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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 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
1. What is a fiction of non-employment?
2. What is considered a non-employment fiction?
3. Examination of a fictitious 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, 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 legally treated as if they were not. This eliminates the requirement to obtain a work permit for these activities. The non-employment fiction may therefore be performed 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 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 fictitious non-employment
The application 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 protection 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" nationals—i.e., citizens of countries who are permitted to enter Germany without a visa—the application of the "non-employment" provision is comparatively straightforward. These individuals can enter Germany under the "non-employment" provision and begin work immediately. Negative 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.
5. FAQ Non-employment fiction
What is a fiction of non-employment?
A deemed non-employment situation exists when certain activities are not legally considered "employment" in the sense 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 deemed non-employment condition?
Have your activity individually assessed. An incorrect assessment can lead to criminal consequences. Submitting an explanatory letter with your visa application can help protect yourself legally.
6. Conclusion
Non-employment fictions offer 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.
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Further Information
List of Sources (Paywall)
[1] Andreas Dippe in Huber Edition 2021 on Section 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)