Fiction of Non-Employment
All information on the so-called “non-employment fictions” (Section 30 BeschV).
Share:
Here you learn ...
what a non-employment fiction is
what cases of non-employment fiction exist
what the prerequisites for non-employment fictions are
what risks there are with non-employment fictions
Table of contents
1. What is a non-employment fiction?
2. What is considered a fiction of non-employment?
3. Examination of a fiction of non-employment
4. Applicability of non-employment fictions
5. FAQ Non-employment fiction
6. Conclusion
1. What is a non-employment fiction?
In principle, foreign nationals (who are third-country nationals) in Germany require a residence permit with a work permit to pursue gainful employment ( Section 4a of the Residence Act ). This applies regardless of whether the employment is dependent on a company or self-employment. In these cases, the Residence Act requires an explicit permit to pursue the activity .
However, the legislature has created exceptions for certain situations (see Section 30 of the Employment Ordinance ). Certain activities (although they are conceptually considered work) are not considered employment under the immigration law – they are therefore subject to a so-called non-employment fiction. While such activities are conceptually considered "employment," they are treated legally as if they were not. This eliminates the requirement to obtain a work permit for these activities. The non-employment fiction may therefore be carried out even if the visa states, for example, "gainful employment not permitted."
2. What is considered a non-employment fiction?
According to Section 30 of the Employment Ordinance (BeschV), the following activities are not considered employment within the meaning of the Residence Act if they are carried out for a limited period of time (up to 90 days):
Activities of CEOs and senior employees (Section 3 No. 1, No. 2 BeschV)
Business trip : contract negotiations, contract monitoring and trade fair visits (Section 16 No. 2 BeschV)
Business trip: Monitoring and control of parts of the company (Section 16 No. 3 BeschV
certain forms of posting (Section 29 (5) BeschV)
certain in-company training courses (Section 17 BeschV)
certain work deliveries (Section 19 BeschV)
Non-employment fictions under special international agreements (e.g. Brexit agreement)
In addition, there are other specific non-employment exemptions – for example, for flight crew, seafarers, charitable or religious workers, and foreign journalists. However, these exceptions are very specific and should be legally reviewed on a case-by-case basis. For an individual assessment, we recommend consulting an experienced immigration and employment law attorney.
Contact us
Are you looking for a lawyer specializing in German immigration and visa law? We are happy to assist you with residence procedures before embassies, immigration authorities, and administrative courts. Our specialised attorneys are always by your side. Contact us to book an online appointment with a German immigration lawyer!
3. Examination of a fiction of non-employment
The use of fictional non-employment is associated with risks . If an activity is falsely classified as exempt from a permit and then carried out (although a permit would have been required), criminal consequences for illegal employment may arise. To avoid legal uncertainty, careful consultation is strongly recommended before commencing the activity.
If there is uncertainty about the classification of an activity, an explanatory letter can be attached to the visa application. If a Schengen visa is subsequently issued with knowledge of the intended activity, this indicates that the activity is permissible. In the event of subsequent disputes, this would argue against criminal intent – an important protective argument for the applicant.
4. Applicability of non-employment fictions
Non-employment fictions apply exclusively to short-term stays of up to 90 days within a specific period (see Section 30 of the Employment Ordinance). They are therefore only suitable for temporary activities that do not aim at long-term employment. For long-term activities, a corresponding D work visa (e.g., according to Section 19c of the Residence Act) would have to be applied for.
For so-called "positive state" nationals—i.e., citizens of countries who are permitted to enter Germany without a visa—the application of the non-employment fiction is comparatively straightforward. These individuals can enter Germany under the non-employment fiction and begin work immediately. Negative state nationals, who are subject to a visa requirement, must apply for a Schengen visa in advance and should clearly explain their activity and its legal classification.
Contact us
Are you looking for a lawyer specializing in German immigration and visa law? We are happy to assist you with residence procedures before embassies, immigration authorities, and administrative courts. Our specialised attorneys are always by your side. Contact us to book an online appointment with a German immigration lawyer!
5. FAQ Non-employment fiction
What is a non-employment fiction?
A deemed non-employment situation exists when certain activities are not legally considered "employment" within the meaning of residence law – even though they are in fact work. In these cases, no work permit is required (Section 30 of the Employment Ordinance).
How do I check whether my activity falls under a fiction of non-employment?
Have your activity individually reviewed. An incorrect assessment can lead to criminal prosecution. An explanatory letter with your visa application can help protect you legally.
6. Conclusion
Non-employment fictions provide an important legal exception for certain short-term activities in Germany – without requiring a work permit. They create scope for international business trips, management positions, or project-related assignments. At the same time, however, they require careful examination and legal classification, as incorrect assumptions can quickly lead to serious consequences. Anyone unsure whether an activity falls under a non-employment fiction should definitely seek expert advice to avoid legal risks and be on the safe side.
This might also interest you
Further information
List of sources
[1] Andreas Dippe in Huber Edition 2021 on Section 4a Residence Act
[2] Offer/Mävers, Employment Ordinance, 2nd edition 2022, §§ 1 ff.
[3] Section 30 of the Ordinance on the Employment of Foreign Nationals (Employment Ordinance - BeschV) of 6 June 2013 (Federal Law Gazette I p. 1499), last amended by Article 1 of the Ordinance of 7 December 2023 (Federal Law Gazette 2023 I No. 353)
