Employment of foreigners in Austria

							                            Beratungszentrum
                            für Migranten
                            und Migrantinnen                                     Arbeitsmarktpolitische
                                                                                 Betreuungseinrichtung

                                                                                  AuslBG englisch 1 / 09




              Employment of foreigners in Austria
The employment of foreigners in Austria is regulated under the Employment of Foreign Nationals
Act.
In principle an employer may only employ a foreigner if he/she has been granted an employment
permit by the Employment Service or if the foreigner holds an appropriate right under the
Employment of Foreign Nationals Act (e.g. work permit, exemption certificate, confirmation of free
movement etc.) or the Settlement and Residence Act (e.g. proof of settlement, “long–term
resident´s EC residence permit” etc.).

    Who is excluded from the Employment of Foreign Nationals Act and does not
                          require a special work permit?

   •   Spouses and children³ (including adopted children and stepchildren) of Austrians, if they
       are entitled to settle in Austria.
   •   EEA citizens1 / Swiss citizens and their family members2 enjoying freedom of movement, if
       they are entitled to settle in Austria under the Settlement and Residence Act.
   •   Persons who were granted the status of being eligible to asylum (convention refugee) or
       who hold the status of being eligible to subsidiary protection.
   •   Persons due to their occupation as scientists and researchers or as special executives as
       well as their spouses and children³.
   •   Other special occupational groups (e.g. diplomats, spiritual advisers of acknowledged
       religious communities, correspondents of foreign media, etc.)
   •   Certain occupations requiring full compulsory social insurance (e.g. nurses in private
       homes, distributors of advertising material and deliverers of daily newspapers or
       periodical publications), if they are performed by citizens of the new EU states.
1. Currently, citizens of the new EU countries (with the exception of Malta and Cyprus) do not yet enjoy
   free access to the Austrian labour market, unless they are relatives of EEA citizens / Swiss citizens or
   Austrian nationals (see above).
2. Family members of EEA citizens (who are entitled to freedom of movement) are spouses, legitimate or
   illegitimate children (including stepchildren and adopted children) unless they have not yet reached the
   age of 21 or if they are still provided maintenance as well as parents and parents-in-law as long as they
   are provided maintenance.
3. In general, the age limit for these children is the completion of the 18th year. In the event of freedom of
   movement the age limit is 21 years or more, if they are provided maintenance.


 Who does according to the settlement and residence act (NAG) have unrestricted
    access to the labour market and does not require an additional permit or
                                 authorization?
Foreigners who possess
   • Proof of settlement
   • a “settlement permit – unrestricted” or
   • a residence title “long term resident´s EC“
are entitled to an employment within the entire federal territory and do not need an additional
permit according to the Employment of Foreign Nationals Act.
                       Proof of settlement (Niederlassungsnachweis)

The proof of settlement is a right to reside for an unlimited period of time which has been issued
from the immigration office (MA 35) by December 31st 2005 and continues to be valid.



            Residence title “long term resident´s EC” (Daueraufenthalt-EG)

The residence title “long term resident´s EC” is an unlimited right to reside which is granted
beginning with January 1st 2006. The “long term resident´s EC” may be granted if one has settled
in Austria without interruption during the past five years and if the Integration Agreement has been
complied with.



  “Settlement permit – unrestricted” (Niederlassungsbewilligung – unbeschränkt)

The “settlement permit – unrestricted” is a limited right to reside and is granted for a year each.
Among other persons spouses and children are entitled to this right of a settlement permit if they
have legally settled in Austria for already 12 months and if their reunifying person either possesses
the entitlement “long term resident´s EC”, a proof of settlement or a “settlement permit – unrestrict”
or is entitled to asylum (recognised refugee). Key workers receive this settlement permit only after
a period of 18 months. Under certain preconditions even other persons have the possibility to
obtain this settlement permit.



             Who may obtain an exemption certificate (Befreiungsschein) ?

                 (validity period 5 years, employment is possible throughout Austria)

Preconditions:

   Legal settlement in Austria AND

   1. 5 years of legal employment during the past 8 years OR

   2. Completion of the last full school year prior to the end of compulsory education in Austria, if
      at least one settled parent has been employed for at least 3 years during the past 5 years
       (In the event of death the 3-year occupation is not necessary) OR

   3. Nationals of third countries who were among others up to now excluded from the
      Employment of Foreign Nationals Act as family members of an Austrian or EEA citizen and
      who have lost their capacity as family members for various reasons (e.g. divorce, majority,
      falling away of subsistence etc.) OR

   4. Spouses or unmarried, minor children of a person who is entitled to an exemption certificate
      if they have been settled for at least twelve months.

Exemption certificates are renewed if the foreigner is settled and may prove 2½ years of
employment during the past 5 years or if he/she continues to fulfil the above mentioned
preconditions.
                     Who may obtain a work permit (Arbeitserlaubnis)?

             (validity period 2 years, employment only possible in a certain federal state)

Preconditions:

   Legal settlement in Austria AND

       1. 12 months of legal employment during the past 14 months OR

       2. Spouse or unmarried, minor children of a person entitled to a work permit who have been
          settled for at least twelve months.

Work permits are renewed if the foreigner is settled and may prove 18 months of employment
during the past 24 months or if he/she continues to fulfil the above mentioned preconditions.


               For whom may an employer obtain an employment permit
           (Beschäftigungsbewilligung) from the Employment Service (AMS)?

  (validity period maximum 1 year, employment only possible for a certain company/workplace)

If an application for employment permit is filed for a foreigner at the Employment Office (AMS), it
has to be examined whether the job vacancy which is to be occupied might be occupied by another
suitable unemployed (especially the recipients of unemployment benefit). This labour market
examination does not apply for spouses or unmarried minor children of a foreigner who is
employed with an employment permit, if they have been legally established for at least twelve
months. (In case of family members of key personnel there is no waiting period either)

Due to the present situation on the labour market, the following persons have better chances of
being granted an employment permit:

   •    spouses and minor, unmarried children of foreigners who are legally established and
        employed on a long-term basis;
   •    foreigners who are integrated in an advanced way;
   •    female foreigners who are affected by violence in the family, if certain preconditions are at
        hand;
   •    legally settled foreign teenagers (who do not yet possess another permit);
   •    skilled workers from the new EU states for employment in the health care and nursing
        sector or for occupations listed in the exceeding regulations for skilled workers
        (Fachkräfteüberziehungsverordnung);
   •    within the context of a contingency for foreigners who are employed for a short time;
   •    key workers (see below in detail)

The employment permit is extended if the employer has filed an application for extension in due
time and if the foreigner continues to possess a corresponding residence title or enjoys freedom of
settlement. This permit is bound to a workplace and ceases to be valid if the employment does no
longer exist.


         Who may obtain a settlement permit as a key worker (Schlüsselkraft)?

In a joint proceedings between the competent immigration office (in Vienna: Municipal Department
for Immigration and Citizenship, Registry Office, MA 35) and the Employment Service (AMS) it is
examined whether a settlement permit as a key worker may be granted. However, one
precondition is that a specific workplace is available. The settlement permit as a key worker is at
the same time regarded as an employment permit.

Key workers should possess a special training or special skills which are in particular demand on
the labour market. The monthly gross salary has to amount to at least € 2.412,-- (2009). Moreover
further conditions (e.g. quota place) have to be fulfilled.

The “Settlement permit - key worker” is at first granted for 18 months. If they have been employed
as a key worker during this period for in total 12 months, they will receive a “settlement permit –
unrestricted” and have therefore unrestricted access to the labour market in Austria.

Students who have finished their studies or training in Austria, may without regard to quota turn
their residence permit into a “settlement permit – key worker” if the preconditions for a key worker
are fulfilled.


                 Contingencies for foreigners that are employed for a short time

In order to meet a temporary, additional demand in manpower, the Federal Ministry of Economics
and Labour may permit the short-term employment of foreign workers in certain economic sectors
by means of an ordinance.

At present the permits (quota permits) within the scope of these contingencies (tourism, agriculture
and forestry) can be granted for a maximum of 6 months. In this context foreigners who already
hold a residence permit or enjoy freedom of settlement are preferred. If the person applied for
comes from the new EU states and has been employed in this quota for the 3 previous years, a
quota permit in agriculture and forestry of a maximum of 9 months can be granted in any case. To
students and pupils this permit can only be granted for a maximum of 3 months per calendar year.
Quota permits for harvesters are only granted for a maximum of 6 weeks.

Persons who are not entitled to stay in Austria need a visa of residence and entry (visa D+C), if a
visa is obligatory for them. They may apply for this entry permit using a confirmation of guaranteed
work (Sicherungsbescheinigung), which is issued by the Employment Service to an employer, at
Austrian representative authorities abroad. Persons who are allowed to enter Austria without a visa
only require a no-objection certificate (Unbedenklichkeitsbescheinigung) from the aliens’ police
authorities.
                                                           ATTENTION !!!

Since the provisions at hand have been presented in a very abridged version, we kindly ask you to contact the Employment service
(AMS) or us – counselling centre for migrants – in order to obtain more detailed information. We refer to the fact that in spite of careful
examination mistakes can happen therefore no guarantee for details contained in this information can be assumed.

You will also find further information on this topic in the following information sheets which contain possibly more favourable provisions:
                                 *    Association agreement between the EU and Turkey
                                 *    EU-expansion – access to the Austrian labour market

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                         Tel: 712 56 04                                                         Tel: 982 33 08
      http://www.migrant.at     E-Mail: migrant@migrant.at                  http://www.migrant.at    E-Mail: migrantin@migrant.at

  Diese Publikation wird aus Mitteln des Arbeitsmarktservice (und des Europäischen Sozialfonds) sowie der Magistratsabteilung 17
                                                             gefördert.