For entry into the territory of the Federal Republic of Germany citizens from non-EU/EEA countries require a valid passport or equivalent and visa documentation if relevant. Because of the association agreement between the EEC (European Economic Community) and Turkey, Turkish citizens have a right of abode and are exempted. This visa documentation can be issued as a visa, a residence permit which is valid for a restricted period of time or a residence permit which is permanent. This documentation is only issued upon application.
The missions of the German Foreign Office are responsible for visa affairs abroad. Should you come from a country in which the Federal Republic of Germany does not have a mission, you need to apply for residence authorization to the Immigration Service of the Foreign Office in Berlin: https://www.auswaertiges-amt.de/en/einreiseundaufenthalt/visabestimmungen-node.
The German immigration authorities are responsible for all questions concerning residence rights. The competent local immigration authority is determined by the actual or intended place of residence of the foreign national. All extensions and changes to residence authorizations must be applied for at the local immigration authority.
In principle, foreign nationals are only allowed to work if their visa permits this. It can be seen clearly from all visa documentation if the holder is allowed to work.
Visa documentation can be issued as a visa (§6 of the Residence Law/AufenthG), as a residence permit which is valid for a restricted period of time (§7 of the Residence Law/AufenthG) or as a residence permit which is permanent (§9 of the Residence Law/AufenthG).
Visas, short or long term and residence titles
Visas are an independent document which confers rights upon the holder. It is issued by embassies and consulates as a Schengen-visa for the purpose of transit, as a Schengen visa for stays of up to three months or as a national visa for long-term stays abroad. These visas cannot be extended here in Germany except in special circumstances. A list of countries for which a visa is or is not required for the purpose of entering Germany can be found at: http://www.auswaertiges-amt.de/EN/EinreiseUndAufenthalt/04_Recht/Zuwanderungsrecht_node.html.
Germany uses a number of different visas, each serving a different purpose.
Visa or residence titles have different conditions, which differ depending on the desired activities in Germany. This may apply if you are searching for employment, education, training or as a researcher.
Find out more about the different types of visa here.
Visa (§6 Residence Law)
Short stays (for example for business purposes)/visitors’ visas
Should you be staying short-term in Germany with a visa for stays of up to three months (within a period of six months counting from the first date of entry into Germany), it is not permitted for you to take up work on a self-employed basis. Your visa can however be used to hold talks or negotiations on federal German territory or to conclude business deals such as the signing of a contract.
You need to provide proof of the fact that the cost of your stay in Germany is covered. You are not allowed to claim any German public money for the purpose of your visit. If you are unable to finance your journey and your stay yourself, then a host who is resident in Germany can cover all the costs that arise from the stay. This includes costs of possible medical treatment. The German immigration authorities in the area of residence of the host are responsible for registering such an undertaking; in accordance with §§66 ff of the Residence Law (AufenthG)
Visa for self-employed work
The issuing of a visa for a longer-term stay (national visa) is guided by the regulations which apply to permanent and fixed-term residence permits. In the case of an intended stay that is longer than three months the local immigration authority in Germany becomes involved. Insofar as there is an intention to engage in remunerative work, the local employment office will also be involved. To ensure that the correct procedure is carried out it is important that the intended purpose of the stay is given when the visa is first applied for. After entry into Germany a residence permit for a different purpose can only be issued in exceptional circumstances. The application form for a long-term stay can be found at: https://www.make-it-in-germany.com/de/visum/beantragung/antragsformulare.
Citizens of the following countries can also apply for a residence permit after entering Germany: Australia, Israel, Japan, Canada, the Republic of Korea, New Zealand and the USA.
The Chamber of Commerce and Industry with responsibility for the locality in question, the relevant private and public sector trade and professional associations and the authorities responsible for the registration of occupations are involved in making this assessment. When making your application you should submit information about your planned business activity that is as comprehensive as possible. This will lead to a shorter processing time.
Work on a self-employed basis
Every permissible self-employed activity, with the purpose of generating profits, is classified as such if it is engaged in for a certain period of time and does not constitute an employment relationship.
Typical self-employed activities are, for example:
- wholesale and retail
- restaurant owner
- commercial agent etc.
In addition, freelance activities such as artists (painters, musicians, writers), journalists, engineers, architects, and businesses in the primary sector of the economy e.g. agriculture and forestry should be seen as “self-employed”. More information can be found here.
Self-employed persons are also those in:
- a limited partnership – every ordinary partner within the limited partnership
- an unlimited partnership – each individual partner
- a company constituted under civil law – each individual partner because partnerships cannot themselves be regarded as traders
Paid employment that is comparable to self-employment is treated as such by the nature of the duties that are performed. Examples are managing directors of private limited companies or directors of public limited companies, who are entitled to represent juristic persons. Likewise, the authorized representatives of companies and also senior managers who have full power of attorney are treated as if they were self-employed by the nature of the duties they perform. As part of the procedure for registering a private or public limited company with the commercial register the local magistrate’s court will also run background checks. They will check whether a foreign national, who is ordinarily resident in Germany and who has been appointed as a company’s lawful representative, is in possession of authorisation from the immigration authorities as would be necessary for engaging in work on a self-employed basis.
People employed in travelling occupations
In principle, permission to carry out employed work in travelling occupations must be obtained (travelling occupation card). Such work is treated by immigration law as self-employed work. Irrespective of the person’s nationality or the length of their stay it is always to be seen as remunerative work.
Financial stake in a company
In principle, a financial stake in a company is not to be regarded as remunerative work. This is just as true for the dormant partner as it is for the limited partner in a limited partnership. As a rule, this also applies to someone who holds a minority interest in a private limited company. If you exert influence on the company’s decision-making, on the basis of your shareholding in the company, then immigration law assumes that this activity is “comparable to self-employed remunerative work”. In this case, as a majority shareholder, even without being the managing director yourself, you are treated under immigration law as a self-employed person.
For further information please contact us.