The draft amendment to the Act on Foreigners provides for a special regulation enabling the issuance of residence and work permits for which applications were submitted before January 1, 2021.
Why such a solution?
The waiting period for temporary residence permits has increased significantly in recent years. It was caused by various circumstances. The pandemic situation did not help due to e.g. the inability to submit an application in person or staffing difficulties in voivodeship offices, which made the queues even longer. Currently, applications for residence permits are being processed with a delay of several months (sometimes years). This particular regulation would make it possible to "sort out" outstanding cases. Some of the permits may even turn out to be no longer needed.
Not all applications submitted before January 1, 2021 will be given priority
The special regulation will only apply to applications for a residence permit for the purpose of performing work in the territory of Poland, and more precisely, those submitted on the basis of employment contract or contract of mandate. The good news is that the regulation will also apply to appeals against negative decisions to the Office for Foreigners which are still pending and submitted within the prescribed deadline.
What will the process look like?
The regulation includes quite unusual solutions that are worth paying attention to. It is untypical, for example, that the decision could be issued without the need to appear in person at the office. This should make it much easier to issue such permits without delaying the processes currently underway.
The residence permit issued under this special procedure will not specify the conditions of work by the foreign national, nor will it indicate the employer. Having such a decision, a person will be able to work in the entity of his/her choice. The document exempts from the necessity to have a work permit but only under certain conditions. The solution introduces the following requirements::
- remuneration - it cannot be less than the minimum salary, regardless of the working time or legal relationship;
- basis of work - work should be performed on the basis of an employment contract or contract of mandate;
- requirement to submit a statement - within 60 days from the date of delivery of the decision, it will be necessary to submit a statement from the employer / principal about the entrustment of work, along with an indication of the conditions of such work. Such a declaration can only be made once!
What are the expected effects of failure to meet the above conditions?
The draft Act clearly states that failure to submit the declaration within the prescribed period will result in the expiry of the permit by law. Failure to comply with the requirements relating to the legal basis of work or salary will have the same consequences. In the latter case, however, the office will be obliged to issue a decision cancelling the permit and specifying its expiry date. This creates a major risk for employers which should be mitigated by introducing adequate procedures aimed at preventing illegal employment. If the decision expires and there is no other basis for stay, the foreign national will be obliged to leave Poland within 30 days, and the Border Guard will be informed about this fact. Losing an employee overnight can cause a significant cost, especially if the employee was carrying out a key project.
Additionally, the state-maintained register of cases will serve as a basis for audits of legality of work performed by the relevant authorities.
Will it be possible to change employers?
It depends on when the work will be undertaken and the declaration of the employer will be submitted. Performing work based on an "in blanco '' decision until the declaration is submitted will be considered legal provided that the declaration is submitted by the same employer. Thus, changing employers before submitting the declaration could result in an illegal employment. After this date, the change of the employer may take place only if the decision is changed.
Residence card
A foreign national will not receive a residence card until the situation when the permit could expire is excluded. For this reason, the residence card will be available only after the employer's statement is submitted and the terms of employment verified by the authorities. Only then will the fingerprints be submitted as well.. Unfortunately, this may also mean significant waiting times for the document that will enable the foreign national to travel abroad.
Inspections
Various inspections are planned, including of the compliance of minimum requirements imposed by the special solution.The voivode may cancel the permit issued under this special procedure if the person is a threat to the state's security or lacks the necessary health insurance. It is worth emphasizing that unjustified failure to appear in the office for the audit may also result in a cancellation of the permit.
What should employers pay attention to?
In particular, employers should verify the status of foreign nationals working for them, especially those who await their residence permit. Considering the fact that the employer is obliged to make sure that the foreign employee stays and works legally in the territory of Poland, it will be crucial to introduce appropriate procedures aimed at monitoring their status.
Please feel free to contact us if you have any questions.
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