether it already includes a work permit. In so far, the unified permit, i.e. a combined residence and work permit, is the norm.

There can be cases in which the residence permit does not include a work permit and every employer is obliged under § 4 (3) 4 Residence Law to ensure that all employees have the necessary permits. In fact, the employer has to have a copy of the valid permits at all times during which the foreigner is employed. A residence permit will usually only be granted if the immigrant’s livelihood is guaranteed (§ 5 (1) Residence Law). This guarantee can be provided e.g. by bank statements or by third parties who already reside in Germany. In cases of private immigration it is common that a German national who invited the immigrant also guarantees to ensure that the immigrant does not have to rely on welfare once he or she has entered Germany. This might at first pose a hurdle for immigrants with less financial means but it is a hurdle which can be reduced to a mere formality if approached correctly. A practical problem can also be found in § 5 (2) 1 Residence Law which requires that the immigrant has entered Germany with the correct type of visa. It is therefore necessary to be well advised already in the early stages of the immigration procedure. Residence permits are time-limited (§ 7 (1) AufG), to have it prolonged, the immigrant needs to have participated in an integration course (§ 7 (3) 1 and § 44a (1) 1 AufG), unless the permit has be granted under § 25 (1), (2) or (3) AufG.

While the residence permit is the type of permit which is normally sought after by foreigners who wish to work in Germany for a limited time, German immigration law also allows for long-term immigration and indeed permanent immigration: The Niederlassungserlaubnis or settlement permit is a special type of residence permit which is not time-limited (§ 9 (1) 1 Residence Law) and automatically includes a work permit. Under § 9 (2) Residence Law a foreigner who has had a (temporary) residence permit for at least five years is entitled to a settlement permit if his or her livelihood is guaranteed, he or she poses no public security risk, has contributed to a pension system for at least 5 years (these contributions do not have to be continuous and can also include time taken for maternity leave etc.), speaks the language and is well integrated into society. Integration and language courses which provide the necessary level of information are widely available all over Germany and cater to diverse groups of immigrants, from low-level education manual workers to highly skilled international professionals. Although often thought by foreigners to be a major obstacle, the language barrier is in practice much less problematic than often expected.

Even outside special programs (e.g. for IT experts), qualified immigrants are given a number of measures to make immigration easier. Self-employed foreigners can easily get a residence permit if they invest at least 250,000 EUR and create five jobs (§ 21 (1) 2 Residence Law), a rule which is now applied to get immigrants quick access to Germany, also in the context of acquiring real estate in Germany. § 21 (4) Residence Law also allows such investors to apply for a permanent permit already after three instead of five years. Highly qualified immigrants, such as technical experts, particularly experienced employees in leading positions, scientists, researchers and university graduates can benefit from a special provision (§ 19 Residence Law) which allows them to apply for settlement permits without having to fulfill all the usual requirements outlined above, in particular without having to wait for five years. Essentially, § 19 Residence Law opens the door to permanent residence in Germany right away.

German immigration law therefore rewards the work of immigrants by giving them the chance not only to improve their status but also to make Germany their home. This includes the possibility to include the spouse in the settlement permit (in case of a married couple, only one of the spouses needs to fulfill the requirements in order for both to be able to claim a settlement permit, § 5 (3) Residence Law) but also the changes in Germany’s nationality law to the effect that children of immigrants can now gain German nationality, and thereby automatically EU citizenship, much more easily than used to be the case. Germany’s openness to immigration in the last fifty years has transformed the country, in particular the urban regions, into a multi-cultural place which provides many more opportunities for immigrants than many other developed countries.

STEFAN KIRCHNER is the CEO of crushing-borders.com, a project of the Frankfurt office of Rechtsanwaltskanzlei Kirchner.
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