Residence permit procedure: Does the authority also have to inform the employer?

Recruiting highly qualified academic professionals from the USA , Great Britain , or Canada is often a lengthy process for German companies. The employment contract is signed, the HR department has prepared everything, but then the visa application of the prospective top employee disappears into the bureaucratic maze . For weeks, there is radio silence. For employers, the immigration process remains a complete black box. They don't know whether documents are missing, nor when a decision can be expected. This not only jeopardizes operational planning security but also presents companies with massive compliance challenges. As a law firm, we see daily how this lack of transparency leads to existential problems – both for the expats and for the HR departments. But does the employer actually have a right to be informed by the immigration authorities ? Dr. Sebastian Klaus is now seeking a court ruling to clarify this fundamental question.

Why have visa procedures been a black box for employers until now?

In current legal practice, employers are generally not treated as parties to the immigration process by the immigration authorities . The residency procedure is formally conducted as a bilateral matter between the foreign young professional or skilled worker and the German state. If employers do not represent their new employees as authorized representatives under Section 14 Paragraph 3 of the Administrative Procedure Act (VwVfG) by means of an explicit power of attorney , they usually receive no information from the authorities. This situation is untenable for globally operating companies that recruit talent from non- EU countries. They bear the economic risk, have to plan salary structures and help organize accommodation , but are treated legally as outsiders.

Bureaucratic arbitrariness in everyday life: What does the actual practice look like?

Anyone familiar with the daily practice of immigration law knows that the administrative reality is characterized by extreme arbitrariness. There is currently no uniform policy in Germany: While some authorities strictly refuse to exchange even a single word with the HR department without written authorization, others take the opposite approach. Particularly with large, well-known corporations, we repeatedly see immigration authorities communicating almost exclusively with the employer – leaving the actual applicant, the foreign employee, completely in the dark and bypassed in the process. Smaller authorities, in particular, often operate without a clear policy and purely on gut feeling. This unpredictable practice clearly demonstrates that the system remains prone to errors and unprofessional without judicial oversight.

Is there a legal obligation to involve employers?

Our legal opinion as a law firm differs significantly from the actual practice of many migration authorities. The Administrative Procedure Act (VwVfG) does indeed offer a way to open this black box. According to Section 13 Paragraph 1 No. 4 in conjunction with Paragraph 2 VwVfG , an administrative authority has the option of involving other third parties whose interests are affected by the proceedings, either ex officio or upon application. In certain cases under Section 13 Paragraph 2 Sentence 2 VwVfG, there is even a legal obligation to involve them. We maintain that employers in cases of labor migration should be involved ex officio and without a separate application , as the outcome of the visa procedure directly affects their core interests as contractual partners. This view is certainly controversial in legal scholarship, but is prominently supported by statements from the Confederation of German Employers' Associations (BDA) and the digital association Bitkom in the context of discussions surrounding the "Work and Stay Agency."

Which strategy ensures the flow of information even before the verdict?

Until the administrative courts issue a final ruling, companies cannot afford to lose valuable time in the onboarding process. The most important line of defense against the information vacuum from the authorities is seamless, strategic communication between employer and employee. Companies must ensure that the foreign employee remains accessible to the authorities at all times and immediately relays incoming messages. Since the authorities often formally ignore the employer, the employee must act as a reliable source of information. To ensure this process is legally sound and to strategically increase pressure on the authorities, it is advisable to engage a specialized lawyer or relocator early on. We ensure that information flows are professionally managed and that no deadlines are missed.

What is the purpose of the current lawsuit before the administrative court?

To establish legal clarity for the entire practice of skilled worker immigration , Dr. Sebastian Klaus has filed a landmark lawsuit. The administrative courts must now definitively clarify the extent to which immigration authorities are legally obligated to inform employers about important milestones and procedural steps in their employees' application processes. The aim of this lawsuit is to end the current lack of transparency and secure an independent, legally protected position for employers in the process. Should the courts follow our arguments, this would revolutionize HR processes for recruiting talent from the USA , UK , or Canada, as authorities would no longer be able to arbitrarily cut off the flow of information.

What advantages does this process already offer for your HR compliance?

Even though the outcome of the legal proceedings is still pending, the lawsuit already offers enormous strategic added value for companies. Even if the administrative courts ultimately interpret the obligation to consult the authorities more narrowly, the ruling will set precise guidelines. The court's clarification will allow employers to know exactly to what extent they must independently monitor an employee's immigration status alongside their employment. This creates legal certainty for internal compliance processes. Companies will learn precisely where their own obligations end and where the authorities' responsibility begins, thus preventing substantial fines for illegal employment from the outset.

Conclusion

The question of whether immigration authorities are obligated to actively inform employers during residency procedures touches upon the core of modern, efficient labor migration. The current lack of transparency and arbitrary administrative practices hinder Germany's economic competitiveness and create uncertainty for highly qualified expats and their families alike. With the lawsuit filed by Dr. Sebastian Klaus, our law firm is taking the decisive step to resolve this legal uncertainty through judicial review. Regardless of the final ruling, the court proceedings will sustainably strengthen compliance processes in HR departments and define how the interaction between businesses and immigration authorities must look in the future. At VisaGuard, we will keep you continuously informed about the developments in this groundbreaking case and are already supporting you in making your visa procedures legally compliant and transparent.