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How binding is the approval of the Federal Employment Agency in the visa procedure?
Why BA approval is often misunderstood
In practice, with employment visas, the impression often arises that the approval of the Federal Employment Agency is equivalent to a preliminary decision on the visa.
An employer submits the declaration regarding the employment relationship. The Federal Employment Agency reviews the case. Approval is granted.
From the perspective of the company and the foreign employee, the crucial part of the process appears to be complete.
If, despite this, a critical inquiry or even a rejection is subsequently made by the German diplomatic mission abroad, the question understandably arises:
Is the embassy even allowed to conduct further review if the Federal Employment Agency has already given its approval?
In our opinion, the answer is:
Yes, the foreign mission is still allowed to conduct a relatively large amount of audits.
The law does not create an unrestricted legal obligation to adhere to all factual or legal assumptions of the Federal Employment Agency.
Conversely, the foreign mission may not simply take over the entire core legal area of the BA audit again.
The crucial question is therefore less whether the embassy is allowed to continue its investigation.
What is crucial is what she is still allowed to check independently.
The legal competence of the Federal Employment Agency
The starting point is Section 39 of the Residence Act.
The regulation governs the conditions under which the Federal Employment Agency can or must approve employment.
In this process, the Federal Employment Agency (BA) is assigned specific labor market-related audit tasks.
The examination of working conditions is particularly relevant.
The Federal Employment Agency investigates in particular whether the foreign worker is to be employed under less favorable working conditions than comparable domestic workers.
Depending on the residence permit and employment basis, further requirements may apply.
Section 39 paragraph 4 of the Residence Act (AufenthG) clearly shows which information is relevant for the BA (Federal Employment Agency) review.
The employer must provide information on, among other things, remuneration, working hours, other working conditions, social security obligations and, where applicable, professional requirements.
The Federal Employment Agency thus has a clearly defined, legally defined function related to the labor market.
It is specifically designed to examine those questions that require expertise related to the labor market.
Approval as an internal administrative participation process
However, the legal nature of consent is dogmatically important.
The Federal Employment Agency does not grant the foreign worker a residence permit.
It does not issue visas.
The decision regarding the visa is made by the German diplomatic mission abroad or, in domestic proceedings, by the responsible immigration authority.
The BA's approval is therefore part of a multi-stage administrative procedure.
Its primary function is internal administrative cooperation between the participating authorities.
This also explains why the Federal Employment Agency often has no direct personal contact with the applicant.
Especially during a preliminary review by the employer, she is usually only familiar with a specific part of the case.
The focus is on employment, the employer, salary and labor market-related conditions.
The foreign mission, on the other hand, has the complete visa application.
She reviews the passport, CV, qualifications, and other documents. She can interview the applicant personally and may be aware of previous visa applications or any immigration-related issues.
This differing factual basis must be taken into account when allocating responsibilities.
Why a positive BA approval does not automatically guarantee a visa
A positive response therefore does not automatically mean that the visa must be granted.
The foreign mission must continue to examine all residency-related requirements that do not fall exclusively within the legal jurisdiction of the Federal Employment Agency (BA).
This could include, for example:
the applicant's identity,
the authenticity of documents,
general requirements for granting the permit,
the actual plausibility of the stated purpose of stay,
the question of whether the employment relationship should be seriously pursued at all,
and other visa requirements.
The visa handbook of the Federal Foreign Office assumes a corresponding division of roles.
The Federal Employment Agency is involved, but does not make the final decision on the visa application.
The final decision regarding the applicant rests with the competent foreign mission.
Which questions fall within the core area of the BA (Federal Employment Agency)?
However, this raises the opposite question:
Which tests should the foreign mission not repeat without further ado?
This is particularly evident in the working conditions.
If the Federal Employment Agency has concluded, based on comparative data, tariff information or other labor market-related information, that a certain salary is appropriate, this assessment falls squarely within the core legal remit of the Federal Employment Agency.
The same applies to classic questions about the comparability of working conditions.
The Federal Employment Agency has the legal responsibility and the corresponding labor market expertise for this.
The situation becomes problematic when a message, after receiving positive feedback, simply arrives at a different assessment related to the labor market.
Example:
The Federal Employment Agency (BA) reviews an employment contract and concludes that the salary is appropriate for the specific job.
The foreign mission subsequently rejects the application solely on the grounds that the salary seems too low for this position.
We believe that such an independent reassessment is legally problematic without additional facts.
Which questions may the foreign mission continue to investigate?
The situation is different with questions that the Federal Employment Agency cannot fully assess due to its function and its information base.
A typical example is the plausibility of the claimed employment.
The Federal Employment Agency (BA) can determine that an employment contract formally exists and that the working conditions agreed upon therein comply with the legal requirements.
However, this does not necessarily mean that the employee and employer actually intend to carry out this employment relationship.
In this case, the foreign mission may have significantly better opportunities to gather information based on an interview or other information.
For example, if an applicant cannot explain what job they are supposed to do, does not know their employer, or provides contradictory information about essential terms of the contract, doubts about the seriousness of the employment relationship may be justified.
In this case, the embassy does not re-examine whether the salary is appropriate in relation to the labor market.
Rather, it checks whether the entire claimed purpose of residence actually exists.
That is a different subject of the examination.
Plausibility check and sham employment relationships
This distinction is particularly relevant in suspected cases.
The Federal Employment Agency did not regularly conduct a personal hearing with the employee.
Therefore, she cannot know whether the applicant is even aware of his alleged employment or whether the employment contract and job offer were merely created for the visa application process.
The Residence Act itself also requires that employment is actually intended to be carried out.
A foreign mission must therefore remain able to verify concrete indications of a sham employment relationship.
However, this must not be used as a pretext to repeat the entire labor market-related review by the Federal Employment Agency.
The decisive factor should be whether there are new or additional facts that the Federal Employment Agency (BA) was unaware of when making its decision.
Where does a problematic double-checking situation begin?
From our point of view, the boundary can be determined functionally.
The more closely a question falls under the explicit examination program of Section 39 of the Residence Act, the less scope there is for a completely independent reassessment by the foreign mission.
Remuneration, comparability of working conditions and other classic labor market-related criteria are primarily the responsibility of the Federal Employment Agency.
In contrast, the plausibility of the purpose of the stay, the authenticity of the employment offer and general visa requirements are matters for the foreign mission.
A problematic double review therefore begins, for example, when the embassy, despite positive approval from the Federal Employment Agency, again evaluates individual clauses of an employment contract exclusively from a labor market perspective or substitutes its own assessment of salary appropriateness for that of the Federal Employment Agency.
The situation is different if the embassy adopts a clause because it provides a concrete indication that the employment relationship may not actually be carried out in earnest.
The subject of the examination is then different.
Importance of preliminary checks and accelerated procedures
The functional distribution of competence becomes even clearer if the Federal Employment Agency has already examined employment before the actual visa procedure.
Such procedures are intended to speed up the subsequent visa process.
This purpose of acceleration would be largely rendered meaningless if the foreign mission subsequently had to completely re-examine all labor market-related issues.
This does not mean that the embassy loses its own responsibility.
However, there is a reason to treat the labor market-related aspects already examined by the relevant authority as generally settled, as long as no new facts or concrete doubts arise.
From our point of view, this does not result in an absolute binding effect in the technical sense.
However, there is a functional competence limit .
The legally prescribed division of labor must not be abolished by one participating authority completely duplicating the tasks of the others.
Our rating
We do not see the BA's approval as having an absolute binding effect in the sense that the foreign mission would only be allowed to issue the visa after receiving positive approval.
Such a view finds no sufficient basis in the law.
The BA approval is an internal administrative matter and relates in particular to labor market-related requirements.
The foreign mission remains responsible for the final visa-related decision and may therefore conduct its own residency-related and factual examinations.
At the same time, however, consent must not be reduced to a practically meaningless recommendation.
Where the legislator explicitly assigns certain labor market-related tests to the Federal Employment Agency, there is much to argue against the foreign mission deciding the same questions completely anew on identical factual grounds.
Therefore, in our view, the correct dividing line is:
Labor market-related specialist review by the Federal Employment Agency – comprehensive residence law and plausibility check by the foreign mission.
A renewed review of key elements of the BA decision is particularly problematic when no new facts are available.
Conversely, further investigation remains justified if the embassy possesses information that was not available to the Federal Agency.
Consequences for employers and employees
This differentiation is particularly important for employers.
A positive BA approval does not mean that the visa application process has already been won.
Therefore, even after consent has been given, employees should be able to explain their work, their employer, and the essential conditions of the employment relationship in a comprehensible manner.
Conversely, a rejection following positive approval from the Federal Employment Agency (BA) should be carefully examined to determine exactly which point the foreign mission is objecting to .
If the complaint concerns a new plausibility issue, the review may be permissible.
If, on the other hand, the embassy assesses the same labor market-related point differently than the Federal Employment Agency, a significant question of competence arises.
This distinction can therefore be crucial, especially in legal proceedings against employment visas.
About the author
Mirko Vorreuter, LL.B., Dipl.-Jur., is a lawyer and specialist in immigration law, as well as the founder and owner of VISAGUARD.Berlin . During his studies, he specialized in German residence and immigration law and has since handled and managed more than 1,000 visa and residence permit applications.
In addition to his legal practice, Mirko Vorreuter works as a specialist author and content creator in the field of German immigration law. Besides his legal training, he holds the academic degrees of Bachelor of Laws (LL.B.) and Diplom-Jurist (Dipl.-Jur.).
He is a member of Corporate Immigration Lawyers Germany (CILG), the Working Group on Migration Law in the German Bar Association (DAV) and the Republican Lawyers' Association (RAV).
List of sources
[1] Section 39 of the Residence Act (AufenthG), consent to employment.
[2] Section 39 paragraph 4 of the Residence Act (AufenthG), employer's obligation to provide information on remuneration, working hours and other working conditions.
[3] Section 40 of the Residence Act (AufenthG), grounds for refusal of consent.
[4] Section 41 of the Residence Act (AufenthG), revocation of consent.
[5] Section 42 of the Residence Act (AufenthG), authorization to issue regulations and right to issue instructions.
[6] Section 18 paragraph 2 of the Residence Act (AufenthG), general conditions for granting residence permits for the purpose of employment.
[7] Sections 35 et seq. Employment Ordinance (BeschV), procedure and validity of consent.
[8] Section 36 Employment Ordinance (BeschV), granting and notification of consent to the competent authority.
[9] Federal Employment Agency, Technical Instructions on the Residence Act and the Employment Ordinance, current version.
[10] Federal Employment Agency, Specialist information on labor market access for foreign workers.
[11] Foreign Office, Visa Handbook, chapter on employment and the involvement of the Federal Employment Agency.
[12] Federal Foreign Office, Visa Handbook, Notes on plausibility checks for employment visas and on the Western Balkans Regulation.
[13] Berlin State Office for Immigration, Procedural Guidelines for Residence in Berlin – VAB, current version, Information on residence permits for employment.
[14] General Administrative Regulation on the Residence Act of 26 October 2009 – AufenthG-VwV, in particular references to Sections 39 et seq. of the Residence Act.
[15] Bergmann/Dienelt, Ausländerrecht, 15th ed. 2025, Commentaries on §§ 39–42 AufenthG.
[16] Hailbronner, Ausländerrecht, Loose-leaf commentary, §§ 39–42 AufenthG and Employment Ordinance.
[17] Kluth/Heusch, BeckOK Ausländerrecht, Commentaries on §§ 39–42 AufenthG.
[18] Hofmann, Ausländerrecht, 3rd ed. 2023, Commentaries on §§ 39 ff. AufenthG.
[19] Huber/Mantel, Residence Act/Asylum Act, 4th ed. 2024, Commentaries on the law of labor migration.
[20] Huber/Eichenhofer/Endes de Oliveira, Residence Law, 2nd ed. 2025, chapter on labor migration and government involvement.
