Change in the role of the AMS Regional Advisory Council in the granting of emplyoment permit
On 20 July 2023, several amendments to the Employment of Foreign Nationals Act (Ausländerbeschäftigungsgesetz) in connection with the granting of employment permits to foreign nationals came into force in Austria. These amendments provide relief if the regional advisory board of the Public Employment Service Austria (AMS) does not approve the granting of an employment permit.
Repeal of the law by the Constitutional Court
In its decision of 14 December 2021, the Austrian Constitutional Court had completely repealed the provision of the Employment of Foreign Nationals Act that required unanimous approval of the granting of an employment permit by the Regional Advisory Board of the Public Employment Service Austria (AMS). This was justified by the fact that an administrative authority is thus bound in its decision-making competence to the approval of a non-authoritative body.
Employment of foreigners for particularly important reasons
For this reason, a new regulation has now been created that enables the granting of an employment permit even if the Regional Advisory Board of the Public Employment Service Austria does not agree. Accordingly, the granting of an employment permit is now also permissible if the employment of a foreigner is necessary for particularly important reasons. Such important reasons are, on the one hand, the preservation of existing jobs of domestic workers and, on the other hand, the employment of a qualified worker in a shortage occupation. In addition, such an important reason can also be justified by a public or supra-company macroeconomic interest.
Residence permit family community
In this context, the employment of persons with a “family community” residence permit (such as spouses of persons with a residence permit) was also newly regulated. Such persons can also obtain an employment permit without the consent of the AMS regional advisory board, provided that all other requirements are met, such as a positive labour market check.