A temporary residence and work permit (defined as a unified procedure) is the most popular type of a residence permit in Poland. This permit is granted for a period of up to 3 years, and the decision, as a rule, indicates the employer and the conditions of the individual’s work. A foreign national obtains the right to stay and work without the need to renew the visa or obtain a separate work permit. The popularity of this permit has resulted in a significant extension of processing time for its issuance - depending on the location, this period may currently range from a few to even several months. The draft amendment to the Act on Foreigners provides for a partial informalisation of the procedure for granting temporary residence and work permits and introduces a new type of procedure for permit amendments. The following solutions, inter alia, have been proposed:
Resignation from the requirement to present documents proving the place of residence in Poland
Currently, immigration offices require foreign nationals to present documents that confirm the place of residence, e.g. lease agreements, written confirmation of property owners, etc. In some cases, this requirement causes significant difficulties, in particular when a person uses short-term rental arrangements or when the contract is concluded only in electronic form. After the amendment to the Act, the lack of this requirement will mean that the foreign national will only have to declare the address where he is staying in the application form and update it, depending on the circumstances.
No need to prove a source of stable and regular income
Currently, due to the lack of clear guidelines as to whether a foreign national owns the so-called source of stable and regular income, the authorities request to present various documents that can prove that this condition has been met, e.g. an employment contract, last year's tax declaration, etc. In accordance with the amendment to the Act on foreigners, it is proposed that the individual should receive a minimum remuneration for work, regardless of the working time or legal relationship. A question arises whether such a change will not discourage companies from employing foreign nationals who will not legalize their stay on the basis of a residence and work permit in the case of part-time employment with one company and proportionally lower wage. This creates a risk of disruption to the continuity of employment / availability of the employee who will be forced to obtain a visa outside Poland, which in turn is associated with additional costs and the need for him/her to leave Poland.
Introducing the procedure for changing the temporary residence and work permit in the event of a change of employer
According to the current legal status, a foreign national may apply for a change of his unified residence permit only in the event of a change of: user-employer (i.e. when employed by an employment agency), position, remuneration, working time or the type of contract being the basis for the performance of work. Moreover, the law does not specify the formal requirements necessary to be met when applying for such a change - as a result, this procedure was rarely used in practice, giving way to other solutions that allowed for a faster possibility of changing the conditions of performing work.
The law amendments introduce a separate procedure for changing the granted temporary residence and work permit (on a separate form, after paying the relevant stamp duty) in the event of a change of employer. It is a solution that meets the business needs and can shorten the waiting time of a company for an employee, and the employee waiting time for a new decision. It is worth remembering that the permit may be changed only within the validity period of the permit granted so far, the validity period of the temporary residence and work permit will not be changed. It is also worth remembering that when changing the permit, the employer will be subject to similar verifications as when the employee had applied for a new permit from the point of view of having sufficient financial means, sources of income, running the so-called actual business activity. It should also be noted that the permit may only be changed at the request of the foreign national.
Introduction of the decision change procedure in a situation where a foreign national has obtained the right to work without a work permit is also an interesting proposed solution. It may refer to a situation when e.g. the foreign national obtained a full-time university diploma in Poland during the validity of the residence permit. Such a situation also eliminates the need to submit a new residence permit application.
What should employers pay attention to?
There are many law changes and it is important to prepare for them, especially for those that can support the business in faster employment of foreign nationals. Our practice shows that a detailed analysis of the candidate's situation and the planning of an appropriate path of legalization of stay and work are very important. It allows companies to avoid long waiting periods for an employee or situations in which the employment turns out to be impossible (e.g. due to the choice of path for a change of a decision with a short validity period).
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