Employment of foreigners from outside the EU – where to start?

How to employ a foreign national from outside the European Union who for the first time comes to Poland to work – practical and the most popular solution.

Work permit

The principles associated with the performance of work by foreigners in the Republic of Poland are laid down in the Employment Promotion and Labour Market Institutions Act of 20 April 2004 (Dz.U.2018.1265, as amended, further the “Act”). In accordance with Article 87 of the Act, a foreigner is entitled to perform work in the Republic of Poland if (s)he holds a work permit and resides in Poland on the basis of a visa.

To obtain a work permit for a foreigner, the employer files an application with the province governor appropriate for the employer’s registered seat. It is worth noting that presence of a foreigner is not necessary during the work permit procedure and allow the employer to secure a work permit for foreigners being outside of Poland.

Market demand test

The first step in the process of obtaining a work permit for a foreign national is the so called market demand test i.e. investigation whether on the local employment market there are any registered unemployed persons who could be employed on the position concerned (unemployed Polish nationals have priority over foreigners). To this end, the employer makes an inquiry with the district labour office whether among the unemployed there are any persons meeting the qualifications needed for employment. If no such person is found, the district governor issues a notice of failure to meet the employer’s staffing needs based on the register of unemployed and persons seeking job or the negative outcome of a recruitment process carried out for the employer.

However, the market demand test is not always required. If the work to be performed by a foreign is on the list of professions in deficiency published in regulations of the province governors or in the enclosure to the Regulation of the Minister of Labour and Social Policy determining the cases in which the work permit for foreigners is issued regardless of detailed conditions concerning issuance of the work permit for foreigners, the employer does not have to make an inquiry with the district governor. 

Application for work permit

To the application for work permit, the notice of the district governor should be enclosed or the applicant should provide legal basis exempting it from the obligation to carry out the market demand test and file appropriate documents. The application for work permit includes:

• information concerning an entity entrusting a foreigner with the performance of work such as:
  • business name of the employer,
  • registered seat address,
  • name of the register appropriate for business activity or statutory activity and registration number
  • >tax and statistical identification numbers (NIP and REGON),
  • PKD codes (areas of activity),
  • number of employed persons as at the date of filing the application,
  • personal data of a foreigner such as: name and surname, sex, date of birth, citizenship, passport number and expiry date
• information concerning the work offered to a foreigner, such as:
  • position and scope of responsibilities,
  • grounds for employment (employment or other contract),
  • working time arrangement and term for which the work is entrusted
  • place of work and gross basic salary.
• also documents confirming the education and qualifications of a foreigner required to undertake the work in the given position should be enclosed to the application for work permit.

The work permit is also required for a foreigner holding a position in the management board of a legal person, a foreigner who manages affairs of a limited partnership or limited joint-stock partnership as general partner or in connection with appointment of a foreigner as commercial proxy if resides in Poland for a period longer than 6 months in the subsequent 12 months.

Content of the work permit

A work permit is issued for a fixed period of time, in most cases for no more than 3 years and may be extended.

A work permit is issued to a given employer and a given foreigner who can undertake work exclusively on the terms and conditions specified in the permit (the position, the nature of the agreement constituting grounds for work, working time arrangement and remuneration). A work permit also specifies a minimum remuneration that a foreigner should receive on a given position.

Visa

An employer receives a work permit in two copies and sends one to a foreigner who on that basis will obtain a visa for the performance of work from the Polish Consulate in the country of permanent residence of a foreigner.

A foreigner may undertake work in Poland only with a valid work permit and visa for the performance of work. Family members of a foreigner who obtained a work permit will obtain a visa which will entitle them to stay in Poland with a foreigner. Usually, visas for the performance of work are issued for a period of 365 days).

Employer’s obligations

In the employment contract, an employer should restate the terms and conditions of employment specified in the work permit. The employer concludes a contract with the foreigner in written form and presents to the foreigner, prior to the signing of such contract, a translation into a language understood by the foreigner. The employer registers the foreigner for social insurance, pays social insurance contributions and withholds income tax.

Author:

Katarzyna Zarzycka
Expatriate Consultant
TGC Corporate Lawyers

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