The number of foreign residents in the capital city of Lower Silesia has been on the rise for the last several years. Poland’s expat community is growing: they choose the country to study, in search of employment or due to the political situation in their native countries. According to the statistics provided by the Ministry of Foreign Affairs, Polish consulates in Ukraine alone issued over 800 thousand visas in 2014 alone.
“Many employers remain quite sceptic towards taking on foreign employees. This is probably due to the fact they do not know how to follow the procedures. Employers primarily seek to avoid the risk of serious trouble for themselves and their employees,” says Łukasz Czajkowski, Head of the Business Support Centre at the Wroclaw Metropolitan Area Development Agency.
“We are representing the IT sector, and what we find particularly difficult is the time we have to wait for a variety of decisions and permits for our foreign candidates, e.g. our employees have to wait to obtain a residence card for several months. This can sometimes have a negative effect on our business,” says Paweł Łopatka from Wroclaw-based SoftServe.
Employers’ perspective on the relocation and employment of foreign candidates
The duties of employers seeking to employ non-EU citizens (non-applicable to EU citizens and the citizens of other European Economic Area member countries and the Swiss Confederacy and their family members). Their duties include:
- Checking the candidate’s residence permit prior to their employment. These documents are: a short stay Schengen visa (C)), long stay Schengen visa (D), residence card, Karta Polaka, residence permit, e.g. long-term residence permit.
- Making a copy of their residence papers.
- Keeping the copy in safe storage for the entire employment period.
- Reporting the foreign candidate to ZUS (social insurance).
The duties apply to entities that offer employment to foreign candidates, including both employment contracts and civil-law contracts. Hence it must be noted that the popular view whereby foreign candidates can be offered employment contracts exclusively is unfounded. However, employment contracts imply certain procedures for a selected group of foreign candidates (presented below).
In order to be eligible for work in Poland, foreign candidates are required to obtain both a residence and a work permit (Act of 20 April 2004 on the Promotion of Employment and Labour Market Institutions). However, citizens of selected countries are not reqiuired to obtain a work permit. These countries are: Armenia, Belarus, Georgia, Moldova, Russia and Ukraine.
An employer who seeks to offer a job to a person from one of the above mentioned countries must register “The Declaration of Intention to Offer Employment to a Citizen of the Republic of Armenia, Republic of Belarus, Republic of Georgia, Republic of Moldova, the Russian Federation and Ukraine,” at the District Employment Agency in their area. In person or by proxy, the employer must submit the completed declaration to the local District Employment Agency with its copy and a suitable power of attorney (if applicable). The declaration must provide the personal details of a foreign candidate. In Wroclaw, the registration period takes up to 15 working days. The Procedure is free of charge.
“In 2015, the Wroclaw District Employment Agency alone received 36 thousand applications from employers (99% of which concerned Ukrainian nationals) who sought to employ foreign professionals using the simplified procedure. The procedure applies to the citizens of the following six countries: Armenia, Belarus., Georgia, Moldova, Russia and Ukraine, who are legally eligible to work in Poland for 6 months over a period of 12 consecutive months without the necessity to obtain a work permit,” says Maciej Sałdacz, Deputy Marketing Head at the District Labour Office in Wroclaw.
The 6 months over the next 12 months can be broken down into shorter periods, which adds to flexibility on the employer’s part. Once the period of full six months in employment comes to an end, a foreign employee is required to leave Poland. In order to regain eligibility, the foreign candidate has to wait for the remaining six months in order for the period of 12 months to come full circle.
All non-Polish nationals are required to submit their work permit applications at a suitable Provincial Office throughout Poland. In the case of Wroclaw, they can do so at the Provincial Office of Lower Silesia, Department of Civic Affairs and Foreign Residents. Foreign candidates are required to submit their applications in person if they are currently in Poland, or their completed application form must be submitted by their employer with a copy of the document commonly known as “information from the Starost’s Office on the labour market test” from the District Employment Agency (if applicable), a copy of the candidate’s passport, the employer’s transcript from the National Court Register and a suitable payment (50-100 PLN depending on the length of the permit). The waiting period for the permit is at least one month.
Where employment is offered to the citizens of Armenia, Belarus, Georgia, Moldova, the Russian Federation or Ukraine, the employer can also use the application procedure to obtain a work permit instead of registering the declaration of intention to offer employment (which, as has been explained above, makes the candidate legally eligible to work in Poland for 6 months over a period of 12 consecutive months without the necessity to obtain a work permit) and submit an application form to obtain a work permit for a period from 3 months to 3 years.
“What differs the two is a longer waiting time, a longer expiry date, the number of attachments enclosed with each form and a stamp duty. That being said, the employer can obtain a work permit for their selected candidate for a period of 3 years without any additional formalities,” Oksana Kartavtseva, owner of Wroclaw-based relocateyou.pl.
Labour market test, or the Starost’s opinion
The above document, namely the labour market test, which is also known as the “Starost’s opinion” as is issued by the local District Employment Agency based on the employment offer submitted, confirms that the employer is unable to meet their staffing needs in the register of job seekers and unemployed persons.
“The labour market test serves as a procedure to obtain information on the local labour market situation to confirm that there are no suitable candidates for a given position in the area. This means that a foreign candidate can obtain a work permit to work for a given employer where no suitable candidates are registered at the District Employment Agency in the area,” informs Maciej Sałdacz.
The Starost’s opinion on the local labour market must be prepared within 14 days where no suitable candidate exists, plus additional 7 days if potential candidates have been registered in the area. The application form can be submitted online, which only speeds up the entire process. It must be noted that the requirements concerning foreign employees should be related to a position on offer and be reflected in its duties; the position and remuneration should be in keeping with the data provided in the declaration of intention to offer employment and/or the work permit and the data included in the employment contract to be signed by the employer (e.g. position: App Designer with a salary of 4,500 PLN gross monthly; all three documents should provide the same information). Where the employer intends to offer the same job to a larger number of foreign candidates, they are not required to complete a separate application form for each employee. It is sufficient that they provide the number of employees in the offer of employment and submit a request to obtain one original per each employee.
The Ministry of Labour and Social Policy has created what is known as the classification of professions and areas of expertise (“the systematic register of professions and areas of expertise to be found in the labour market”). When defining the position that the foreign candidate is eligible for, the employer is required to consult the register prior to filling in all the necessary application forms.Click here.
The Starost’s opinion is not necessary where a candidate has worked in one position in one company for at least 3 months. However, the opinion is required where a candidate intends to stay in Poland for a period longer than 6 months and must apply for work and residence permits. A stamp in the travel document of the candidate serves as a confirmation of the application for the extension of a visa or a residence permit. A copy of the document with the stamp serves as a sufficient proof that a foreign national resides in Poland legally, which nonetheless must later be confirmed with their original work and residence permits.
Penalties for illegal employment
It must be noted that where a foreign national is employed without a valid visa or documents authorizing their stay in Poland, or without a work permit (if required), a fine from 3 to 10 thousand PLN can be imposed on the employer. A fine of up to 1 thousand PLN shall also be imposed on the foreign national.
Resources on labour law for employers:
- Act of 15 June 2012 on the Effects of Offering Employment to Foreign Nationals who Reside Illegally in the Republic of Poland
- Employment for Foreign Nationals: District Employment Agency in Wroclaw
- Polish Legal Regulations for Foreign Nationals (Polish-Ukraininian resources)
- Office for Foreigners
- Provincial Office of Lower Silesia