American Investor, Summer 2012
New rules for employing highly qualified foreigners
The Act of April 27, 2012, amending the Foreigners Act and the Act on Promotion of Employment and Labor Market Institutions went into effect on June 12, 2012. The amendment made significance changes to the Foreigners Act of June 13, 2003, with respect to residence permits for foreigners working in Poland. The Foreigners Act was amended in connection with Poland’s obligation to implement EU directives 2009/50/EC and 2008/115/EC.
Below we discuss the most important changes introduced by the amendment.
The amendment introduced a totally new chapter concerning the procedure for granting residence permits for a definite period to foreigners to perform “highly qualified employment.”
Pursuant to the amendment, the Foreigners Act now includes a definition of “highly qualified employment,” which means “performance of work, on the basis of employment, by a foreigner with competence proven by higher professional qualifications, who performs work for or under the direction of another person for pay, regardless of the legal relationship between the parties.” “Higher professional qualifications,” in turn, are defined in the act as “higher education qualifications, or at least five years of professional experience of a level comparable to higher education qualifications, necessary for performance of the work specified in the employment contract or job offer.” The act defines “higher education qualifications” to mean “a diploma, certificate or other document issued by a competent authority attesting the successful completion of a post-secondary higher education program, namely a set of courses provided by an educational establishment recognized as a higher education institution by the state in which it is situated, on condition that the studies needed to acquire it lasted at least three years.”
For foreigners seeking a permit to reside in Poland for a definite period in order to perform highly qualified employment, the province governor will now consider in a single administrative proceeding the issuance of both a residence permit and a work permit. Previously, this required two separate proceedings.
Conditions for obtaining a residence permit for a definite period
A residence permit for a definite period in order to perform highly qualified employment may be issued to a foreigner who intends to perform highly qualified employment in Poland for a period of longer than 3 months. The permit is issued for a period 3 months longer than the period during which the work is to be performed, but for no longer than 2 years.
Issuance of a permit requires fulfillment of conditions set forth in detail in the act, with respect to the foreigner as well as the prospective employer.
A foreigner may apply for a permit if he or she:
– is a party to a contract or preliminary contract to perform highly qualified employment for a period of at least 1 year
– meets the qualification requirements and other conditions in the case of an intention to work in a regulated profession, as defined in separate regulations – holds higher professional qualifications
– has health insurance within the meaning of the Act on Healthcare Benefits Financed from Public Funds dated 27 August 2004, or certification of coverage by an insurer for costs of treatment in Poland
– has obtained the consent of the competent authority to hold a specific position, practice a profession, or conduct other activity, if required by separate regulations.
A requirement for the prospective employer of the foreigner is that the staffing need cannot be met on the local employment market. This is determined on the basis of information issued by the starosta (county executive) under the procedure provided in the Act on Promotion of Employment and Labor Market Institutions of April 20, 2004. The entity seeking to hire the foreigner applies to the starosta for issuance of the information. The foreigner then encloses the information with the permit application. The Foreigners Act provides for certain exceptions where there is no necessity to study the situation on the local employment market—particularly in the case of a foreigner who already holds a permit to work for the same employer at the same position or is seeking a successive residence permit for a definite period in connection with work for the same employer at the same position.
Another important feature is the establishment of a minimum salary which the foreigner must receive in order to obtain a residence permit for a definite period to perform highly qualified employment. The threshold has been set at PLN 61,191 per year, pursuant to the Regulation of the Minister of Interior of June 29, 2012, on the Minimum Salary for a Foreigner Required for Issuance of a Residence Permit for a Definite Period to Perform Highly Qualified Employment. The regulation went into effect on July 11, 2012. The salary to be received by the foreigner is specified in the decision issuing the residence permit.
Specific requirements and duties of the foreigner after obtaining a permit
The Foreigners Act provides specific conditions for performance of work in Poland after obtaining a permit.
The act requires the foreigner to notify the province governor for the place where the foreigner currently resides of a change in the conditions of employment specified in the permit. If the change occurs within the first 2 years of the foreigner’s stay in Poland and concerns performance of work for an entity other than the one specified in the permit or at a different position, or results in receiving a salary lower than that specified in the permit, it is necessary to amend the permit.
The permit does not have to be amended during this period, however, due to a change in the name or legal form of the employer, or when the workplace or a division of the workplace is transferred to another entity.
The act also specifies instances in which a permit may not be amended, particularly when the foreigner failed to notify the province governor of loss of the job. Under the act, if the foreigner loses the job he or she performs pursuant to the permit, the foreigner is required to notify the province governor for the place where the foreigner currently resides accordingly, within 7 days after losing the job.
Miejsce publikacji: American Investor, Summer 2012