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Corporate Immigration- Germany

 

Introduction

 

Generally, the laws governing the issuance of visas and residence permits require any non-European Economic Area alien to hold a visa or permit for any visit to Germany. Thus, most foreign nationals require an entry clearance in the form of a visa. Only certain privileged nationalities are exempt from this requirement due to treaties between Germany and the respective home country (visa waiver programmes). Those benefiting from such visa waiver programmes may travel to Germany for up to three months without officially applying for a business or tourist visa.

 

The entry clearance visa belongs to one of two categories. Firstly, the visa may be a national entry clearance issued in preparation for a long-term stay and on the basis of a residence and work permit application. Such a visa must be converted into a residence permit shortly after arrival in Germany and may entitle the bearer to work under the conditions set out in the visa. As a national visa it entitles the bearer to enter only Germany, but it may be also used as a visa for transit travel for up to five days through other Schengen countries en route to Germany.

 

Alternatively, the visa may be a Schengen visa issued for the purpose of short-term business or tourist travel to the whole Schengen area. This visa is generally not convertible into a residence permit and entitles the bearer to stay in the Schengen area for up to three consecutive months. Within Germany it allows only limited business activities during the trip. A Schengen visa is usually obtained within two weeks of filing the application.

 

Duration of Visiting Period

Under the 1985 Schengen Agreement, a business visitor may be granted a short-term visa for a maximum duration of three months (90 days) out of every six. However, a business traveller must not spend more than three months out of every 12 on business in Germany, as a business trip of more than 90 days in 12 months is, by law, considered to be work which requires a residence permit.

 

Although tourist and business travel may be covered by one visa entitling the bearer to stay in Germany for a maximum of three months out of every six, any business activity exceeding three months out of every 12 in duration is automatically regarded as work for which a residence and work permit is necessary. Thus, the second three months are, by law, strictly limited to tourism or must be spent on business travel in another Schengen country.

 

Activities Suitable for the Business Visa Category

A 'regular business visitor' is defined as an individual who, despite living and working outside Germany, comes to Germany to:

  • attend meetings and briefings;
  • undertake negotiations;
  • conclude contracts with German businesses; or
  • buy goods.

All other possible business activities are not covered by a business visa and thus require a respective residence permit before they may be performed legally in Germany. These include the following:

  • training;
  • knowledge transfer;
  • production of goods;
  • provision of services; and
  • employment.

Penalties for Misuse of Business Visa

Activities that are performed under a business visa but are not included in the list of permissible business visa activities may be classed as illegal work, acquisition of a visa under false pretences or even (in the case of a traveller who benefits from a visa waiver privilege) illegal presence in Germany. All are technically criminal offences.

 

A foreign national charged with such a criminal offence may not only be barred from future travel to Germany, but also be sentenced to either a fine or imprisonment for up to three years.

 

Those supporting the foreign national may be charged with either human trafficking or assisting the acquisition of a visa under false pretences. Penalties range from a fine to imprisonment of between six months and five years in the case of repeat offences. If such activities are performed for financial gain or are organized by a group of more than two people, they may even lead to imprisonment for up to 10 years.

 

Knowledge of both the activities covered by the business visa and its limitations is therefore extremely important for human resources personnel who regularly assist their travelling personnel in obtaining visas. Otherwise they may find themselves at risk of being charged as an organized group with the criminal offence of arranging illegal travel for financial gain. Furthermore, according to the German Federal Court of Justice (BGH 1 StR 238/00), the employer of a foreign national who does not have a valid permit may also be found guilty of an immigration crime for supporting that person's illegal presence in Germany.

 

International Law Office