14 December 2022

New law on the employment of foreigners - what significant changes does the draft introduce?

On 13 September 2022, a draft law on the employment of foreigners (list no: 400) appeared on the website of the Government Legislation Centre. It is primarily intended to be comprehensive legislation regulating key issues concerning the employment of foreigners, currently scattered across various laws and regulations. As indicated in the explanatory memorandum to the draft, it is also intended to streamline procedures and shorten waiting time for decisions. Apart from minor changes related, inter alia, to notification obligations on the part of the employer, introduction of one type of work permit for all employees delegated to Poland (currently divided into 3 types - C-E) or granting an obligatory nature to premise of refusal to issue a work permit in the case of employers in arrears with social insurance contributions or taxes, the draft introduces several significant changes that may have a real impact on the functioning of legalisation procedures in practice.

Electronification of procedures

Full electronification of procedures related to obtaining documents legalising work of foreigners in Poland stipulated in the draft will cover both the submission of applications for work permits and registration of declarations on entrusting work to a foreigner (referred to as declarations on employment of a foreigner under the draft). The praca.gov.pl portal will serve this purpose. In principle, this change should be perceived as a sanctioning of practice already existing on a fairly large scale.

The cited portal praca.gov.pl and electronic form are also to apply when:

  • filing an appeal in a work permit case and
  • fulfilment by employers of notification obligations related to the employment of foreigners (concerning, inter alia, a foreigner's failure to start work within an indicated period).

As a rule, these have thus far been dealt with by traditional means.

Digitalisation will also extend to authorities themselves, including the flow of information between institutions (e.g., the Border Guard or the Social Insurance Institution). The functionality of the ICT system constituting the platform for this flow is to provide authorities quick access to necessary information.

Abolition of the requirement to obtain information from the starost

The draft law also withdraws the need for an employer seeking to employ a foreigner to obtain information from a starost on incapacity to meet staffing needs, which is tantamount to abolition of the institution of labour market test.

Currently, it is necessary (with some exceptions) to obtain such information when applying for type A and S work permits, as well as temporary residence and work permits (single permits) and temporary residence permits for the purpose of work in a highly qualified profession. The information is provided by the starost (local district labour office) after the employer submits a job offer for the position to be entrusted to a foreigner. This information is issued within 14 days from the date of correct submission of a job offer without recruitment or no longer than 21 days when organizing recruitment for the submitted position.

Abandonment of the requirement for employers to submit information from a starost means the elimination of one stage in the procedure and should accelerate proceedings for issuance of permits by approximately 2-3 weeks. This should be assessed positively. Moreover, it will eliminate the need to demonstrate that a foreigner meets requirements of an entity entrusting work to a foreigner, as specified in the starost's information (concerning qualifications, education and professional experience), thus significantly reducing the scope and number of documents submitted during the permit procedure.

Abolition of the procedure for extending a work permit

An expression of the desire to simplify and reduce the number of procedures operating in parallel is the abandonment of a separate procedure for extending work permits (except for a seasonal work permit - type S). This relates to the general withdrawal, as discussed above, of the need to conduct a labour market test and obtain information from the starost (one of the requirements distinguishing the procedure for obtaining new permits from that for extending permits already obtained).

A currently issued work permit can be extended upon application submitted no earlier than 90 days and no later than 30 days before permit expiry. Thus, if the deadline for applying for extension of a work permit for the same employer and for the same position has been met and an application has no formal deficiencies and they have been rectified by the deadline, work of a foreigner in Poland is considered legal from the date of submitting the application to the date when a decision on work permit extension becomes final. Under the prolongation procedure, an employer is not required to attach information from the starost to the application (if the employee position is unchanged). At the same time, however, as part of the extension procedure and depending on the type of permit, the employer must submit documents confirming payment of social security contributions for the employee as well as the contract concluded with the foreigner. Unless explicitly requested by the authority, these documents do not have to be submitted when applying for a new permit.

According to the proposed amendments, an employer wishing to continue employing the same foreigner in the same position or with the same type of work will have to apply for another work permit. Although it will not be necessary to obtain information from the starost and attach it to a subsequent application, the employer will have to attach relevant certificates to the application from the Social Insurance Institution (ZUS) and Tax Office (US), as mentioned in the introduction, due to the obligatory nature of the premise for refusal to issue a permit if the employer is in arrears with social insurance contributions or taxes.

The above presumption of legality of a foreigner's work from the date when a granted permit expired to the date on which a decision granting a subsequent work permit became final will be retained. The condition is that the employer files an application during the validity period of the existing work permit. The presumption of legality of work shall also apply, as in the current state of law, to foreigner residence applications submitted to continue work in accordance with a work permit or temporary residence permit, i.e., applications for a permit for:

  • temporary stay and work (including when serving on the board of directors of a legal entity)
  • temporary stay to work in a highly qualified profession
  • temporary stay for conducting business when the purpose of stay is to work by acting on the management board of a limited liability or joint stock company which the foreigner established or whose shares have been subscribed or acquired, to manage the affairs of a limited partnership or limited joint-stock partnership by a general partner, or to act as a proxy and
  • long-term EU resident.

Significantly, the draft assumes that applications submitted in connection with a foreigner's work for the same employing entity at the same working hours and for remuneration not lower than specified in a previously issued permit, valid on the date of submission of a subsequent application for a work permit, will be processed with consideration of their priority.

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The draft is currently at the consultation stage. Most provisions of the Act will enter into force 7 days after its announcement.

Aleksandra Wójcik