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Fiction of non-employment
All information from the lawyer on the so-called “non-employment fictions” (§ 30 BeschV).
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what a fiction of non-employment is
what kinds of cases of deemed non-employment exist
what the conditions for fictions of non-employment are
what risks are associated with fictions of non-employment
1. What is a fiction of non-employment?
2. What is considered a fiction of non-employment?
3. Examination of a deemed non-employment
4. Applicability of non-employment fictions
5. FAQ Non-Employment Fiction
6. Conclusion
1. What is a fiction of non-employment?
In principle, (third-country nationals) in Germany require a residence permit with work authorization to pursue employment ( § 4a AufenthG ). This applies regardless of whether it is dependent employment with a company or self-employment. The Residence Act requires explicit permission to engage in the activity in these cases.
However, the legislator has created exceptions for certain situations (see Section 30 of the Employment Ordinance ). Certain activities (although conceptually work) are not considered employment in the sense of immigration law – they are therefore subject to a so-called fiction of non-employment. While such activities are conceptually "employment," they are legally treated as if they were not. This eliminates the requirement to obtain a work permit for these activities. The fiction of non-employment may therefore be invoked even if the visa states, for example, "Employment not permitted."
2. What is considered a fiction of non-employment?
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 (up to 90 days):
Activities of CEOs and senior executives (§ 3 No. 1, No. 2 BeschV)
Business trip : Contract negotiations, contract monitoring and trade fair visits (§ 16 No. 2 BeschV)
Business trip: Monitoring and control of company divisions (§ 16 No. 3 BeschV)
certain forms of posting (§ 29 para. 5 BeschV)
certain company-sponsored training courses (§ 17 BeschV)
certain deliveries of goods (§ 19 BeschV)
Non-employment fictions according to special international agreements (e.g. Brexit agreement)
In addition, there are other specific non-employment exemptions—for example, for flight personnel, 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.
3. Examination of a deemed non-employment
The application of deemed non-employment provisions carries risks . If an activity is mistakenly classified as exempt from licensing requirements and then carried out (even though a license would have been necessary), criminal prosecution for illegal employment may ensue. To avoid legal uncertainties, very careful consultation is therefore strongly recommended before commencing any activity.
If there is uncertainty about the classification of an activity, an explanatory letter can be included with the visa application. If a Schengen visa is subsequently granted with knowledge of the planned activity, this supports the legality of the activity. In the event of later disputes, this would argue against any criminal intent – an important protective argument for the applicant.
4. Applicability of non-employment fictions
Deemed non-employment applies 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 for long-term employment. For long-term employment, a corresponding D-type work visa (e.g., pursuant to Section 19c of the Residence Act) would have to be applied for.
For citizens of so-called "positive countries"—that is, nationals of countries that are permitted to enter Germany without a visa—the application of the deemed non-employment rule is relatively straightforward. These individuals can enter Germany under this rule and begin working immediately. Citizens of "negative countries," who are subject to visa requirements, must, however, apply for a Schengen visa in advance and should clearly explain their intended work and its legal classification.
5. FAQ Non-Employment Fiction
What is a fiction of non-employment?
A deemed non-employment exists when certain activities are not legally considered "employment" in the sense of immigration law – even though they are in fact work. In these cases, no work permit is required (§ 30 BeschV).
How do I check whether my activity falls under a deemed non-employment provision?
Have your occupation individually assessed. An incorrect assessment can lead to legal consequences. An explanatory letter accompanying your visa application can provide legal protection.
6. Conclusion
Deemed non-employment provides an important legal exception for certain short-term activities in Germany – without requiring a work permit . It creates flexibility for international business trips , management positions , or project-based assignments. However, it also requires careful examination and legal classification, as incorrect assumptions can quickly lead to serious consequences . Anyone unsure whether an activity falls under a deemed non-employment provision should definitely seek expert advice to avoid legal risks and ensure they are on the safe side.
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Further Information
List of Sources (Paywall)
[1] Andreas Dippe in Huber edition 2021 on § 4a AufenthG
[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)