Tag: Red-White-Red Card

Employment of foreigners in Austria

The Employment of Foreign Nationals Act applies to the employment of third-country nationals in Austria. An example:

Tom is a US citizen, a college graduate who lives in Texas and has been working for several years, exclusively online, as a freelancer in sales and marketing for an Austrian start-up in the tech sector. When Tom travels to Austria one day to meet some of his colleagues in person, he likes it so much that he decides to move to Austria and continue working for his Austrian employer. He suggests this to his employer, who agrees to help him with the immigration formalities and provide him with all the documents so that he can be legally employed in Austria.

What has to be considered for the employment of third-country nationals in Austria?

The regulations for employment relationships of foreigners in Austria are governed by the Employment of Foreigners Act. According to this law, every person who does not have Austrian citizenship is considered a foreigner. However, there are also numerous exceptions for non-Austrians. For example, persons entitled to asylum, diplomats, pastoral workers, reporters for foreign media, and, above all, EEA citizens and their dependents are excluded from the scope of application of the Employment of Foreign Nationals Act.

Employment within the meaning of this Act is basically any employment relationship, working contracts similar to employment (such as a freelance service relationship or self-employment exercised in a relationship of dependence), training relationships, labor leasing, and company postings in Austria.

What does it mean when the Employment of Foreign Nationals Act applies?

If the provisions of the Employment of Foreign Nationals Act apply to an employment relationship, the employee may not start work until an official permit has been issued by the Employment of Foreign Nationals Authority. The regional office of the Public Employment Service Austria (AMS) is responsible for this.

Before the employment of a foreigner in Austria begins, an employment permit must be applied for and the employee may only start the employment relationship once this permit has been granted. The employer must then report the beginning (and after the end of employment) of an employment relationship with a foreigner to the competent regional office of the AMS within three days.

How are employment permits and residence titles related?

Basically, a residence title only creates the prerequisite for legal residence in Austria, whereas an employment permit is a prerequisite for being able to legally pursue gainful employment in Austria. Many residence titles (such as Red-White-Red Cards or Blue Card EU) combine both the residence title and the employment permit in one document. The advantage of such residence titles is that they can be applied for at the competent immigration authority in one go. The immigration authority then forwards the application to the competent office of the AMS for examination of the prerequisites according to the Employment of Foreign Nationals Act. If the requirements for the issuance of the residence title and the employment permit are met, the relevant residence title is issued by the immigration authority.

Red-White-Red Card (with employment permit included)

Since Tom has a university degree and also gets a relatively well-paid job, he is granted a Red-White-Red Card as a key worker. With this residence title, the AMS had to carry out a replacement worker procedure (this checks whether suitably qualified workers are available on the Austrian labor market), but could not find any suitable alternative candidates. Therefore the employment permit was granted to Tom. As soon as Tom has the coveted residence title in his hands, his employer can register him with social security and he can start working.

Red-White-Red Card: Cooperation between Immigration Authority and Labour Market Service

How do the Immigration Service and the Labor Market Service work together when applying for a Red-White-Red – Card?

Luana is an Albanian citizen and studies at the Vienna University of Economics and Business Administration. As she does not receive any financial support from home, Luana is forced to work while studying. She makes full use of the maximum permissible working time of 20 hours per week on the basis of her residence permit as a student. However, Luana’s success in her studies suffers from her intensive professional activity and at the latest when she only just reaches the 16 ECTS per academic year required for the extension of her residence permit, she decides to take a temporary break from her studies in order to work full time for a while and save enough so that she can devote herself exclusively to her studies in one or two years.

Luana is now thinking about how she can secure her stay in Austria permanently, even if she does not continue her studies. A friend who works as an accountant for a tax consultant tells Luana that payroll accountants are currently in great demand on the labour market and that with such a job one can obtain a Red-White-Red card as a skilled worker in a shortage occupation. To become a payroll accountant, Luana has to attend a demanding course, but a degree is not required for such a job.

Luana applies to her friend’s tax consultancy and immediately receives an offer in which the company agrees to pay for Luana’s payroll course if she agrees to work for the company for at least two years after successfully completing the training.

Luana agrees to this arrangement, successfully completes the course as a payroll accountant and the associated examination and now only needs to obtain a red-white-red card before she can start in her new job.

Competence of the authorities in issuing the Red-White-Red Card

The special feature of the Red-White-Red Card is that the applicant is granted both a residence permit and an employment permit with only one document and by only one authority. However, this (unfortunately) does not mean that only one authority will actually deal with an application.

Applications for a Red-White-Red Card must be submitted to the competent settlement and residence authority. The authority first checks whether the general requirements for the issuance of a residence title are met and whether there may be reasons why a residence title may not be issued.

If the general requirements for issuing a residence title are met and there are no obstacles to issuing such a residence title, the competent settlement and residence authority shall forward the application to the regional office of the Labour Market Service responsible for the employer’s place of business.

The regional office of the Labour Market Service then only checks whether the specific admission requirements for the Red-White-Red Card applied for are met.

After hearing the regional advisory board of the Labour Market Service (administrative bodies of the Labour Market Service consisting of representatives of employees, employers and the Labour Market Service ), the Labour Market Service has to confirm within four weeks to the competent settlement and residence authority whether the admission requirements are met so that the latter can subsequently issue the Red-White-Red Card applied for.

If the admission requirements are not fulfilled, however, the corresponding rejection is not made by the settlement and residence authority, but by the Labour Market Service itself, which does not send the negative decision directly to the applicant, but forwards it to the settlement and residence authority.

What does this mean for Luana’s application – which authority decides?

Even if the application for a Red-White-Red Card is only submitted to one authority and the residence title applied for can also only be issued by one authority, a negative decision can be made by two different authorities, namely by the settlement and residence authority as well as by the Labour Market Service. In both cases, it is possible to appeal against a rejection decision within four weeks of the notification of the decision. However, there is an essential difference in the administrative court to which the corresponding appeal is to be addressed. The regional administrative court of the respective province (Bundesland) in which the authority is located decides against decisions of the settlement and residence authority. In the case of a dismissive decision by the Labour Market Service, the Federal Administrative Court, which has branch offices in several cities in Austria, decides in all cases on an appeal against a decision.

Fortunately, this question does not concern Luana, because her application for a Red-White-Red Card as a skilled worker in a shortage occupation was decided positively and she was granted the residence permit she applied for, so that she can finally start in her new job.

Difference between asylum and immigration law

Julia is a political activist and has to flee her home country with her two children. She is afraid for her life. She decides to come to Austria. Here she applies for asylum for herself and her children. Julia’s cousin Peter lives in the same country, but he is not a political activist. However, he is so dissatisfied with the political situation and the general living conditions that he wants to emigrate and come to Austria as well. For him, however, only the general possibilities for immigration under immigration law come into question.

What is the difference between Julia’s and her cousin Peter’s stay in Austria and what requirements do they both have to fulfil?

Applying for asylum

Julia is persecuted in her home country and has well-founded fear for her life. She is therefore eligible for asylum. Asylum is fundamentally different from immigration law. In Austria, asylum can be granted to persons who are persecuted or fear persecution because of race, religion, nationality, membership of a certain social group or their political convictions. For this purpose, the person seeking protection must apply for asylum in Austria and then go through the asylum procedure.

Firstly, the person seeking protection must file an asylum application in Austria. This can be done at any police station or with any police officer. There is then an initial interview of the person seeking protection at the police station. All relevant data are also recorded there. Afterwards, it is checked whether Austria is responsible for processing the asylum application or not.

Austria is responsible for processing an asylum application if the person concerned has not already applied for asylum in another Dublin state (European Union, Norway, Iceland, Liechtenstein and Switzerland) or has already received a residence title there (Dublin cases). If Austria is responsible, the person is admitted to the basic care of a federal province. There, a residence restriction applies. The applicants must then reside in the federal province where they receive basic care.

After 6 months at the latest, the competent authority must issue a decision on the asylum application. If the decision is positive, the applicant is granted refugee status (entitled to asylum). Persons entitled to asylum are allowed to work in Austria without restrictions and they also have the possibility to get a convention passport.

Right of residence for persons granted asylum

In the beginning, persons entitled to asylum only have a temporary right of residence for a period of three years with full access to the Austrian labour market. If conditions in the refugee’s country of origin improve within these three years or if the person entitled to asylum commits a criminal offence, a revocation procedure is initiated. This means that the withdrawal of the status will be examined and, under certain circumstances, also withdrawn. Otherwise, the right of residence, which had been limited until then, becomes an unlimited right of residence.

If the conditions for granting the right of asylum are not met, however, the refugee can also be recognised as a beneficiary of subsidiary protection. This protection is initially granted for one year and also offers full access to the labour market. If this is not possible either, the only option is regular immigration under immigration law.

Julia applies for asylum in Austria for herself and her children, which is finally granted after a long and nerve-racking procedure.

Immigration to Austria for other reasons

Peter, on the other hand, has no chance of being granted asylum in Austria. He is neither persecuted in his home country nor does he have to fear persecution. Dissatisfaction with the general political circumstances in a country is not a reason for asylum. Peter’s only option is therefore to become a regular immigrant to Austria. He can then try to get a residence permit (e.g. Red-White-Red card) in accordance with immigration law. The higher his education and language skills are, the easier it will be for him to succeed.

Is it possible to switch between an asylum application and an application under the Settlement Act?

The Settlement and Residence Act, which regulates immigration to Austria, does not apply to asylum seekers or persons granted asylum. This means that, in general, it is not possible to obtain a residence title under the Settlement and Residence Act during an ongoing asylum procedure. If the asylum procedure ends negatively and the applicant is not granted asylum, he or she must leave Austria. Exceptions exist only if a return decision would violate the right to private and family life. The rule of thumb in this context is that a return decision may not be issued if the person concerned has been staying in Austria for more than 5 years and is already well integrated (e.g. through proof of language skills).

Peter must therefore try to obtain a residence title in Austria in a regular way, by applying for a residence title according to the Settlement and Residence Act.

Job-Seeker Visa for Austria

Who needs a Job-Seeker Visa?

Oliver is an American citizen and one of the best chefs on the West Coast of the United States. Although he does not have a college degree, he has learned his trade in the most distinguished restaurants in New York City. Currently, he is the head chef at a newly opened French restaurant on the Upper East Side.

One of the service staff at this restaurant is Lisa, a tourism student from Tyrol, who is completing her four-month mandatory internship there as part of her degree.

Oliver and Lisa get along very well, meet each other even in their free time, and fall in love. When Lisa has to return to Austria at the end of her internship to continue her studies here, it is clear to Oliver that he will break camp in New York and follow her.

For Oliver, the question now is how he can come to Austria, find a job and an apartment here, and work legally. While researching on the Internet, he comes across the possibility of applying for a job-seeker visa and thinks that this would probably be the right thing for him. So he gathers his documents, goes to the Austrian Consulate General in New York to apply for such a work search visa, and thinks that it should be done in a few days. But it takes longer than expected. After a few weeks of waiting and several urgencies, Oliver finally receives the answer that his application has been rejected. What had happened?

Requirements for a job seeker visa

A job-seeker visa (category D visa) allows third-country nationals to stay in Austria for up to 6 months in order to find employment here. The prerequisite for this is that the applicant fulfils the general requirements for the issuance of a Category D visa. For this purpose, a valid travel document must be presented and comprehensive health insurance coverage, as well as sufficient means of subsistence for the duration of the stay in Austria, must be proven. In addition, the person in question must also not be on notice for refusal of entry, the issuance of the visa must not pose a threat to public safety and order, and the applicant must not have committed any criminal acts that could create grounds for refusal of entry.

In addition, the applicant must also meet the admission criteria for very highly qualified workers. Here, the Austrian Labour Market Service (AMS) assesses whether, based on education, work experience, age, and language skills, 70 out of a possible 100 points are met according to a certain point scheme. In general, this is only possible for persons who have a university degree, have worked in a management position, have German or English language skills, and are not older than 45 years.

After being granted a visa to seek work, the person in question is then allowed to stay in Austria for a period of up to 6 months in order to look for a job here. If a job is then found, however, this visa does not yet entitle the person to take up employment. For this purpose, a separate residence title must be applied for.

What alternatives are there to the job-seeker visa?

Citizens of many countries have the possibility to stay in Austria without a visa for a period of up to 3 months. This time can also be used to find a job in Austria. As long as the person concerned is staying in Austria legally, i.e. during his/her visa-free stay, the application for a residence title can be submitted directly to the immigration authorities in Austria. However, such a domestic application does not entitle the applicant to stay in Austria beyond the period of validity of his/her visa-free stay. Therefore, if the application has not been processed in time before the expiry of the 3 months, the person concerned must leave the country and await the decision of the authority abroad.

What does this mean for Oliver?

Since Oliver does not meet the requirements as a particularly highly qualified worker and a job-seeking visa is therefore out of the question for him, he simply decides to travel to Austria on the off chance to look for a job here. From the very first day of his stay, he applies to restaurants for a job as a chef and actually finds a position in a Tyrolean tourist resort after just one week.

His new employer already has experience in employing foreign workers, so he also applies for a Red-White-Red Card for skilled workers in shortage occupations for Oliver. Fortunately, Oliver’s application is processed relatively quickly and the necessary verification by the Austrian Labour Market Service is also carried out very quickly so that Oliver is issued a Red-White-Red Card as a skilled worker in a shortage occupation during his visa-free stay in Austria.

Oliver is happy to be with his Lisa again and he enjoys both, his new job and the beautiful Tyrolean mountains in his free time.

Checklist documents for citizenship in Austria

What documents must be prepared when applying for Austrian citizenship?

I recently received the following enquiry from Ahmed from Vienna:

Hello, my name is Ahmed, I come from Egypt and have been living in Austria for seven years now. I completed a technical degree in Egypt and was able to obtain a Red-White-Red card for highly qualified workers, which I have been able to convert into an EU permanent residence title in the meantime.

I am very satisfied with my life in Austria, would like to stay here permanently and apply for Austrian citizenship. I assume that I meet all the requirements for being granted citizenship and am now wondering which documents have to be submitted to the competent authority when applying.

However, my first search on the internet only revealed that I will be informed about the required documents during an initial interview at the immigration office. However, I already have experience with the Austrian immigration authorities and know that the staff there are sometimes not as helpful as I would like them to be. I want to know in advance what bureaucratic hurdles I can expect when applying for Austrian citizenship.

Response:

Dear Ahmed, this checklist gives you an initial overview of which documents may be necessary when applying for Austrian citizenship. Please note, however, that in individual cases further documents may be required which are not listed here. This largely depends on the authority responsible for your application.

Residence title for family members – What happens in the event of a divorce?

As a third-country spouse of an Austrian citizen, you usually receive a residence title as a family member without any problems, but what are the consequences of a divorce?

During a study visit to the USA, Julia, an Austrian, meets the American football player Aaron and falls in love with him. After only a few weeks, the two decide to marry and live together in Austria in the future.

As a US citizen, Aaron is a third-country national, but as the spouse of an Austrian woman who finds a well-paid job after returning from the USA and has also inherited a family home from her parents, he receives a residence title as a “family member” without any problems. This residence title is initially issued for one year, can be extended on application and entitles the holder to take up any gainful employment in Austria.

Problems of life in Austria

Just a few weeks after the wedding, things start to crumble between Julia and Aaron. Aaron is disappointed that he cannot continue his career as a football player in Austria and cannot find any other employment. Julia, on the other hand, is absorbed in her new job and often works late into the night. Just three months after the wedding, Aaron tells Julia that he is no longer interested in a life with her and wants a divorce. After an initial shock, Julia realises that this marriage was a big mistake and agrees to the divorce.

In the meantime, however, Aaron has already started taking a German course and has fallen in love with his German teacher Sarah, with whom he begins a relationship. For this reason, he wants to continue living in Austria after his divorce, although he has learned from his experience with Julia and wants to take his time with a possible second marriage. How and under what circumstances can Aaron maintain his right of residence in Austria even after his divorce from Julia?

Right of settlement of family members

Family members who have been granted a residence title “family member” acquire an independent right of settlement. However, if the status of a family member ceases due to divorce, this residence title can no longer be issued. However, if the former family member fulfils the general requirements for the issuance of a residence title and there are no obstacles to the issuance of a residence title, a “Red-White-Red Card Plus” is to be issued. The cessation of the status as a family member has to be notified to the authorities within one month.

General requirements and obstacles to issuance of a residence title

Residence permits may only be granted to a foreigner if this is not contrary to public interests and if relations with other states are not substantially affected if a legal entitlement to accommodation customary in the locality is given, if health insurance coverage covering all risks exists and if sufficient means of subsistence can be proven.

Obstacles to issuance are, for example, valid entry bans, overstaying the visa-free stay in Austria or legally binding punishments for unlawful entry into Austria.

Exceptions

Aaron has lived in his wife’s house until now, was covered by health insurance through her professional activity and does not receive any income himself. It is therefore currently not possible for him to fulfil the general requirements for the granting of a residence title in Austria. Under certain circumstances, however, a residence title can be granted to family members even if they do not fulfil the general requirements.

This is the case if the spouse dies, the spouse is to blame for the divorce or for reasons that are particularly worthy of special consideration. Such reasons worthy of special consideration exist in the case of victims of a forced marriage or if family members were victims of violence or if the residence title was withdrawn because the merging spouse was legally convicted of a committed criminal offence.

What can Aaron do now?

If Aaron were to apply for a Red-White-Red Card Plus immediately after his divorce, his application would have to be rejected because the general requirements for a residence title were not met and Aaron would lose his right of residence in Austria. One of the exemption provisions would not apply to him either.

He should therefore try to delay the divorce until he can stand on his own two feet, i.e. until he has found his own accommodation, taken out health insurance and got a job that guarantees him at least a certain basic income. Once he has achieved this, he can also be granted a “Red-White-Red Card Plus” after the divorce. 

Checklist Red-White-Red Card

The Red-White-Red Card celebrated its 10th  birthday in July 2021. It is, therefore, time to review whether the goal pursued with it, namely to bring qualified workers to Austria on the basis of objective criteria, has actually been achieved or whether it has merely created an administrative hurdle race for immigrants willing to integrate.

Why Red-White-Red Card?

With the introduction of the Red-White-Red Card in 2011, the Austrian legislator wanted to create a new and more flexible way to bring skilled workers to Austria than it had been possible with the rigid system of key workers until then. A major innovation at that time was that highly qualified workers were also allowed to enter Austria with a job-seeker visa in order to look for a job here.

The issuance of residence permits was to be based on objective criteria such as the impact of the Austrian labour market, the economic performance of the national economy, and the expected integration ability of the immigrants.

Red-White-Red Card for whom?

The aim of the new regulations was to provide access to the Austrian labour market for highly qualified key workers, skilled workers in shortage occupations, and graduates of Austrian universities who originate from third countries, in order to cover areas in which a labour shortage cannot be met by the labour potential available domestically.

How many red-white-red Cards?

Since 2020 was an exceptional year in every respect, the establishment and residence statistics of the Ministry of the Interior for 2019 must be used to answer this question in the most objective way possible.

In 2019, there were almost half a million valid residence titles in Austria, over 60% of which were “EU permanent residence titles”, i.e. the residence title that forms the final stage on the path to integration (after that, there is only the possibility to apply for Austrian citizenship). Another 20% of the residence titles were the Red-White-Red Card Plus and only slightly more than 1% of all residence titles in 2019 were a “simple” Red-White-Red Card.

Of these Red-White-Red Cards, the largest share, more than half, was issued to other key workers, while the smallest share, not even 2%, was issued to self-employed key workers and start-up founders.

Is the Red-White-Red Card a success?

If you look at the bare figures, the answer to this question must clearly be no. Even though the Red-White-Red card aims at the immigration of as many highly skilled workers as possible to Austria, almost 10 years after its introduction it remains only an option for the elite of immigrants and thus for a few who are able to meet the high requirements that applying for a Red-White-Red Card imposes on them. Most of the initial applications for a residence title in 2019 were for a “family member” residence title, i.e., a residence title in which the applicant’s right of residence is granted based on the right of residence of a close relative and not on the applicant’s individual professional qualifications.

Nonetheless, the Red-White-Red card offers a sensibly coordinated model that provides those willing to immigrate and integrate with the opportunity to secure a right of residence in Austria through professional qualifications.

An overview of the possibilities to obtain a Red-White-Red Card can be found here: