March 1, 2021 marked one year since the introduction of the Skilled Workers Act to German immigration law. Its objective was to facilitate the immigration of non-EU nationals to Germany for the purpose of employment/vocational education and thus to help address Germany’s shortage of skilled workers in various economic areas such as IT, the health sector and the trades. In particular, new legal bases for skilled workers and trainees were created that should attract more foreign nationals to immigrate to Germany. Besides that, the often long processes for obtaining visas to enter Germany should be shortened by the implementation of a so-called fast-track procedure for skilled workers.
Given the impact of the corona crisis on travel and migration around the globe over the last year (and hence almost the entire time the Skilled Workers Act has been in place), it is hard to fully evaluate its success.
Yet, one year after its introduction, many high-ranking German politicians have been summarizing the impact of the law as positive to a large extent, despite the effects of the coronavirus on immigration overall. However, some practitioners in the field of business immigration beg to differ. In particular, the functionality of the fast-track procedure and the practicability of the legal basis for IT-specialists remain doubtful.
Due to the fact that many German immigration offices and consulates/embassies abroad have been closed or working with skeleton staff over the past year, a final review of the functionality and benefits of this process cannot be undertaken yet.
The fast-track procedure was implemented for two main reasons:
First and foremost to reduce the overall processing times of obtaining visas for skilled workers. This should be ensured with definite timelines for certain steps that need to be taken by German authorities within this process, which subsequently should lead to the granting of earlier visa appointments with the German Representative Office abroad.
Secondly, highly qualified foreign nationals should be enabled to have their employers based in Germany start the process with the relevant immigration office, rather than initiating the process with the German Representative Office abroad themselves.
For that, each German federal state was supposed to create specialized and centralized immigration offices for the sole purpose of facilitating these processes. Shortly before the law became effective though, it was already clear that not all of the federal states would do so. Bavaria, for example, did not follow the aforementioned recommendation by the German government, while North Rhine-Westphalia established a centralized immigration office responsible for the whole state, based in Cologne. As the immigration office at the place of the employer’s branch is responsible for initiation of the fast-track procedure, employers first have to verify which authority is responsible for the particular process. This, however, can be quite challenging and time-consuming, given the inconsistency of federal states’ approaches. Besides that, each authority may have slightly different requirements in documents and information they require from the employer and foreign national. Only once all the required documents are handed in, the above-mentioned set timelines for the authorities begin.
This also lays out one major problem with the fast-track procedure:
While there are deadlines for each step of the procedure once started, there is no deadline for the authority to initiate the procedure itself. It can take several weeks to have a procedure started, depending on the workload and responsiveness of the authority. That, of course, is lost time for any employer and skilled worker.
Further to that the question remains if the German Representative Office will be able to grant visa appointments within the determined timelines once travel and migration are back to normal. There are many German Consulates and Embassies around the world where waiting times for visa appointments have run to several months over the last years. Skilled workers who follow the fast-track procedure should receive appointments within two weeks after sharing the pre-approval of the immigration office in Germany with the German Representative Office. This, of course, can only be facilitated if there are capacities for these applications and if Representative Office are not understaffed. It is also at least questionable what will happen to applicants who follow the regular route. Will their waiting times further increase as skilled workers are prioritized?
Overall, the implementation of this procedure has shown positive initial results and may be a viable option for certain processes. Yet, there are many process improvements and clarifications to be made before it fully reaches its potential.
Permit for IT specialists
While labor immigration to Germany is generally mainly open to highly-qualified personnel (in other words individuals who have a vocational education or a university degree that is comparable to a German university degree), this newly invented legal basis applies to specialists in the IT sector who do not have either. Because the IT sector evolved quickly, there are many specialists in this field without a formal education and who are partially self-trained. Those individuals should now be drawn to Germany by the implementation of this legal basis, as Germany has a remarkable shortage in this area.
Despite the good intention, one of the requirements to obtain this permit type is B1 level proficiency in German, which rules out many possible applicants. While the language skills can be waived in justified cases, this requirement has led to the situation that this permit type has not been used as often as it could have been.
To summarize, some legal changes that have been made within the implementation of the Skilled Workers Act may be helpful for labor immigration in the future. Once all involved parties have grown comfortable with the fast-track procedure in particular, it may be beneficial for the overall process. As yet, the bureaucratic approach, the understaffing in German Representative Office abroad and, of course, the effects of the Covid-19 crisis, have held back its full potential. A final evaluation on the success of the Skilled Workers Act on labor immigration will have to wait for the time being.