HR annual audits: What should be considered when dealing with foreign employees?

Annual performance reviews have been conducted, budgets for the coming year have been allocated, and new contracts are awaiting signature. However, for employees from third countries, a crucial check is often missing at this stage. A German residence permit for employment is not a general right to work anywhere and in any capacity. It is frequently tied to a specific job, a particular employer, and conditions such as salary or working hours. If any of these factors change, a permit may be revoked. The immigration authorities or a notification to them may be required. As the law firm VISAGUARD.Berlin , we therefore clearly advise HR departments: The residency check should be carried out before announcing promotions and contract changes, not afterward.

Why is a residence permit not a free pass for any job?

Since the reform of While the German Residence Act (AufenthG) stipulates the principle that employment is permitted for skilled worker immigration unless explicitly prohibited or restricted ( § 4a para. 1 AufenthG ), in practice many residence permits for foreign nationals contain restrictions. Skilled workers face precisely such restrictions. Employment is then only permitted, for example, "at Company X as a Senior Engineer," because the Federal Employment Agency requires its approval after... Section 39 of the Residence Act has been granted for this specific position. If this is the case, any change to this restriction requires approval. Section 4a paragraph 3 of the Residence Act (AufenthG) provides for a permit from the Immigration Office .

The supplementary sheet shows how close the relationship is in each individual case. Residence permit and its supplementary provisions. This crucial aspect is often overlooked in many companies because the HR system usually only stores the permit's expiry date.

What applies when a promotion brings new responsibilities?

A new job title with essentially the same tasks is usually unproblematic. The situation is different, however, if the job changes substantially, for example, if a specialist role becomes a management position with a completely different scope. In such cases, a new official review and, if necessary, new approval from the Federal Employment Agency may be required before the person can take up the new position.

The area is particularly sensitive. EU Blue Card . After According to Section 18g of the Residence Act, employment must be commensurate with the employee's qualifications. If a person changes jobs... Software developer with completed For those studying computer science and pursuing a career in sales or recruiting, this requirement may not apply. For titles after... While Section 18b of the German Residence Act (AufenthG) has relaxed the connection between qualification and employment, qualified employment remains a prerequisite. Our rule of thumb from our consulting practice: the further the new role deviates from the original application, the sooner the residence permit should be addressed.

Is a transfer within the same company considered a change of employer?

Yes, and that surprises many HR managers. Under immigration law, only the legal entity that... Employment contract concluded. If the team, supervisors, and desk remain the same, but a new one is drawn up. Signing an employment contract with another company within the group constitutes a change of employer. If the title is tied to the previous employer, prior approval is required. For holders of EU Blue Card is coming soon Section 18g of the Residence Act adds an additional notification requirement in the event of a change of workplace during the first twelve months.

Equally important is looking at longer timeframes. Postings abroad as part of international career planning. A residence permit generally expires if the person stays outside Germany for more than six months ( § 51 para. 1 no. 7 AufenthG ). For Blue Card holders and their For families, an extended period of twelve months applies ( § 51 para. 10 AufenthG ). Anyone who... Anyone planning a posting abroad should therefore secure their return with legal protection under immigration law.

What happens in the case of part-time work or a salary reduction?

Part-time work after parental leave, a restructuring, or reclassification into a new salary band directly affects residency rights if the title is tied to a minimum salary. For the The EU Blue Card has annually adjusted salary thresholds. If the gross annual salary falls below these thresholds, a key requirement is no longer met, and the issuing authority can extend the validity period accordingly. Section 7, paragraph 2, sentence 2 of the Residence Act (AufenthG) allows for subsequent shortening of the waiting period. Furthermore, the path to a permanent residence permit can be shortened according to... Section 18c paragraph 2 of the Residence Act extends the validity period if the periods of employment no longer count as Blue Card periods.

Even the The family is affected. spouse and Children often base their stay on the title of the The specialist is removed, and the authority checks the qualifications with each renewal. Securing livelihoods according to Section 5 Paragraph 1 No. 1 of the Residence Act . A well-intentioned reduction in working hours can thus put an entire household in an uncertain situation.

What are the obligations of employers and what are the consequences of making mistakes?

Section 4a paragraph 5 of the Residence Act obliges employers to check whether the title permits the specific activity, to keep a copy for the duration of the employment, and to notify the employer of any early termination within four weeks. The immigration authorities must be notified. Anyone who permits unauthorized employment commits an administrative offense, which is punishable under... Violations of Section 404 Paragraph 2 Number 3 of the German Social Code, Book III (SGB III) can be punished with a fine of up to €500,000. Employees face difficulties with their next permit renewal or application for permanent residency.

From numerous cases, we know that such errors are rarely noticed immediately. Typically, the authorities only discover the discrepancy during the renewal process, when current salary statements and the new [information/document/etc.] are reviewed. An employment contract exists. Many situations can still be rectified at this stage, but the effort is significantly greater. Experience shows that a subsequent correction costs many times more time and explanation.

How can HR departments permanently integrate the audit?

The most effective approach is a fixed review step in the process: Every planned change to the role, company, working hours, or compensation of employees with temporary employment contracts is assessed for compliance with immigration law before being communicated. Additionally, it is advisable to record the change in the HR system, including the expiration date, the type of contract, any supplementary provisions, and relevant salary thresholds. We support employers in setting up such processes, review specific changes promptly, and handle communication with the relevant authorities. LEA .

Conclusion

Promotions, corporate transfers, and new working time models are a normal part of personnel development and should remain so. For foreign employees... However, for skilled workers, a brief residency check is standard procedure before contracts are signed or decisions are announced. Those who ensure that their role, employer, salary, and qualifications are aligned with their residency status in a timely manner protect their employees and their... Family and their own business. VISAGUARD.Berlin supports HR departments and international companies . Skilled workers at precisely this point.