Changes to the Red-White-Red Card and EU Blue Card as of 1 October 2022

On 1 October 2022, the largest legislative reform of the Red-White-Red Card and the EU Blue Card in Austria in recent years came into force. Even if the changes only seem to affect some details at first glance, in individual cases they can have a great influence on whether an application can be successful or not. Especially in the case of the EU Blue Card, there are considerable facilitations for applicants. The most important changes are listed below.

Changes in the minimum payment for other key workers and graduates

Up to now, graduates had to prove a minimum gross monthly salary of € 2,551.50 in order to apply for a Red-White-Red Card. This threshold is now dropped. All that has to be proved is a salary according to the applicable collective agreement (which is obligatory anyway) plus a possibly existing overpayment customary in the company.

The distinction between applicants under and over 30 years of age when applying for a Red-White-Red Card as other key workers has been abolished. The lower minimum salary of € 2,835.00 per month (value for 2022) now applies regardless of age.          

Introduction of a Red-White-Red Card for regular employees

Persons who have worked as registered seasonal workers in the same economic sector for at least seven months in the past two calendar years can obtain a Red-White-Red Card, provided they can prove German language skills at A2 level and the employer holds out the prospect of a permanent employment relationship. A labour market test is not required.        

Simplifications in the points system of the Red-White-Red Card

Achieving the required points according to the corresponding points system for the issuance of a Red-White-Red Card (Annex A, B and C to the Act on the Employment of Foreign Nationals) will be made easier. From now on, half-years of work experience will also be counted, language certificates to be submitted may be up to 5 years old, and skilled workers in shortage occupations will now receive the highest possible number of points in this category for having completed training in the shortage occupation. Furthermore, additional points are awarded if the predominant company language is English and other key employees do not have to provide evidence of work experience adequate to their training, but any kind of work experience is to be valued accordingly.

Strong upgrading of the EU Blue Card

The most far-reaching changes are brought about by the legal reform for the EU Blue Card. First of all, the minimum salary to be proven for the issuance will be reduced from one and a half times to the simple average Austrian gross annual salary. In 2022, this means a gross annual salary of € 44,395.00 plus special payments. However, the Federal Minister of Labour and Economic Affairs has been given the option of raising the minimum salary requirement to the previous level in the event of an above-average increase in wages or an unfavourable situation on the labour market,

In addition, an EU Blue Card for IT specialists will be introduced. For this purpose, no university studies need to be proven, but three years of relevant professional experience acquired within the last seven years prior to application is sufficient.

In addition, holders of an EU Blue Card now have the advantage that they can change their employer relatively easily after a period of employment of 12 months. No labour market test is then required and the new employment may also be taken up immediately, even before a decision has been made on the application for the new EU Blue Card. If the applicant has not yet been employed for 12 months, the new employment may only be taken up after 30 days from the date of application.

Furthermore, holders of an EU Blue Card have 6 months from the loss of their job to find a new job before the AMS has to send a notification to the residence authority that the requirements for the issuance of the residence title are no longer met.

Self-employment

The reform of the law also makes things easier for self-employed persons. For example start-up founders only have to prove a capital of € 30,000.00 (instead of € 50,000.00 as before) for the issuance of a Red-White-Red Card, half of which must be equity capital. In addition, holders of a Red-White-Red Card, an EU Blue Card or a Settlement Permit for Artists are allowed to pursue a self-employed gainful activity in addition to their main activity, provided that this is subordinate to the actual employment and the legal requirements for exercising it are met.

Right of residence for displaced persons from Ukraine and residence title in Austria

With the Displaced Persons Ordinance, displaced persons from Ukraine who had to leave their homeland due to the war were granted a temporary right of residence in Austria.

Oxana is a Ukrainian citizen. She graduated in business studies in Kyiv and has been working in the management of hotels around the world for several years. At the time when war broke out in Ukraine in February 2022, Oxana was working in a luxury hotel in Dubai.

Oxana had been planning to come to Vienna for some time to work in the management of a hotel at the Vienna Ringstrasse. She entered Austria in May 2022 and shortly afterward applied for a Red-White-Red card as Another Key Worker.

A few weeks later, Oxana received notification from the immigration authority that the authority would probably reject her application because Oxana, as a Ukrainian citizen who had entered Austria after 24 Feb 2022, was already entitled to a right of residence in Austria on the basis of the Displaced Persons Ordinance. Applying for a residence title such as a Red-White-Red Card is therefore not permissible. Oxana does not understand this, because she did not come to Austria as a refugee, but as a regular immigrant.

Who is covered by the Displaced Persons Ordinance?

The Ordinance on Displaced Persons applies to Ukrainian citizens residing in Ukraine as well as to third-country nationals or stateless persons who have been displaced from Ukraine due to the armed conflict as of 24 Feb 2022. In addition, family members (spouses, minor children, or other relatives who have lived in a domestic community) of these persons are also covered by the Ordinance.

In addition, the Ordinance also applies to Ukrainians who had a valid residence title in Austria on 24 Feb 2022, but which was not extended or withdrawn, or if they have resided lawfully in Austria.

All these persons are entitled to a temporary right of residence in Austria at least until 3 March 2023. However, this right expires if the person concerned leaves Austria for more than a short period of time.

For whom are there exceptions to the applicability of the Displaced Persons Ordinance?

There are exceptions to the Displaced Persons Ordinance for persons who have committed crimes against peace, a war crime, or a crime against humanity as defined by international conventions. Or for persons who have committed serious crimes or have been guilty of acts contrary to the purposes and principles of the United Nations; or if they pose a threat to the security of the host state or to the general public.

What happens when the right of residence expires?

The ordinance itself provides that it is automatically renewed for six months, but no longer than one year if it is not terminated. Furthermore, the law also expressly provides that in the event that the armed conflict continues and permanent integration of the displaced persons should become necessary, it may be possible to apply for a residence title in Austria even if the necessary requirements for this are not met.

For Oxana, this means that she now has to face the cumbersome bureaucracy of the Austrian immigration authorities and explain to them why she does not fall under the displaced persons ordinance and is, therefore, to be classified as a regular immigrant. However, Oxana is very optimistic that she will succeed.

Default appeal – What to do if the authority fails to act?

Application for the granting of Austrian citizenship

Valeriya is (still) a Ukrainian citizen. A few weeks ago she applied for Austrian citizenship. She submitted all the necessary documents together with her application. If the authorities now leave her application pending, she can lodge a default appeal.

However, she hopes to have her Austrian passport in her hands in a few weeks. In fact, shortly after her application, Valeriya receives an invitation to take the citizenship exam. She passes without any problems.

Valeriya now waits anxiously every day for a positive decision from the authorities, but nothing happens for months.

Despite repeated requests to the authorities, more than half a year has passed since Valeriya submitted her application. Hence, seh has not received any new information about her citizenship application.

Can Valeriy speed up the authorities’ decision?

When can a default appeal be filed?

As a matter of principle, an administrative authority must issue a decision without undue delay, but at the latest after 6 months. This also applies to an application for the granting of Austrian citizenship. This period begins on the day on which the application is received by the authority.

If the authority does not make a decision within this period, the applicant has the possibility to lodge a default appeal.

The written default appeal must comply with strict formal content requirements stipulated by law and must therefore be drafted very carefully.

After filing the appeal, however, the authority can still issue the requested decision within a period of up to 3 months. Whether it does so is at its discretion. If the authority does not issue the requested decision, it has to submit the default appeal together with all documents to the competent administrative court.

The court may limit its decision to the most important legal issues. The administrative court may order the authority to make up for the missed decision within a maximum of 8 weeks. In addition, the administrative court also has the possibility to decide on the matter itself.

Public liability claim in case of default

Last but not least, a serious violation of the authority’s duty to decide can also give rise to a claim for public liability, i.e. a claim for damages against the public legal entity of the authority (the respective federal state), which, however, must be asserted in separate court proceedings.

Valeriya is therefore not completely defenseless. In any case, she has the possibility to file a complaint against the authority’s inactivity.

Residence permit for Intra Corporate Transferees – ICT

How can Intra Corporate Transferees – ICT be legally employed in Austria?

Jason is a US citizen and has been working as a trainee in a large pharmaceutical company in the USA for 8 months. As part of his traineeship, Jason is required to work at a European subsidiary for at least 6 months in order to get to know the international orientation of his employer.

Jason is offered several traineeship positions in Europe, but he finally chooses Vienna because part of his family originally comes from Austria. What requirements does Jason now have to fulfill in order to start working as a trainee in Austria?

For whom is a residence permit for intra-corporate transferees possible?

Workers from third countries who work for an internationally active employer and are temporarily employed in one or more branches in an EU member state can obtain such a residence permit for a temporary stay without the intention of settlement. The prerequisite for this is that the worker in question is employed as a manager, specialist, or trainee. A specialist or manager must already have been employed in the company for 9 months (a trainee for 6 months) before the residence permit can be applied for.

What requirements must be met for a residence permit to be granted to intra-corporate transferees?

First of all, the applicant must be able to present an employment contract with the foreign employer and a secondment letter (working conditions for the duration of the transfer as well as a return guarantee for the foreigner to an establishment based outside the EU). This must also prove that the applicant can return to a branch of the company after the end of his/her secondment, which must be located in a third country (i.e. outside the EU).

Moreover, the employer must comply with the minimum standards prevailing in Austria with regard to pay, leave, and maximum working hours, and the employee must also be duly registered with social security. In addition, the establishment in Austria must not be affected by a strike, any existing requirements for exercising a regulated profession must be met and the employer must not have violated the provisions of the Employment of Foreign Nationals Act more than once in the last twelve months. Finally, the domestic branch must not have been established solely for the purpose of facilitating the entry of transferred workers, and the branch must be engaged in genuine business activity and must not be insolvent.

In addition, the general requirements for the granting of residence titles must be fulfilled (secure livelihood, health insurance, no threat to public security), whereby proof of accommodation customary in the locality does not have to be provided.

Where and how must the application for a residence permit for intra-corporate transferees be filed?

The application must be submitted by the employee concerned in person to the Austrian representation authority abroad (embassy, consulate).  However, if the employee in question can enter Austria without a visa, the application can also be submitted in Austria at an immigration office.

Together with the application, an employer’s declaration must be submitted in which the employer provides more detailed information on the applicant’s business and planned employment.

After examining all application documents, the competent immigration authority has to forward the application to the Public Employment Service Austria (AMS), which prepares an expert opinion on the fulfillment of the labour market-relevant prerequisites. If all prerequisites are met, this expert opinion is forwarded to the immigration office, which then issues the residence permit.

Summary

For Jason, this means that he has to apply for a residence permit as Intra Corporate Transferees – ICT at the Austrian embassy in the USA before he enters the country and starts his traineeship in Austria. Documents such as the employer’s declaration or a secondment letter, which have to be submitted together with the application, will be provided to Jason by the Austrian branch of the company.

The authorities must make a decision on Jason’s application within 8 weeks of the application being submitted. Extensions of the residence permit are possible, but the total duration of stay may not exceed 3 years for employees transferred within the company and 1 year for trainees.

Finally, after overcoming all the bureaucratic hurdles, Jason can start his traineeship in Austria. As he really likes it in Vienna, he even extends it by another 6 months, for which he is quickly and easily granted an extension of his residence permit by the authorities.

Necessary income for the granting of Austrian citizenship

How high does the income have to be for Austrian citizenship to be granted?

The granting of Austrian citizenship is linked to a number of prerequisites. In addition to a sufficiently long residence in Austria and some general legal requirements (such as exemption from punishment for serious offenses or an affirmative attitude towards the Republic of Austria), a sufficiently secure livelihood must be proven. How this is calculated and which income and expenses have to be taken into account is answered here.

Austrian citizenship may only be granted to persons who are able to cover their living expenses in Austria by means of an adequate income and without recourse to social welfare benefits and who have sufficiently secured this income.

For this purpose, the applicant must have fixed and regular own income from gainful employment or other income, legal maintenance claims or insurance benefits. The applicant must prove these claims for a total period of 36 months within the last 6 years prior to the application, whereby the last six months prior to the application are included in any case.

This means that in order to prove that he or she has sufficient means of livelihood, an applicant must pick out the best 30 months of the last 5.5 years prior to application and submit the relevant proof of income to the authority for this purpose. In addition, there should also be sufficiently high income in the last six months before the application, because these months are in any case included in the assessment by the authority.

How high must the regular income for Austrian citizenship be?

How high does the regular income have to be for the authorities to recognise it as a secure livelihood? The answer to this question can be found in the General Social Insurance Act (ASVG). There, the reference rates for the entitlement to a compensatory supplement to pensions from the pension insurance are regulated. The applicant’s income, without recourse to social assistance benefits, must at least correspond to the average of the reference rates of the last three years before the application in a period of (the best) 36 months in the last 6 years before the application. These reference rates change annually. In 2021, the reference rate for single persons is € 1,000.48, for married couples € 1,578.36 and for each child an additional € 154.37.

How can I prove that I have a secure livelihood?

For example, wage slips, wage confirmations, work contracts, preliminary contracts under labour law, confirmations of pension or other insurance benefits, proof of receipt of childcare allowance or proof of own assets in a sufficient amount can be submitted as proof of secure livelihood. However, maintenance claims are only taken into account if they are legally justified. Benefits from maintenance contracts or voluntary allowances and gifts of money (even if these are made regularly), on the other hand, cannot be used as proof of a secure livelihood.

How are regular expenses taken into account?

The applicant’s own fixed and regular income is reduced by regular expenses. These regular expenses include rent, loan payments, garnishments and maintenance payments to persons not living in the joint household. These regular expenses are to be deducted from the net income, leaving a so-called “free ward” (for 2021: € 304.45), which is not taken into account when calculating the regular expenses. Thus, only the regular expenses reduce the income that exceeds this “free ward”. If childcare allowance is received in the last six months prior to the application, subsistence is considered to be sufficiently secured in this period in any case.

A simplified example of the calculation of sufficient income for Austria citizenship

If a claimant (single) has regular monthly income of € 2,000.00 net and regular expenses of € 800.00, in a first step the “free ward” has to be deducted from the regular expenses.

Regular expenses (for rent, loan, etc)……..€ 800.00
Deduct free ward……………………………………..- € 304.45
Regular expenses to be deducted………..€ 495.55

In a second step, the regular expenses calculated in this way are to be deducted from the regular net income.

Regular net income…………………………………€ 2,000.00
Regular expenses to be deducted………- € 495,55
Regular own income…………………………….€ 1,504.45

As the regular monthly income of the applicant is higher than € 1,000.48, his livelihood would be sufficiently secured this month. However, if the applicant would also have to provide for a wife with this income and with the same expenses, the threshold of € 1,578.36 would not be reached this month.

Use the online calculation tool to check whether your livelihood is sufficiently secured!

Are there also exceptions?

Persons who, due to a disability or a permanent, serious illness, are impaired in earning their regular livelihood are exempt from the obligation to prove this according to the described requirements. These restrictions must in any case be proven by a medical certificate.

Conclusion

The exact calculation of a secure livelihood as a prerequisite for the granting of Austrian citizenship can therefore be very complicated, especially if the income comes from different sources or is offset by high regular expenses. In order to avoid unpleasant surprises, it is, therefore, advisable to check carefully before applying for the granting of Austrian citizenship whether all legally required prerequisites, such as the sufficiently secure livelihood, are actually fulfilled to the required extent.