Hi All,

Would like your feedback on §46.2 of the BeschV. If I read it correctly, it points to §6 Abs 2 of the BeschV. §6 Abs 2 mentions about those who work for a foreign company and have been issued the Green Card. What about people (with Green Card) working for German companies who want to change jobs for example?. Is the 3 year rule the only possibility?.Any info on the same would be greatly appreciated.

Thanks in advance,
AB

Depending.
I wanted to change my job and I had to fight for that.

AA people told me that I can change it.

This was happening in last 2 weeks.

Hi Dracus,

Was this 3 year rule helpful to you?. On what basis did the ABH make the decision?.


Thanks
AB

First when I asked AA to change job they said no you can not.

Then I copied latest law (expecially part with 3 years rule) and gave to them and then they told me to send them that I paid social things in last three years and that then they will make decision.

I think that because I am 4 years in Germany I do not need to prove anything but I did not want to push in this direction so I provided what they asked and AA man told me that he will give "Zustimmung" that I can change my job.

So I guess that this 3 years rule helped but maybe you will have to fight for it.

In a way, I think that they do not know law and that it is easier for them to say "no, you can not" then to check something but at least my AA man was ok when I provided all necessary things (and law also ;)).

Just to add.

This was happening last week and I am waiting for middle of this week to call AB to check what is with my Visa (my pass is in A.

Of course, they have to issue it if AA says OK.

Or if they do not want to do that I will have to fight with them but I guess that everything will be ok.

Btw. My Visa is in connection with company where I am working and in October I will be 5 years in Germany.

Also AB told me to come in September to change my status to unlimited residence permit (pleasent surprise concerning that I had a lot of problems with them).

Of course I do not believe in anything until I do not see that ;).

Hi Dracus,

Thanks for the quick reply!.

Regards
AB

@Dracus

Where is this Ausländerbehörde and Arbeisamt ?

@cedomir

In Karlsruhe. Where you live ?

this with 3-4 years is true but it has nothing to do with BeschV §46.2.
This § says that all GClers need no AMC, even if they are shorter than 3 years here.

@Dracus,

I would like to have some info regarding your experience about changing the job. My friend has applied to Ausländerbehörde for job change. They informed him that they have forwarded the papers to the Arbeitsamt. Also he got to know that it might take 4-5 weeks to get a reply from the Arbeitsamt whether he can or cannot change his job. His new job starts on 01.03. I suppose he is in a fix. Can you throw some light on whether you approached both Ausländerbehörde and Arbeitsamt?. btw my friend is a GCler from 2001.

Thanks in advance.
AB

@abalag

First I was also in AB but they told me about this AA check so I did not want to wait for them and I went directly to AA where I was talking with person in charge.

He asked me for some papers which he can use to show that I was in Germany more then 3 years and that I paid all what I had to pay.

Then he told me that because everything is going over AB they have to make request and he will approve my switch of job what he did.

After max. 5 days I got call from AB where they informed me that I got approval and that I can change my Visa.

Basically, your friend made mistake because he/she did not go immediatelly to AA but maybe he/she can go there to check status of request and talk with them.

Maybe it is too late for 01.03. but if AA and AB people are ok he/she will can have enough time.

At least I finished everything in less than 7 days.

Hi Dracus,

Thanks for the info. I suppose my friend believed in the concept of - one stop government :-). Seems like its better to follow time tested ways to get things done.

Regards
AB

@Dracus

did you got your WP?
is it "Beschäftigung erlaubt"

Do you know that according to BeschVerfV §9.4 they must give you BE without any restrictions?

Is this LAW valid for Gcler?

§ 9 Beschäftigung bei Vorbeschäftigungszeiten oder längerfristigem Voraufenthalt
(1) Die Zustimmung zur Ausübung einer Beschäftigung kann ohne Prüfung nach § 39 Abs. 2 Satz 1 Nr. 1 des Aufenthaltsgesetzes Ausländern erteilt werden, die eine Aufenthaltserlaubnis besitzen und

drei Jahre rechtmäßig eine versicherungspflichtige Beschäftigung im Bundesgebiet ausgeübt haben oder
sich seit vier Jahren im Bundesgebiet ununterbrochen erlaubt oder geduldet aufhalten; Unterbrechungszeiten werden entsprechend § 51 Abs. 1 Nr. 7 des Aufenthaltsgesetzes berücksichtigt.

If it is valid, then I hang it on my neck when I go to AA and request the 'Zustimung' wich then I will put next to the first Law when I go to ABH.
Say...will I pass then?
I am not beautifule so I have only to fights with one....

"this with 3-4 years is true but it has nothing to do with BeschV §46.2.
This § says that all GClers need no AMC, even if they are shorter than 3 years here."

That's how i understand it as well, the main problem to prove it to officials that this point of view is a correct one. And the local officials refuse to understand anything that can lead to a decision that a foreigner with a limited residence permit may not need a work permit - or agreement of employment office as it is now. What they do understand, is that they can lose any control over a situation when foreigners can work legally without permissions, that makes them not to think twice over a subject, i assure you.

I will give you one good example which illustrates the situation perfectly.

On Monday i was in a local court of law that processes legal disputes between employees and employers; it was a repeated claim vs. my last employer related to something like 1,4k euro that - by my opinion - he has to pay me. the first claim was filed some months ago, then right after a new year during the first hearing we came to an agreement that the employer pays me something like 800 euro at once, i from my side refuse from lodging any other claims against him that originate from our work contract, with an exception of a dismissal protection claim that is already in process. the remaining 600 euro i was going to get as a result of dismissal protection claim, still was losing like 40 euro but it would be ok if employer really paid at once as it was agreed.

The employer of course had his own thoughts in mind as well and right after the hearing sent me a letter in which he stated that i owe him more that 800 euro and therefore he will not pay me anything. in reality i did not and do not owe him anything, there is however a possibility that i will owe him those money in the future. anyways, such a position make it simply impossible to collect those money from him now, because any court of law would suspend an execution till the point of time when it becomes clear whether i owe him anything, and the process of suspension of execution would of course be paid from me, if that future possibility comes true.

as i am not fool and know very well that - with German laws - the debtor is a king unless he does not know what to do and applies for a bankrupcy, or (even worse, such kind of thing - my oipinion - only idiot or masochist can do) applies for exemption from remaining obligations, i sent my employer an answer and demanded an immediate payment if he does not want to have our agreement repealed. he did not pay, so i declared a resignation from that agreement; on the same day i filed a repeated claim in which added up a compensation of damages that arose from incompletion of agreement.

So on Monday was the first hearing in a new case and i was really surprised to find out how hostile a judge can be. he tried not to allow me to say anything, was extremely rude, tried to find thousand reasons why my claim should not be admitted at all, so to say, made everything possible to convince me and other people (it was a nice day, the hearings were out of schedule so many people were awaiting their turn ) and their lawyers, that the thing is not important at all and should not even be heard. in the end he had said one phrase that perfectly explains his behaviour - if my claim will have success then every lawyer will use it in their practice. that, of course, will greatly increase his workload because my employer is not the only one who does not want to pay accordingly to agreement, so i understand his frustration.

i guess this example shows perfectly that judges in local courts of laws do not care about justice when they feel that justice can bring them problems. do you think that officials in local emloyment and immigration offices are different? i highly doubt it. see for yourself - they gave Dracus ok only when they saw it that they are still in control of the situation - on the basis of three years rule ("kann"), never on the basis of §46 Abs. 2 ("muss").

"Do you know that according to BeschVerfV §9.4 they must give you BE without any restrictions?
Do you know that according to BeschVerfV §9.4 they must give you BE without any restrictions?"

Do you know old nice AuslG-VwV? there was one nice thing written there, here it is:

10.2.3.5 Durch ausländerrechtliche Auflagen soll der Ausländer im allgemeinen nicht an einen bestimmten Arbeitgeber
gebunden werden. Nur soweit der Ausnahmetatbestand nur für einen bestimmten Arbeitsplatz bei
einem bestimmten Arbeitgeber erfüllt ist (z.B. § 4 Abs. 4, § 8 AAV), kann auch die Bindung an einen bestimmten
Arbeitsplatz als auch Arbeitgeber erfolgen.

The officials of course did not correctly understood those words, and therefore bound every one foreigner to a particular employer ... some GCs have suffered from such a practice as well i guess?


P.S. 46.2 BeschV - it's a perfect example how little there can be in common between some politicians and reality ;)

"they gave Dracus ok only when they saw it that they are still in control of the situation - on the basis of three years rule ("kann", never on the basis of §46 Abs. 2 ("muss"."

there is "kann" in this rule, but that does not mean that ABH can do what they want.
This "kann" is same as "muss if conditions are fullfilled and if there is no good reason not to".
So if some Beamter would turn it down they would need very good reason on the court of law to justify his decision.

beside with ABH and AB is allways better to comunicate schriftlich. You can call them to get info but this info is mostly shity.
But when they hae to answer schriftly they think a lot more. They write stupid things even than but those you can use those things on court of law if it is neccessary.
In most cases court is not neccessary. Beamter will give you what belongs to you or if he does not do it, after you raise Widderspruch, it will come to Beamter that must know the things and you will get what you asked.

or even better, if you start the whole thing with lawyer than they will find the guy who knows the law from the beginning and you will get what you need.

@Dracus

so, did you got your WP?
is it "Beschäftigung erlaubt"

@Dracus:

What kind of proof did you supply to the AA people to support "3 year rule" and where did you get it?

I mean, you are practically living in Germany longer than 4 yrs anyway and it would be enough to show your passport (with your first issued AE). The law says "3+ yrs of working" OR "4+ yrs of living here". They weren't interested in this second option?

"beside with ABH and AB is allways better to comunicate schriftlich."

100% true

"So if some Beamter would turn it down they would need very good reason on the court of law to justify his decision."

Judges do think about interests of the country as well, especially in the courts of law, that settle legal disputes between individuals and a state. That does not necesseraly mean that they will decide against laws, in reality however it can take years to get a judge’s decision in your favour. And obtaining such a decision in most cases is going to be a Pirr’s victory, and i will explain why.

First of all no employer is going to give you a job you until it will become clear that you are right – that’s until you get a corresponding judge decision. As it is going to be a long process, you can forget about any job during all those years that the process is going to take. No employer will wait for you: they will just give a job position to another individual who does not have problems with a state.

Then the interesting thing is that you normally will not even get a chance to have a hearing in such a case, at least not in the normal way. To get such a chance you need to get a decision about your appeal firstly, or wait at least three months from the date that you submitted your appeal. Do you think your would-be employer will wait three months? I highly doubt it. And when your employer forgets about you and finds another employee, you are going to call your appeal back or it will be – and rightfully – rejected, and you will have to pay for a decision about your appeal.

Even if you manage to get a rejection of your appeal before your would-be employer forgets about you, your lawyer needs to claim right things in order to have any chance of success for your claim. They should not require to issue you a residence permit for a work for a particular employer, ’cause such a claim will become not admissible from the day when your employer forgets about you. If your lawyer makes a mistake here – you are going to pay for it, and for the services of your lawyer as well.

There is, of course, a possibility to claim for a restitution as soon as your employer forgets about you, but to succeed in such a claim you have to prove not only that officials should issue you a residence permit, but that you did not get a job only because of officials decision as well. To prove that you usually would need to have a signed work contract or some letters from your employer that tell that you get a job as soon as you get a residence permit – and that’s exactly what employers avoid to give you until the issue between you and officials is cleared.

Not to mention that normally you would have to claim from your home country, just because the employment office is going to stop paying you Alg or Alg II when they learn that immigration office refuses to give you a residence permit and you have a legal dispute running. You will have then to apply for a social aid, and that gives your immigration office a possibility to deport you.

It’s possible to apply for a preliminary protection, but it’s not going to work, those applications succeed only in cases when it concerns a question that was already clarified by courts of law. As in our case there is obviously no such clarification available and can not be available – BeschV is a new regulation – it will take all three instances to get a decision, about application for a preliminary protection as well.

Even if you will manage to get a restitution from a state, it’s not USA and nobody will pay you for a lost qualification, and you surely are going to lose it when you will not work during several years. It could be avoided if you were self-employed and could work as a freelancer – then you could take a risk that your claim will not succeed and work without any permissions – but that’s exactly what is prohibited to you, at least when in your passport is written something like „Selbständige Erwerbstätigkeit oder vergleichbare unselbständige Erwerbstätigkeit nicht gestattet“

I can continue and give you much more information – for example, that from the summer last year you have to pay fees of courts of laws in advance for claims vs. state as well.



Now tell me something about nasty officials Seems that they are not so nasty – they issue you all permits you reqiure – after some time and discussions, although could really make you lots of huge problems

I posted in wrong discussion
=======================================

I posted this message in wrong discussion .

Here it is :

My pass is still in AB.
I got "Zustimmung" for working contract from 01.03. but because they told me that I can not quit until they do not give me "Zustimmung" I did not and in a mean time they said that I got it.

Then I asked new company to wait for me until 01.04. I they accepted that so that is a reason why my pass is still in AB.

I left it there before 6 days and I hope that I will receive it until the end of next week so then I will write what type of Visa I have.

I expect to see Visa connected to company name because they always gave me that type of Visa and I do not believe that they will change it to something else.

In a way, that is not important for me because I want to stay in new company for longer period and my 5 years will expire in October.


You need to give them "Sozialsnachweis" (paper that you receive every year where is stated that you paid everything what you had to pay or if you miss last one then you can give salary reports. At least that is what they ask from me.

Basically this document(s) is(are) extremely important later to get NE. Even on them is written "Very important document" in different languages .