The Ordinance on the Employment of Foreigners (Beschäftigungsverordnung) contains rules for the employment of employees from third countries.
In general, third-country nationals need a residence title in order to be employed in Germany. Usually, the Federal Employment Agency (Bundesagentur für Arbeit) must have approved the employment relationship before a residence title for employment can be issued. During the approval process, the Federal Employment Agency checks whether the working conditions are equivalent with those of domestic employees (e.g. comparable wages or number of paid-leave days) and other conditions arising from the relevant legal provisions. The Residence Act (Aufenthaltsgesetz), intergovernmental agreements and the Ordinance on the Employment of Foreigners provide for some exemptions from such approval.
If approval by the Federal Employment Agency is not necessary, the residence title is issued by a German mission abroad or by a Foreigners Registration Office (Ausländerbehörde) without the involvement of the Federal Employment Agency.
The Residence Act contains a finite list of the conditions for the employment of skilled workers (sections 18, 18a, 18b and 39 (2) of the Residence Act). The Ordinance on the Employment of Foreigners does not include provisions for this group of persons. Irrespective of their qualification as a skilled worker, foreign nationals can receive a residence permit for employment under section 19c (1) of the Residence Act, if the Ordinance on the Employment of Foreigners allows such employment. This includes residence titles for managers, senior staff and business travellers, skilled IT workers with a high degree of practical occupational experience, employment as an au pair, seasonal work or professional athletes.
In addition, the employment of foreign nationals with toleration status (Duldung) or of persons whose asylum application is pending is governed by section 61 of the Asylum Act (Asylgesetz). Section 32 of the Ordinance on the Employment of Foreigners defines for which of these cases the approval of the Federal Employment Agency is necessary.
Along with general provisions, the Ordinance on the Employment of Foreigners contains rules on:
- qualified employment,
- temporary employment,
- posted workers,
- special professional groups or groups of persons (e.g. special rules for nationals of certain countries),
- other provisions (employment based on intergovernmental agreements as well as exceptions for short-term employment (Kurzzeitbeschäftigung)),
- employment during residence in Germany for international law, humanitarian or political reasons or employment of persons with toleration status or of persons whose asylum application is pending (Aufenthaltsgestattung),
- procedural provisions,
- recruitment and placement from abroad.
The Ordinance on the Employment of Foreigners of 6 June 2013 (Federal Law Gazette I p. 1499) was last amended by Article 1 of the Ordinance of 18 December 2020 (Federal Law Gazette I p. 3046).