Unskilled work after university graduation: How must the employment contract be formulated for § 18b?

It's a situation we encounter repeatedly in our consulting practice, and one that is often life-threatening for those affected: A highly qualified foreigner arrives in Germany with a recognized university degree, for example in IT or engineering, but cannot immediately find direct entry into their field of study. To make ends meet , many initially take on jobs far below their actual qualification level – for example, working as a server in a restaurant or in a kitchen. What was intended as a temporary solution quickly becomes a legal dead end. For the granting of a residence permit for employment , particularly under Section 18b of the German Residence Act (AufenthG ), the authorities require qualified employment . A purely auxiliary role in a restaurant is insufficient, even if the individual could theoretically build rockets. The residence permit is denied because the current job does not meet the legal requirements for a skilled worker . This is precisely where our law firm comes in, to pave the way out of precarious tolerated stay or the threat of deportation through the appropriate contractual arrangements.

The decisive factor: Qualified instead of qualification-appropriate.

The most important legal aspect, which many applicants and employers overlook, is a significant simplification in modern immigration law: Since the latest legislative changes, while employment must be qualified , it no longer needs to be directly related to the applicant's degree . Specifically, this means that a graduate engineer does not necessarily have to work as an engineer to obtain a skilled worker visa . They can also perform other qualified work that would normally require at least two years of vocational training. In practice, this means that for the hospitality industry, simply labeling someone as a "temporary worker" or "service worker" is legally meaningless. Instead, the employment contract must be structured to reflect the professional profile of a skilled hospitality worker or restaurant specialist . Crucially, it's not just the title on paper that matters, but the substantive definition of the job duties. The contract should include tasks such as financial planning, ordering supplies, and monitoring incoming goods . This additional responsibility distinguishes the position from that of an unskilled worker and ensures it meets the skilled worker level required by the Federal Employment Agency (BA).

The art of wording in the employment contract

When we assist clients in this situation, we usually advise against simply drawing up a supplementary agreement to the existing "assistant contract." We generally recommend concluding a completely new employment contract , designed from the outset as a skilled worker contract. A new contract sends a clear signal to the immigration authorities and the Federal Employment Agency that a substantial change in working conditions has taken place. Experience has shown that an overly detailed and lengthy job description can sometimes even be counterproductive. A more effective approach is often to choose a precise job title—for example, "restaurant specialist"—and to refer directly to the Federal Employment Agency's salary atlas . This makes it easier for the agency to review the position, as they can immediately categorize it within their existing framework. The focus must be on ensuring that the tasks described in the contract correspond exactly to the requirements of a recognized Chamber of Industry and Commerce (IHK) apprenticeship. Only if the Federal Employment Agency recognizes that the work requires expertise that goes beyond simply serving food will it approve the employment.

The hurdle of remuneration: Median vs. collective agreement

A critical point when applying for a visa under Section 18b of the German Residence Act (AufenthG) is adequate pay. The authorities scrutinize very carefully whether the salary is customary for the location and the profession to prevent wage dumping. We are currently observing a tightening of administrative practice in this area. While previously the so-called lower quartile of the salary atlas was often sufficient as a minimum, many employment agency staff now require remuneration based on the median salary . In Hamburg, for example, this can make the difference between €2,232 and €2,618 gross. The situation becomes even more complex when generally binding collective bargaining agreements exist for the industry. In such cases, the Federal Employment Agency (BA) increasingly demands that even non-unionized employers adhere to the regional collective agreements. For a small restaurant, this can represent a considerable financial burden. We therefore strongly advise setting the salary in the new contract so that it at least reaches the median salary to avoid rejections and lengthy appeals processes from the outset. It is important to understand that the approval of the Federal Employment Agency (BA) is the bottleneck for the entire visa process – without a coherent salary structure, even the best job description is of little use.

Conclusion: Strategy beats chance

The path from an underqualified job in a kitchen to a legally secure residence permit as a skilled worker is arduous, but entirely achievable with the right legal strategy. The crucial factor is the transformation of the employment relationship: away from unskilled, auxiliary work, towards a contractually agreed-upon skilled position that meets the requirements of the Federal Employment Agency (BA) and the salary guidelines of the German Salary Atlas. Since the approval of the Federal Employment Agency often depends on the individual case worker, precise and professional preparation of the documents is essential. Simply continuing with the old contract almost inevitably leads to visa rejection for academics in unskilled jobs.

How our law firm can help you with Visaguard

As a specialized law firm for immigration law, we understand the complexities of changing one's status as an academic in Germany. We not only assess the recognition of your foreign degree , but also work with your employer to draft employment contracts precisely tailored to the requirements of Sections 18a and 18b of the German Residence Act (AufenthG ). We handle communication with the Federal Employment Agency and the immigration authorities to ensure that your professional qualifications and your actual work are legally aligned. Trust in our experience to build a secure foundation for your future in Germany.

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