When deciding to hire a foreigner, it is worth bearing in mind the obligations of the employer that should be fulfilled so that such cooperation proceeds in accordance with the law and does not give rise to negative consequences. Initially, the number of formalities that should be fulfilled in connection with the employment of a citizen of a non-EU country may seem overwhelming.
Therefore, in order to make the process easier for you, below we will explain the issues that every employer who decides to cooperate with an employee who is a citizen of a non-EU country should remember about.
Before you sign an employment contract with an employee, you should first pay attention to two very important formal issues: the basis for legalizing residence and the basis for legalizing the foreigner's work. So, at the outset, it is worth asking yourself the following questions:
and
Before establishing cooperation, it is imperative that you verify whether the employee has both of these documents - it is essential for legal employment of a foreigner.
To make sure that the documents possessed by the prospective employee are a sufficient basis for employment, below you will find a detailed discussion of legalization of residence and work.
Moving on to discuss the first of the two aforementioned issues, i.e. the legality of the hired employee's stay in Poland, pay attention to the fact that before signing a contract you should verify whether your prospective employee has the appropriate documents allowing for a lawful stay in the country.
This is because according to the Law on Employment Promotion and Labor Market Institutions - a foreigner who is a citizen of a country that is not a member of the European Union or the European Economic Area is entitled to work in the territory of the Republic of Poland if he/she has a work permit and a valid residence permit in Poland.
Among the documents that are valid permits, legalizing the stay in Poland, one should indicate, among others, documents such as:
In addition, a foreigner who does not have any of the above-mentioned documents, but moves on the basis of visa-free movement using a biometric passport, stays in Poland legally. You can find a list of countries whose citizens can travel visa-free here.
Remember, however, that not every residence permit entitles a foreigner to work in Poland. If your prospective employee shows you documents, i.e. a tourist visa or a temporary residence permit due to circumstances requiring a short-term stay, you will not be able to hire them on this basis.
It should be added that citizens of Ukraine and Belarus are in a special situation, but more about this later in the article.
If the employee you intend to hire has an adequate basis for legal residence, you can proceed to obtain a work permit. It should be noted that a work permit is always obtained for a specific employer and for a specific position. There is no blanket work permit that entitles you to work for any employer.
Moving on to this aspect, as an employer you must take care to obtain the appropriate work permit for the prospective employee. Among the documents that allow a foreigner to legally work in Poland are:
It is worth bearing in mind that obtaining each of the above-mentioned documents involves a separate procedure, which may require the submission of additional documents.
A work permit is issued at the request of the entity entrusting work to a foreigner, i.e. the employer. Competent in this matter, as a rule, is the voivode appropriate for the seat or place of residence of the entity entrusting work to a foreigner.
This issue is regulated by the Regulation of the Minister of Family, Labor and Social Policy of July 22, 2022 on work permits and declarations of entrustment of work to a foreigner.
According to this regulation, an entrepreneur wishing to employ a foreigner must first of all obtain a type A or B work permit.
The former applies to a foreigner who performs work on the territory of the Republic of Poland on the basis of a contract with an entity whose registered office or place of residence or branch, plant or other form of organized activity is located on the territory of our country.
A B-type permit, on the other hand, applies to a foreigner who performs work consisting in performing functions in the management board of a legal person entered in the register of entrepreneurs or being a capital company in organization, or managing the affairs of a limited partnership or a limited joint-stock partnership as a general partner, or in connection with granting him/her a power of attorney, and stays in the territory of the Republic of Poland for a period exceeding a total of 6 months in any consecutive 12-month period.
A work permit is always issued for a fixed period, with type A being issued for a period of no more than 3 years, while type B may be issued for a period of 3 years, unless the legal entity employs more than 25 people, in which case the permit may be issued for a period of no more than 5 years.
Both types of permits may be subject to renewal, but an application in this regard must be submitted no earlier than 90 and no later than 30 days before the expiration of the permit.
The permit is issued in the form of an administrative decision, which is subject to appeal to the Minister of Family, Labor and Social Policy. It is filed through the voivode who issued the decision, within 14 days of its delivery to the party.
Note that if you want to hire a foreigner on the basis of a work permit, this will often involve conducting a so-called labor market test. A labor market test is another way of saying that the district starosta is informed that the company's staffing needs cannot be met in the local labor market.
The application for the test is submitted by the entrepreneur. This should be done at the district labor office that has jurisdiction over the future place of employment. The application for the test is submitted even before applying for a work permit for a foreigner. Then the employer obtains the necessary information that the job cannot be performed by an unemployed person who is registered in the district labor office. The reason for this may be, for example, the lack of specific specialists or professionals in the local labor market.
The application for the starosta's information is submitted with a job offer, the scope of which will later be presented with the application for a work permit for a foreigner - therefore, the scope of duties as well as the amount of remuneration should already be determined at this stage. Then the starosta verifies the records of the unemployed in the district labor office and issues a statement to that effect.
It can take up to 14 days or even a month to obtain the starosta's opinion. The starosta's information in the form of a document is valid for 180 days.
A test by the district starosta will not be required for foreigners employed on the basis of a statement on the entrustment of work, i.e. citizens of Armenia, Belarus, Georgia, Moldova, Russia and Ukraine, who have been included in the simplified procedure.
The opinion of the starosta is also not required for foreigners who represent deficit occupations. These include, among others, certain groups of engineers and construction workers, specialist doctors, nurses, caregivers of the elderly or programmers and IT systems development specialists.
The test is also not applied to graduates and doctoral students of universities in Poland, the European Union and the European Economic Area who plan to work in Poland. The exemption also covers workers from third countries who have legally resided in Poland for 3 years before applying for a work permit.
In addition to verifying the above-mentioned two formal aspects, it is also worth paying attention to ensuring that all documents related to employment at your workplace are made available to the prospective employee in a language he or she understands. So make sure that not only the employment contract, but also the applicable labor and salary regulations or collective bargaining agreement are made available to the employee in a language familiar to the employee. Note - this does not mean that the text of these documents must be in the native language of the employee in question. If he speaks English, for example, then the documents can be presented to the employee in that language.
If your future employee has an adequate basis for legal residence and employment in Poland, there is nothing stopping you from signing the contract and enjoying the established cooperation after translating the employment contract and other documents regulating working conditions.
If you are wondering whether your prospective employee has the right documents or you are not sure if you have completed all the necessary formalities, feel free to contact us.
In connection with the events that took place behind the eastern border of our country, the legislator has introduced special rules for the stay and employment of citizens of Ukraine and Belarus.
Citizens of Ukraine
You need to know that in connection with Russia's attack on Ukraine, special provisions were introduced with regard to citizens who were forced to leave that country and cross the Polish border.
Accordingly, the legal status of citizens of Ukraine is regulated by the law of March 12, 2022 on assistance to citizens of Ukraine in connection with the armed conflict on the territory of that country, known as the "specustawa" (a normative act that, for a certain period of time, excludes the application of existing regulations).
On its basis, the provisions on the conditions for recognition of stay in Poland as legal do not apply to citizens who have:
However, the above-mentioned exclusion will apply if a citizen of Ukraine:
It should be emphasized that, according to the legislation in question - if a citizen of Ukraine came legally from that country to the territory of the Republic of Poland in the period from February 24, 2022 in connection with the hostilities conducted on the territory of Ukraine, his/her stay is considered legal for a period of 18 months, if he/she declares intention to stay in Poland.
The stay of a child born on the territory of the Republic of Poland by its mother, after the date specified above, is also considered legal.
It should be remembered that whenever the law refers to a citizen of Ukraine, it is also understood to mean a spouse of a citizen of Ukraine who does not have Ukrainian citizenship, if he or she arrived on the territory of the Republic of Poland from the territory of Ukraine in connection with the hostilities conducted on the territory of that country and is not a Polish citizen.
Also, if a citizen of Ukraine holding a Pole's Card, left Ukraine in the period from February 24, 2022, and then arrived legally on the territory of the Republic of Poland and declares his/her intention to stay on the territory of the Republic of Poland, his/her stay on the territory of the Republic of Poland is considered legal for a period of 18 months counting from February 24, 2022. This rule applies mutatis mutandis to members of such a person's immediate family.
The above-described rules for legalizing the stay of Ukrainian citizens in the territory of Poland are closely linked to solutions facilitating their adaptation in the labor market of our country.
Based on the provisions of the special law, the Polish labor market has been opened to war refugees from Ukraine. This is because they can take up employment on very liberal terms.
According to the special law - a citizen of Ukraine, who entered Poland due to warfare and declares his/her intention to stay on its territory, is entitled to work on the territory of the Republic of Poland, if:
The time limit for the performance of this obligation is 14 days from the date of taking up work by a citizen of Ukraine.
The obligation to notify, does not apply to the case in which a citizen of Ukraine performs work on the territory of the Republic of Poland on the basis of statements or work permits.
It should be emphasized that the notification in question entitles the foreigner to perform work without the obligation to have a work permit or statement.
It takes place through an ICT system - praca.gov.pl.
The submission of a notification on taking up employment by a citizen of Ukraine is not subject to any fee.
It should be noted that any change of employer by a foreigner requires a new notification, while it is not possible to withdraw or cancel a notification that has already been submitted.
It should be remembered that each conclusion of a subsequent contract with a foreigner, involves the submission of a new notification of employment.
If the time limit for submitting the notification has expired and the employer has not done so, it is necessary to re-employ the foreigner concerned. This means that it is necessary to establish a new contract for his/her employment, from which the new period of 14 days provided for submitting a notification of entrustment of work to a foreigner will be counted.
Citizens of Belarus
The political and social situation in Belarus, in particular the rigged presidential elections in August 2020, has caused a huge increase in emigration from that country to Poland. To deal with this phenomenon, since July 2022, the Polish government has significantly facilitated the legalization of stay of Belarusian citizens residing in our country, on the basis of so-called humanitarian visas, introducing a special procedure for them to obtain temporary residence permits.
Humanitarian visas allow citizens of other countries to stay legally on the territory of Poland and take up work without the need to obtain any additional permits.
The conditions for the issuance of humanitarian visas are defined by the Law on Foreigners, according to which - a foreigner is granted a residence permit for humanitarian reasons on the territory of the Republic of Poland, if the obligation to return:
1) can be made only to a country in which:
2) would violate his/her right to family or private life, or
3) would violate the rights of the child to a degree that significantly endangers their psychophysical development. The competent authority for the issuance of humanitarian visas is the chief of the Border Guard after conducting proceedings to oblige the foreigner to return.
To obtain a humanitarian visa, it is necessary to submit the appropriate application. For this purpose, you need to fill out and sign the visa application form, which is available on the website of the relevant consulate.
The procedure for obtaining a residence card for Belarusian citizens who are staying on the basis of a visa issued for humanitarian reasons was introduced by the Decree of the Minister of Internal Affairs and Administration of June 14, 2022 on citizenship, the possession of which entitles foreigners to apply for a temporary residence permit. It came into effect on July 9, 2022.
It should be noted that the condition for the granting of a temporary residence permit under the terms of the above-mentioned legal act is that a citizen of Belarus must have resided in the territory of Poland on the basis of a national visa issued for humanitarian purposes immediately prior to the application for its granting.
You need to know that a temporary residence permit is granted for the period of time necessary to realize the purpose of the foreigner's stay in the territory of the Republic of Poland, but no longer than 3 years.
A temporary residence permit is granted or denied by the voivode competent for the foreigner's place of residence, by way of a decision.
It should be noted that the foreigner is required to submit an application for a temporary residence permit in person, no later than on the last day of his/her legal stay in the territory of the Republic of Poland.
It should be emphasized that on the basis of the Law on Employment Promotion and Labor Market Institutions, the holder of this type of permit is exempt from the obligation to have a work permit, so he/she can perform work fully legally without the need for having this document.
It should be added that as of January 1, 2023, a foreigner who has been granted the temporary residence permit in question has the option of applying for a Polish foreign travel document.
