.png)
Short-term assignments and secondment
Global Mobility and Short-Term Secondments in a Single-Contract Model – What is a Secondment Letter?
Share:
What are the differences between positive and negative country-specific regulations regarding entry?
When a Schengen hybrid visa is mandatory for a work permit.
Which mandatory provisions of German labor law also apply to foreign contracts.
How to minimize compliance risks with a professional secondment letter .
1. Which residence permit is required for short-term postings?
2. Which labor law applies to short-term secondments?
3. Compliance and Risk Management through professional support
4. The Secondment Letter as the central document of proof
5. FAQ – Frequently Asked Questions
6. Conclusion
1. Which residence permit is required for short-term postings?
The question of the appropriate residence permit for a short-term secondment under a single-contract model is complex and depends largely on the employee's nationality . In principle, these assignments can take place with or without a visa . Citizens of so-called "positive " countries, who are visa-exempt for short stays, can undertake a secondment without a visa, provided it is a purely business trip ( § 16 of the German Employment Ordinance ) that falls under the so-called " non-employment fiction ." If, however, the employee is a citizen of a "negative" country , a regular Schengen visa is required for the same purpose. As soon as the activity becomes subject to authorization—that is, if it involves active work that goes beyond the scope of a mere business trip—both groups require a Schengen hybrid visa (i.e., a Schengen visa for work) .
The requirements for this hybrid visa are based on the criteria for a national visa (D visa) for employed persons according to Sections 18a and 18b of the German Residence Act (AufenthG) and Section 26 of the German Employment Ordinance (BeschV), provided the stay does not exceed 90 days within any 180- day period. It is, in effect, a "short-term skilled worker visa." Since this visa functions as a legal hybrid between a Schengen visa and a national work visa (D visa) , it must be ensured that both the general conditions for short stays, such as travel health insurance , and the specific labor market requirements are met. Prior approval from the Federal Employment Agency ( Section 39 of the German Residence Act ) is almost always required (for a Schengen visa).
Therefore, when arranging a short-term secondment, it is always essential to first determine whether a work permit is required (i.e., whether it is a purely business trip). If so, all third-country nationals (including those from the USA, UK, Canada, and Australia) must apply for a Schengen work visa. If no work permit is required (i.e., it is a business trip ( § 16 of the German Employment Ordinance ) or acontract for work and services ( § 19 of the German Employment Ordinance)), then citizens of countries with the "positive" entry requirements (e.g., USA , UK , Canada , Australia ) can enter without a visa for the secondment. If visa-free entry is not possible (e.g., India or Pakistan), a Schengen visa must be applied for for the business trip (however, without a work permit/approval from the Federal Employment Agency).
2. Which labor law applies to short-term secondments?
Many companies and HR managers are unsure which labor law regulations apply in Germany to short-term assignments. In our consultations, we always emphasize that German labor law generally does not differentiate based on nationality, but rather on the place of work . While Article 8 of the Rome I Regulation generally allows employers and employees to freely choose the applicable law , this freedom is limited by Article 9 of the Rome I Regulation . Accordingly, mandatory provisions of German law take precedence over the chosen foreign legal system in order to guarantee a minimum level of employee protection.
Among the mandatory regulations is the Posted Workers Act . According to Section 2 Paragraph 1 of the Posted Workers Act, posted workers must be treated in accordance with the standards of the Working Time Act (ArbZG) and the Minimum Wage Act . The Federal Vacation Act , the General Equal Treatment Act (AGG) , and occupational health and safety regulations are also mandatory. We also pay particular attention to the Employment Contract Verification Act (NachwG). For postings lasting more than four weeks, essential conditions, such as the duration of the assignment and the conditions for returning to the home office, must be documented in writing. The Temporary Employment Act (AÜG) , which we discuss in detail in another article, also plays a crucial role.
In contrast to the specific legal aspects of migration and labor law, tax and social security law is relatively straightforward for short-term secondments. In social security, the principle of coverage by residence permit generally applies, provided a social security agreement exists; if such an agreement is lacking, there is a significant risk of double insurance , which must be avoided by a thorough examination of coverage under Section 4 of the German Social Code, Book IV (SGB IV).
3. Compliance and Risk Management through professional support
Short-term secondments using a single-contract model via secondment letters often pose a compliance risk, as it is frequently unclear whether a work permit is required. Although the legislator defines which activities do not require a work permit , the boundaries between permit-free business travel (§ 16 BeschV) and short-term work assignments requiring a permit are fluid in practice. Without professional guidance, companies risk exceeding the scope of the deemed non-employment provision , which can result in substantial penalties.
If an assignment requires a permit, a Schengen hybrid visa (i.e., a Schengen visa with a work permit from the Federal Employment Agency) must be applied for. However, if it is merely a business trip , a secondment letter ensures compliance. In this document, we clearly state that only activities not requiring a permit will take place (see Section 30 of the German Employment Ordinance) and that there will be no integration into the German company, thus refuting any accusation of unauthorized temporary employment . For citizens of countries where the secondment is permitted, this letter serves as a safeguard during border controls or customs inspections ( see Article 5, Paragraph 1(c) of the Schengen Convention ). We also recommend submitting the draft to the relevant German diplomatic mission for approval in advance to ensure absolute legal certainty for both the company and the employee.
4. The Secondment Letter as the central document of proof
If a secondment falls under the legal fiction of non-employment, a formal work visa is not required. In these cases, the secondment letter serves as the most important document that the employee should carry when crossing the border or during any customs checks . It serves as written proof of the temporary nature of the stay and the continued existence of the employment relationship in Germany. This documents that the main focus of the employment relationship remains abroad and that no permanent settlement in the German labor market is intended.
A legally sound template for a secondment letter might look something like this:
“[Letterhead of the sending company]
[addressed to employee to be sent]
Dear [Name of employee],
For our company, [Name of sending company], you will be seconded to Germany for a business trip from [Secondment period]. During this business trip, you will perform the following activities not requiring authorization: [Description of activities].
This is a temporary assignment, during which you will not be integrated into the operational processes of [receiving company/client]. Your habitual residence will remain in [home country], and you will continue to receive your salary in [home country]. After the business trip ends, you will be reintegrated into our branch in [home country] with your employment contract continuing uninterrupted.
Best regards"
%20(1).jpg)
5. FAQ – Frequently Asked Questions
Does every employee need a visa for a 2-week stay in Germany?
No, it depends on nationality. Citizens of countries with positive visa requirements (e.g., USA, Japan) can enter visa-free for purely business trips. Citizens of countries with negative visa requirements need a Schengen visa, even for short stays.
What happens if the activity is classified as "work" after all?
In this case, the employment constitutes illegal employment if no hybrid visa is in place. This can result in fines for the company and entry bans for the employee.
Do I have to pay the German minimum wage?
Yes, the German minimum wage is one of the mandatory provisions that also apply to foreign employers who send staff to Germany, according to the Posted Workers Act.
What is the difference between secondment and temporary staffing?
During a secondment, the employee remains subject to the foreign employer's instructions. If integration into the German company takes place (temporary employment), significantly stricter rules of the German Temporary Employment Act (AÜG) must be observed.
6. Conclusion
Short-term secondments to Germany offer companies great flexibility, but without a thorough examination of visa and labor law, they pose significant risks. A carefully drafted secondment letter and the correct choice of visa type – especially the Schengen hybrid visa – are the cornerstones of a legally sound global mobility strategy. As a specialized law firm, we support you in structuring these processes in a legally compliant manner and maintaining your compliance standards.
You might also be interested in
List of Sources (Paywall)
[1] Federal Ministry of Justice (2024): Residence Act (AufenthG) . Berlin: juris.
[2] European Parliament and Council (2008): Regulation (EC) No 593/2008 on the law applicable to contractual obligations (Rome I) . Brussels: Official Journal of the European Union.
[3] Fuchs, B. (2023): International Employment Law: Secondment and Drafting of Foreign Contracts . 4th ed. Munich: CH Beck.
[4] Müller-Glöge, R., Preis, U. and Schmidt, I. (2024): Erfurter Kommentar zum Arbeitsrecht . 24th ed. Munich: CH Beck.
[5] Welti, F. (2023): Social Security Law of Foreign Assignments . Baden-Baden: Nomos Publishing Company.