Corporate immigration in Austria – Lexology

General framework

Legislation

What primary and secondary legislation governs immigration in your jurisdiction?

In Austria, the most important sources of immigration law are:

• the Alien Employment Act;
• the Settlement and Residence Act;
• the Alien Police Act; and
• the Citizenship Act.

The following legislation is also relevant to foreigners who want to work in Austria:

• the Austrian Staffing Act;
• the Construction Workers’ Holiday and Severance Pay Act;
• the Salary and Social Dumping Prevention Act; and
• collective bargaining agreements that specify the minimum wage for certain industries.

EU law is also relevant for Austria and has priority of application over conflicting national Austrian law.

Jurisprudence of Austrian courts and the European Court of Justice (ECJ) also has to be respected.

International agreements

Has your jurisdiction concluded any international agreements affecting immigration (eg, free trade agreements or free movement accords)?

Austria is party to many bilateral and multilateral treaties and agreements that regulate, for example, the movement of persons across borders in the Schengen area, visa requirements, double taxation or social security matters.

Austria has also signed establishment agreements with international organisations that grant special entry and stay privileges to officials (and their dependants) of international organisations.

Regulatory authorities

Which government authorities regulate immigration and what is the extent of their enforcement powers? Can the decisions of these authorities be appealed?

Austrian immigration law is administered by the following authorities:

• the labour market authority (Austrian Public Employment Service);
• local municipal authorities;
• Austrian embassies or consular missions abroad;
• the Central Coordinating Department of the Federal Ministry of Finance, which is responsible to investigate illegal employment and to review the pre-arrival declarations that must be filed before EU nationals and third-country nationals employed by an employer based in the EU, the European Economic Area (EEA) or Switzerland, are assigned to Austria; and
• the financial police are responsible for preventing illegal working or social welfare or tax fraud in Austria by various means. The financial police carry out inspections and review work permits, work visas and residence permits and monitor compliance with the Austrian minimum salary and record-keeping requirements. The results gathered by the financial police can be used in an administrative criminal proceeding that is handled by the municipal authorities in the first instance.

It is possible to file appeals against decisions of administrative authorities. In the second instance, administrative courts decide. In certain cases, another appeal against decisions of administrative courts can be filed with the high administrative court or the high constitutional court in the third instance.

Government policy

In broad terms what is your government’s policy towards business immigration?

EU, EEA and Swiss nationals are granted freedom of movement for workers and services and are allowed to work in Austria without a work permit as long as they are locally hired by an Austrian entity. However, in the case of an assignment to Austria or in the case of personnel leasing (including intra-company transfers) certain declaration and document-keeping requirements apply to all EU, EEA and Swiss nationals.

Third-country nationals who want to pursue employment in – or who are assigned or leased to – Austria are required to apply for a work permit. This is also true for Croatian nationals, owing to the transition period of seven years after joining the EU on 1 July 2013.

As the previously applicable quota system under Austrian immigration law did not meet the needs of the labour market, a new criteria-led immigration system has entered into force with the amendment of the Austrian Alien Employment Act in 2011. This system enables persons who are qualified and willing to immigrate to Austria the possibility to gain access to the Austrian labour market and to be integrated into Austrian society based on clear and transparent criteria. This change occurred in the course of the implementation of a governmental programme (‘Work’ and ‘Migration and Integration’ chapters) and should permit the employment of highly qualified employees, skilled workers in jobs with shortages and other key employees from third countries. Since April 2013, the application procedure for the combined work and residence permit (settlement permits) has been simplified. Further, access to the labour market has been facilitated for reunited family members, foreign graduates of Austrian universities and foreign pupils and students.

In 2017, Austria implemented the Intra-Corporate Transferees Directive (Directive 2014/66/EU) (the ICT Directive). The ICT regime is an important relief for temporary transfers of managers, specialists and trainees to an Austrian group company.

Short-term transfers

Visas

In what circumstances is a visa necessary for short-term travellers? How are short-term visas obtained?

The law applies the term ‘short-term traveller’ to business travel for a period of up to six months. A visa and a work permit are necessary for third-country nationals (citizens who are not nationals of the EU, the EEA or Switzerland), who work abroad but who intend to visit Austria for short periods of time to transact business on their own (freelancer) or on their employer’s behalf.

In Austria, a distinction has to be drawn between business visitors and short-term travellers on assignments (secondment) in general.

While travellers on assignment to Austria usually need a work permit, a ‘business visitor’ can enter Austria without applying for a work permit or other declaration. However, business visitors can only carry out very short-term activities, such as business meetings and visits to trade fairs and conferences for a very short period of time. The interpretation of the term ‘short-term’ is still uncertain. General guidelines lead to the assumption that a stay of up to three days can be considered as short-term. Business meetings, trade fairs or conferences are usually scheduled for only a few days (or at maximum up to one week). The same applies to the demonstration of new technology in Austria by an assignee.

On the other hand, it is not considered a ‘short-term business visit’ if an assignee periodically carries out activities for a few days within a period of weeks or months or if the activities exceed the period of one week. In these cases, all third-country nationals need a business/work visa in combination with a work permit.

If a business/work visa is requested, the individuals must first obtain the respective certificates from the local labour office and then the individuals are required to obtain the business/work visa by filing an application to an Austrian consular office in the individual’s country of origin or legal residence.

Nationalities that are subject to increased scrutiny in granting a visa (background checks, visa pre-approval, longer than normal processing times, etc) are Afghanistan, Bangladesh, the Democratic Republic of the Congo, Eritrea, Ethiopia, Ghana, Iran, Iraq, Nigeria, Pakistan, Somalia, Sri Lanka and Syria.

Restrictions

What are the main restrictions on a business visitor?

The general business meeting exemption applies only to very short activities of up to three days (maximum up to one week) and is limited to activities that cannot be carried out by local employees in Austria. Hence, business visitors can only perform certain activities while in Austria without obtaining a work permit. Permissible activities as a business visitor (without obtaining a work permit) are attending meetings, interviews and conferences, conducting site visits and other urgent ‘task force’ activities (regarding the process, see question 5). However, the law does not provide an exhaustive list.

Therefore, if the scope of the stay exceeds the period of one week, the foreign employee does not qualify as a business visitor any longer, but qualifies as an assigned worker. In such a case, the employee needs a work visa C issued for a period of up to 90 days or a work visa D issued for a period of not less than 91 days and not more than six months.

Individuals receiving their salary from an Austrian entity cannot be qualified as business visitors or employees on assignment as long as they do not qualify as freelancers (self-employed persons). Business visitors can be reimbursed for expenses related to their travel to Austria and accommodation in Austria.

Business visitors and short-term assignees shall, irrespective of the law applicable to the employment relationship, be automatically entitled to at least the remuneration determined by law, ordinance or collective bargaining agreement to which comparable Austrian employees are employed by comparable Austrian employers. The foreign employer thus has to pay the assignee the minimum salary (including the pro rata holiday and Christmas remuneration) in conformity with Austrian wage and working conditions during the assignment.

Further, any employer established in a foreign country must keep readily available the necessary documents to prove the remuneration payable and received by the employee (that must be compliant with the relevant mandatory provisions of Austrian law). These documents must be kept in the German language at the working place in Austria during the assignment period. In addition to the employment agreement (assignment agreement) and the statement of terms and conditions required by law, the required pay documents shall include records of hours worked, pay records or evidence of the employer having paid out the remuneration (eg, remittance receipts issued by a bank).

EU, EEA and Swiss nationals on an assignment have to file a declaration to the Austrian authorities prior to the start of the assignment. Alongside the obligation to keep a copy of the filed declaration, the employer has to keep the documents about the registration of the assignee with the home country’s social insurance (social insurance document A1) if the assignee is not subject to compulsory social insurance in Austria.

Short-term training

Is work authorisation or immigration permission needed to give or receive short-term training?

EU, EEA and Swiss nationals do not need immigration permission to receive short-term training. However, Croatian nationals need a training permit to receive training in Austria. In any case, a trainer needs to file a ZKO declaration (the online information filing system for employees of EU, EEA or Swiss-based companies who are assigned to work in Austria) with the Austrian authorities prior to the start of the assignment and keep the social insurance certificate and German language salary documents ready in case of an inspection by the authorities.

Third-country nationals need permission to receive short-term training or to act as a trainer, namely a training permit and, depending on the duration of the training, a business or work visa. A training permit is issued in the form of a declaration confirmation for volunteers, internships, training programmes or joint ventures and for the young-executive programme. It applies to the following:

• employees posted in the course of a joint venture cooperation for training purposes for no longer than six months;
• employees of an international group of companies posted to the Austrian headquarters on the basis of a qualified inter-company education programme for no longer than 50 weeks;
• foreign nationals seeking experience in the course of unpaid volunteer work; and
• foreign nationals studying at Austrian universities in the case of a compulsory internship pursuant to the degree programme.

These training or further educational measures involving third-country nationals and Croatian nationals must be notified no later than two weeks prior to the commencement by the owner of the domestic training facility or the headquarters to the responsible local labour authority with proof of the joint venture agreement and the training programme or further educational programme, in which objectives, measures and length of the training or education must be indicated. The regional office shall issue an acknowledgement confirmation within two weeks. The training or education may only commence after the acknowledgement confirmation has been issued. Certain trainings must also be notified to the competent Austrian fiscal authority at least two weeks prior to the start of the training.

After issuance of the training permit, the employee or trainee can apply for the respective visa at the Austrian consular office in his or her country of residence outside Austria. The visa will be issued based on the training permit as received from the local labour office. Some training programmes arranged between certain international universities are exempted from the notification requirements of the above-mentioned labour and fiscal authorities.

Further, the ICT regime facilitates assignments of third-country nationals to an Austrian group company. Third-country nationals who hold an ICT card of another EU member state can be assigned to an Austrian group company for a period of less than 90 days within a 180-day period. In this case, a ZKO declaration has to be filed with the Austrian authorities prior to the arrival of the trainee in Austria. The Labour Authority will then issue an EU-Secondment Declaration provided that all requirements for the assignment are fulfilled. In this case, no additional Austrian work visa is required.

Transit

Are transit visas required to travel through your country? How are these obtained? Are they only required for certain nationals?

If a third-country national travels from any non-Schengen country via Austria to another non-Schengen country and the third-country national is not visa-exempt under the visa-waiver programme, the third-country national must apply for a transit visa (visa B) only if he or she actually enters Austria by leaving the transit area of the airport (eg, an overnight stay at an airport hotel).

Nationals of the following countries need an airport transit visa for Austria even if they do not enter Austria by leaving the transit area (eg, in the event of an aircraft transfer at the Austrian airport): Afghanistan, Bangladesh, the Democratic Republic of the Congo, Eritrea, Ethiopia, Ghana, Iran, Iraq, Nigeria, Pakistan, Somalia, Sri Lanka and Syria. If these nationals are holding valid residence permits of some specific other countries (such as Japan or the United States), they do not need to apply for a transit visa.

Visa waivers and fast-track entry

Are any visa waiver or fast-track entry programmes available?

Austria is part of the Schengen area and a member state of the European Union. As such, visa waiver agreements with several other countries apply. A visa waiver does not, however, automatically mean that work permit and working visa requirements are also waived.

There are no general fast-track entry programmes available in Austria. Processing times vary depending on the type of permit applied for.

Long-term transfers

Categories

What are the main work and business permit categories used by companies to transfer skilled staff?

In Austria, a distinction has to be drawn between people – EU, EEA, Swiss nationals or third-country nationals – who relocate to Austria to be hired locally (settlement permits), who come to Austria while remaining on a foreign payroll (residence permits, secondments) or who are assigned to Austria based on a staffing agreement.

EU, EEA and Swiss nationals

Nationals of the following countries do not need a work and residence permit in the case of local hire: Belgium, Bulgaria, Cyprus, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, the Netherlands, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, Switzerland and the United Kingdom.

However, if these nationals are assigned (based on either a secondment or a staffing agreement) to Austria, in most circumstances a ZKO declaration has to be filed prior to the commencement of the assignment. Although no residence permit is required, certain registration requirements apply.

Nationals of Croatia need a work permit in the case of local hire. Nationals of Croatia and third-country nationals who are employed with an employer with its seat in the EEA, EU or Switzerland, must file a ZKO declaration if they are assigned to Austria. Subsequently, the local labour authorities will issue a work permit within two weeks. The assignment may start prior to the issuance of the work permit, as long as the ZKO declaration has been filed on time and the EU social security certificate (A1 form) has already been issued. A residence permit is not needed; however, registration requirements apply within certain deadlines.

Third-country nationals

For third-country nationals who are to be locally hired in Austria, the following residence permits apply.

Settlement permit – ‘Red-White-Red Card’

This permit serves as a combined work and residence permit and is issued for an initial period of 24 months. The permit applies to the following four categories of workers:

• very highly qualified workers;
• skilled workers in shortage occupations;
• other key workers; and
• graduates of universities and colleges of higher education in Austria.

The Red-White-Red Card is extendable and when extended, a settlement permit Red-White-Red Card Plus will be issued. Applicants for a Red-White-Red Card are allowed to bring their family members to Austria, if dependants meet certain German language skill requirements or if they have undertaken a high school education, which issues qualifications to enter university. The essential requirements for getting a Red-White-Red Card are qualification, work experience, age, language skills, job offer according to the pre-qualifications and meeting minimum monthly salary requirements (at least €2,610 for employees under the age of 30 and €3,132 for employees aged 30 and above; these figures apply for 2019 and are subject to an annual review; currently, there are considerations to reduce these minimum salaries to make the Austrian labour market more attractive).

Settlement permit – EU Blue Card

This permit serves as a combined work and residence permit and is issued for an initial period of up to 24 months. The EU Blue Card is also extendable and, in such case, a Red-White-Red Card Plus will be issued. Applicants for an EU Blue Card are allowed to bring their family members to Austria, who have to fulfil certain German language skill requirements only after an initial period of two years of stay in Austria. The essential requirements for getting an EU Blue Card are qualification, job offer according to the pre-qualifications and meeting minimum monthly salary requirements (€4,447; this figure applies for 2019 and is subject to an annual review).

Settlement permit – Red-White-Red Card Plus

This permit is issued to workers holding a Red-White-Red Card or EU Blue Card and for workers holding other long-term settlement permits, after a certain minimum duration of the initial work and residence permit. It is also issued to dependants of workers who qualify for a Red-White-Red Card or EU Blue Card. The Red-White-Red Card Plus grants unlimited labour market access.

Residence permits for third-country nationals also apply to the following:

• special cases of employment (eg, special executives of internationally active companies whose monthly gross salary amounts to at least €6,264 (this figure applies for 2019 and is subject to an increase in 2020));
• certain scientists and other employees who do not need a work permit pursuant to the Alien Employment Act;
• self-employed workers (eg, freelancers and start-up founders); and
• researchers.

Austria implemented the ICT Directive in late 2017. The Austrian ICT system created two new residence and work permits for managers, specialists and trainees who are employed with a third-country employer and are assigned to an Austrian group company.

The ICT Card

This is a combined residence and work permit and is issued by the Austrian authorities within approximately eight weeks of the filing of the application. It can only be obtained by managers, specialists or trainees who have been employed with a third-country employer for at least six months (for trainees) or nine months (for managers and specialists) and are assigned to an Austrian group company for more than 90 days and up to one year (trainees) or three years (managers and specialists). The assigned candidate is allowed to work for client projects of the Austrian group company.

The Mobile ICT Card

This is also a combined residence and work permit that is issued by the Austrian authorities. It can only be obtained by managers, specialists or trainees who have been assigned by a third-country employer to a group company in the EU under the ICT regime and, therefore, already hold an ICT Card that was issued by another EU member state. Holders of ICT Cards of another EU member state who are subsequently assigned to an Austrian group company for more than 90 days can obtain this permit. As the candidate already went through the application process in another EU member state, the process in Austria is accelerated: the assignee will receive the Mobile ICT residence and work permit within eight weeks of filing the application according to the Austrian rules. However, he or she is allowed to start to work in Austria 20 days after the complete application is filed. Like the ICT Card, the Mobile ICT Card also entitles the assignee to work for client projects of the Austrian group company.

Further, there is a separate process for holders of an ICT card of another EU member state who are assigned to Austria for a period of up to 90 days within a 180-day period: in this case, a ZKO declaration has to be filed with the Austrian authorities prior to the arrival of the candidate in Austria. The Labour Authority will then issue an EU-Secondment Declaration provided that all requirements for the assignment are fulfilled. In this case, no additional Austrian work visa is required.

For third-country nationals who are assigned or leased to Austria (secondment) and do not fall under the ICT regime, the residence permit – assignee applies: this permit is available for third-country nationals who intend to stay temporarily for more than six months on an assignment in Austria. These candidates will not be allowed to bring their family members to Austria under the family reunion category for a period exceeding six months. A family reunion permit is not available for family members of employees on assignment if they do not fall under the ICT categories or are students, pupils, social workers or self-employed persons.

For third-country nationals who are assigned to Austria based on a staffing agreement (leased employees), a special staffing permit has to be obtained from the local trade authority in addition to the residence and work permits. This scenario may also apply to intra-company transfers under certain circumstances.

Special rules apply to Turkish nationals under the EU Accession Treaty.

Procedures

What are the procedures for obtaining these permissions? At what stage can work begin?

All kinds of residence permits (settlement permits or residence permits), valid for a period of stay longer than six months, have to be applied for by individuals in their respective home country at the consular office after they have received the respective binding job offer from the Austrian employer (local hire) or the respective ‘guarantee certificate’ – a precondition to receiving a work permit (assignment). Most consulates require an appointment booked via a service provider or the embassy prior to filing. Such an appointment for the filing may not be immediately available. Red-White-Red Cards can also be applied for by the Austrian employer at the respective competent immigration authority. Further, this simplified application procedure is also possible for the application of an EU Blue Card. Regarding intra-company transfer (ICT) permits, the application can either be filed by the assignee in his or her home country or by the Austrian group company on behalf of the assignee in Austria. The benefit of the employer being able to file the application has not been extended to the filing of residence permit applications for dependants.

The consular office forwards the documents to the Austrian immigration authority in the region of the intended place of residence of the individual after arrival. Subsequently, the documents are forwarded to the local labour office for the execution of a labour market test. Where there is a positive result, the Austrian immigration authority approves the permit and notifies the employee accordingly. Visa-exempted nationals are entitled to travel directly to Austria and will receive the combined work and residence permit after fingerprints have been taken. Third-country nationals who have applied for a residence permit will receive an ‘entry and collection visa’ to enter Austria.

Only settlement permits (including ICT permits) serve as combined work and residence permissions. If a residence permit has been filed, the assignee has to apply for a work permit after collection of the residence permit before he or she can start working. Issuance of the work permit may take five to eight days.

During the application process, neither assigned nor locally hired persons are allowed to work as long as no other work permit or work visa/residence permit has been issued for this time period. The applicants can begin working as soon as all requested permits are issued and handed over to the applicant.

Period of stay

What are the general maximum (and minimum) periods of stay granted under the main categories for company transfers?

The minimum period of stay is six months. The maximum period for the Red-White-Red Card and the EU Blue Card is 24 months and upon expiry can be extended accordingly. After a stay of two years (for local hires only), the permit can be issued for a period of three years where the employee has fulfilled the language requirement at an A2 level or is exempted from the language requirement, provided his or her passport has an appropriate duration. After a period of five years, a long-term residence permit can be issued under certain circumstances:

• permanent residence – EU settlement permit and settlement permit permanent residence – family member, which have a validity of five years; and
• residence card, which has a validity of five years.

The ICT permits have a minimum validity of three months and maximum validity of three years for intra-company transferred managers and specialists. For intra-company transferred trainees, the ICT permits have a maximum validity of up to one year. After this maximum period of stay, the assignee must leave the EU for at least four months before applying for a new ICT permit.

Special rules apply to Turkish nationals under the EU Accession Treaty.

Processing time

How long does it typically take to process the main categories?

The processing time varies from immigration office to immigration office. In general, issuance of a settlement permit or residence permit in combination with a work permit requires a period of eight to 16 weeks calculated from the day the respective application is filed either at the Austrian immigration authority or at the respective consular office abroad. This timeline does not include the time required to prepare the application up to the point of submission. There is no priority service available.

Staff benefits

Is it necessary to obtain any benefits or facilities for staff to secure a work permit?

Assigned employees must have suitable health insurance cover of at least €30,000 during the immigration process. There is a risk that social insurance also has to be activated in Austria where there is no social insurance waiver agreement between Austria and the home country (social insurance waiver agreements are in place with the following countries: EEA member states, Albania, Australia, Bosnia, Canada, Chile, India, Israel, Korea, Kosovo, Macedonia, Montenegro, Moldova, the Philippines, Serbia, Switzerland, Tunisia, Turkey, Uruguay and the United States). In addition, the assigned workers must receive a monthly salary that is in accordance with the minimum salary requirements provided under the Austrian collective bargaining agreement. Further, assigned employees have to provide evidence of suitable accommodation.

In the event of local hires, no health insurance has to be submitted since the compulsory health insurance has to be activated only prior to the commencement of work, but employees have to submit a suitable entitlement for accommodation, valid for the entire period of stay. In the case of issuance of an EU Blue Card only, no suitable entitlement for accommodation has to be submitted as it is sufficient to indicate the intended residence address.

Assessment criteria

Do the immigration authorities follow objective criteria, or do they exercise discretion according to subjective criteria?

For the most commonly used immigration categories, Red-White-Red Card, EU Blue Card and ICT Card, the authority follows objective criteria since all applications are evaluated based on a transparent and objective evaluation system and no discretion is permitted.

However, there is room for flexibility for some applications, such as permits for self-employed workers and special cases of employment. Those require special survey reports, which make a respective application complex in nature.

High net worth individuals and investors

Is there a special route for high net worth individuals or investors?

Investors can apply for a Red-White-Red Card as self-employed persons or as start-up founders. The investor category is designed for high net worth individuals intending to make a substantial financial investment in Austria. The minimum threshold for such substantial financial investments or valuable contributions to the economy amounts to €100,000. The Red-White-Red Card for start-up founders requires, among other things, the transfer of share capital of at least €50,000.

Is there a special route (including fast track) for high net worth individuals for a residence permission route into your jurisdiction?

See question 16. Individuals undertaking a notable investment may also receive Austrian citizenship (citizenship by investment programme). However, this route is entirely dependent on the discretion of the Ministry of Internal Affairs and is evaluated and only granted after a deep analysis of the effected – not only the planned – investment.

These types of permits can be obtained only after an exhaustive process and in-depth analysis of the investments into the Austrian economy and the benefits of such investments for the Austrian economy.

Highly skilled individuals

Is there a special route for highly skilled individuals?

There is a special route for highly skilled individuals. They can apply for a job-seeker visa (with a validity of 180 days) in their country of residence. They have to submit all their diplomas and qualifications, which are scrutinised according to a points system. A job-seeker visa enables them to travel to Austria and to search for a job. As soon as they find a job they can exchange the visa for a Red-White-Red Card. If the candidate reaches the respective amount of credits (points), the authorities will grant the permit. Candidates who have already found a job while still residing in their home country can directly apply for a Red-White-Red Card.

Ancestry and descent

Is there a special route for foreign nationals based on ancestry or descent?

Ancestry or descent can be relevant for Austrian citizenship proceedings (Austrian citizenship by descent).

Minimum salary

Is there a minimum salary requirement for the main categories for company transfers?

Employees, whether locally hired or on assignment, must earn at least the minimum salary according to the applicable collective bargaining agreement, including (pro rata) holiday and Christmas remuneration (13th and 14th salary). Therefore, the minimum salary requirement cannot be provided in general as it depends on the scope of business of the company involved. The minimum salaries are fixed by collective bargaining agreements and depend on two factors: the job or duty to be performed and length of service.

Resident labour market test

Is there a quota system or resident labour market test?

In Austria, there is a labour market test carried out regarding the application of specific permits for locally hired people, such as the Red-White-Red Card for key employees or the EU Blue Card. The same applies to ICT Cards. Employers must demonstrate that they have been unable to fill the vacancy with a suitable settled worker. To prove this, the labour market authority advertises the role for a period of 14 days.

The quota system is applicable for the settlement permit without employment, assignment permits, permits for dependants joining the principal during the stay in Austria and permits to work as a seasonal worker.

Shortage occupations

Is there a special route for shortage occupations?

Professionals who want to work in certain industries with shortages in Austria can apply for a Red-White-Red Card for skilled workers in scarce occupations. The Labour Ministry publishes a list that defines the current shortage occupations on an annual basis. These include, for example, welders, electricity engineers and qualified nurses. The benefit of this Red-White-Red Card is that there is no labour market test and that the minimum salary is calculated only on the basis of the applicable collective bargaining agreement and is not related to the figures described in question 10.

Applicants must achieve at least 55 out of 90 points to receive the Red-White-Red Card for scarce occupations. Points are granted for professional qualifications, work experience, age and language skills. Applicants must prove their qualifications for a shortage occupation and have a binding job offer in Austria to apply successfully for a Red-White-Red Card.

Other eligibility requirements

Are there any other main eligibility requirements to qualify for work permission in your jurisdiction?

In the case of the Red-White-Red Card settlement permit, the candidate must reach the respective amount of credits (points) as required by Austrian immigration law, which are based on his or her specific job qualification and education, previous work experience, knowledge of the German or English language, age and whether he or she has completed any university studies in Austria.

Third-party contractors

What is the process for third-party contractors to obtain work permission?

Third-party contractors can obtain the respective permits in two ways. The general way is where the Austrian business or project partner acts as sponsor and, in this case, the permits are issued in its name. The business partner and employer of the employee can also apply for the permits to be issued in its name as a foreign company.

There is no need to enter into a local employment agreement with an Austrian sponsor, where there is one, as the employee continues to be employed by the foreign contractor.

In the case of a self-employed contractor, the individual must apply for a combined work and residence permit as a freelancer.

It must be taken into consideration that the authorities verify in detail whether the foreign employer is the holder of the contract or whether the employees seconded by the foreign employer to Austria qualify as leasing of personnel for the benefit of an Austrian company.

Recognition of foreign qualifications

Is an equivalency assessment or recognition of skills and qualifications required to obtain immigration permission?

In all processes, regardless of whether it is an assignment or a local hire process, the individuals must show that they have suitable qualifications and skills. Academic qualifications are requested for almost all categories of permits. Further, it is necessary that the applicant’s diplomas were achieved at academic institutions that are recognised as such in Austria. At present, these qualification assessments are based on the information obtained from a university assessment website (http://anabin.kmk.org/) and in some cases (especially for residence permits of dependants), a special European Network of Information Centres in the European Region – National Academic Recognition Information Centres in the European Union (ENIC-NARIC) confirmation is required. However, it has not been ruled out that the immigration authority may require confirmation issued by the Ministry of Education. Medical requirements are only necessary in regard to visa applications of nationals of specific countries. Self-employed persons who want to start a business in Austria have to additionally prove they have sufficient funds to establish a successful business.

Extensions and variations

Short-term to long-term status

Can a short-term visa be converted in-country into longer-term authorisations? If so, what is the process?

Short-term visas cannot be converted into longer-term authorisations as long as no separate long-term application has been filed independently. The application for the issuance of the long-term permits must be commenced and carried out under the general rules.

The only exception to this rule is the job-seeker visa for highly qualified employees (see question 18).

Long-term extension

Can long-term immigration permission be extended?

A settlement permit and residence permit can be extended before their expiry. There are no restrictions on the number of extensions. However, after a certain duration of stay in Austria, compliance with German language requirements may apply.

After a period of five years, settlement permits can be issued with a validity of five years if the requirements (including German language skill requirements) are met; the years of residence of a settlement permit holder are counted as full years and the years of residence of a temporary residence permit holder are counted as half years.

ICT permits are not extendable after a period of three years for managers and specialists and after a period of one year for trainees. After the maximum period of stay, the assignee has to leave the EU for at least four months before applying for a new ICT permit for the territory of Austria.

Exit and re-entry

What are the rules on and implications of exit and re-entry for work permits?

As a general rule, individuals are able to exit and re-enter Austria during the validity of their visa, provided that they have a multiple entry visa or a long-term residence permit. However, where settlement in Austria is intended, an individual’s absences may have a negative impact on his or her renewals after a certain period of absence.

Individuals holding a valid work permit must be aware that when the employment relationship is terminated, the labour market authority has to be notified within three days. Hence, in the event that those individuals intend to continue their employment relationship at a later stage, a new work permit must be applied for since the former permit will no longer be valid.

Permanent residency and citizenship

How can immigrants qualify for permanent residency or citizenship?

Immigrants can apply for permanent residence only after a consecutive period of five years, provided that the individuals have obtained a German language level of at least B1. The respective residence permit will be issued for a period of five years and has to be extended at its expiry.

Generally, individuals have the right to apply for Austrian citizenship if they have been residing in Austria for a period of 30 years and if they meet certain general requirements (eg, clean police records and citizenship exams). If they can prove established personal and professional integration into Austrian society and sufficient German language skills (level B2), they can apply after a period of legal stay in Austria of six years. Further, individuals who are married to an Austrian citizen can apply for citizenship after six years of permanent residence. Equally, EEA citizens, individuals who are born in Austria or who have achieved extraordinary cultural, scientific, economic, artistic or athletic accomplishments in the interests of Austria, can apply for citizenship after six years of permanent residence.

End of employment

Must immigration permission be cancelled at the end of employment in your jurisdiction?

All work and residence permits that are issued for a specific company must be cancelled in the event the employee terminates his or her employment or when he or she returns to his or her home country (assignments or secondments). Settlement permits and residence permits have to be returned to the immigration authority.

When some of the fundamental requirements requested for the issuance of a work permit change, such as the position of the employee, the business premises of the company, the employer or the location of employment, a new work permit has to be applied for accordingly.

Employee restrictions

Are there any specific restrictions on a holder of employment permission?

Generally, individuals who hold an EU Blue Card, a Red-White-Red Card or a work permit are only allowed to work for the employer who sponsored the application. Employees who are assigned to Austria under the ICT regime are allowed to work for the Austrian group company and can also work on client projects of the Austrian group company. A promotion is not an obstacle to the validity of the existing permit. Only if a candidate starts to earn less or if he or she changes employer, will he or she have to apply for a new permit.

However, the holder of a Red-White-Red Card Plus or of a permanent residence permit – EU is able to work for any employer, without asking for any further permission.

Dependants

Eligibility

Who qualifies as a dependant?

Dependants are the spouse or children under the age of 18, including adopted and stepchildren. The term ‘spouse’ refers to opposite-sex marriages and same-sex registered partnerships, and they must be at least 21 years old. Cohabitation partners do not qualify as dependants (exemptions apply to EU nationals).

Conditions and restrictions

Are dependants automatically allowed to work or attend school?

All dependants of principals holding a Red-White-Red Card or an EU Blue Card can apply for a family reunion permit, which will be granted in the form of a Red-White-Red Card Plus; in particular, in the case of family reunion applications for Red-White-Red Card holders, it must be taken into consideration that dependants may be required to obtain a German language certificate at level A1 before they can file the family reunion application. Such a permit allows the family member to work for any employer in Austria.

For dependants of ICT permit holders, a family reunion is also possible. The dependants can receive a residence permit. If a dependant has a job offer at the time the ICT permit application is filed, the ICT permit will also serve as a work permit for that specific employer. In the case of an assignee who does not fall under the ICT regime, family reunion is not possible.

Children are obliged by law to attend school in Austria from the age of six until the age of 15. Hence, for children within this age bracket, it is compulsory to attend school while in Austria. Any school can be attended with a residence or a settlement permit.

Access to social benefits

What social benefits are dependants entitled to?

Dependants generally have to prove that the applicant provides for their needs during their stay in Austria. In addition, they must show that they will not rely on public funds.

Once settled in Austria, foreign families are entitled to receive family and child allowances. In the case of unemployment, foreign nationals are also entitled to receive unemployment benefits.

Other requirements, restrictions and penalties

Criminal convictions

Are prior criminal convictions a barrier to obtaining immigration permission?

For all long-term processes (all residence permits valid for more than six months), the applicants have to submit a criminal clearance certificate, which must not be older than three months. Where there are criminal convictions, the Austrian immigration authorities may reject issuance of the permits.

Penalties for non-compliance

What are the penalties for companies and individuals for non-compliance with immigration law? How are these applied in practice?

Employers are responsible for allowing access to their premises only to employees (whether locally hired or on assignment) holding valid work permits. There are sanctions for work permit-related violations, violations concerning keeping certain documents on display or not complying with the minimum salary requirements, that range between €1,000 and €80,000 (per case), depending on the number of foreign nationals illegally employed and the recurrence of illegal employment. With regard to document record-keeping requirements, additional financial penalties of up to €70,000 (per case) may be applied. Financial penalties may be imposed on every single managing director of the sending or receiving entity.

Further consequences of non-compliance with immigration rules are that certain violations will be registered in a central register; if an employer has been penalised three times within two years for the illegal employment of foreign nationals, he or she can be prohibited from employing new foreign nationals for a period of up to one year and an employer’s trade licence may be revoked for the recurring illegal employment of foreign nationals.

Penalties have been increased in recent years. The authorities strictly monitor compliance with labour and immigration law and impose penalties in the case of violations without hesitation.

Language requirements

Are there any minimum language requirements for migrants?

In general, all individuals applying for settlement permits have to comply with the integration agreement. Within two years of the issuance of the first permit, immigrants have to present a German language certificate proving they have attained level A2. Dependants of these applicants have to present a German language certificate at the time of the first application proving they have attained level A1. This requirement can be waived where the dependant has completed a high school education qualifying him or her to attend university. The dependants of individuals applying for an EU Blue Card do not need to present a German language certificate upon the first application.

After five years, the integration agreement regarding German language skills has to be fulfilled for all residence permits proving the German language level B1 has been attained.

Medical screening

Is medical screening required to obtain immigration permission?

Generally, there is no requirement to pass any medical examinations, except in the case of a visa application from some nationalities. Austrian immigration authorities are, however, entitled to request medical examinations after a long-term residence permit has been obtained.

Secondment

Is there a specific procedure for employees on secondment to a client site in your jurisdiction?

Secondments to a client site either qualify as a mere assignment or staffing (leasing of personnel). It will be considered staffing (leasing of personnel) if the assigned employee is to only follow the instructions of the Austrian client, will report mainly to the Austrian client and will be fully integrated in the premises of the Austrian client.

In the event of an assignment, the employee has to apply for a guarantee certificate (a precondition to receiving a work permit), the respective visa or residence permit and the final work permit. If staffing is applicable, the Austrian client has to additionally apply for a staffing permit for the employee.

In the case of an EU country, an EEA country or Switzerland, only declarative requirements apply (see question 10).

Assignees who work in Austria with an ICT permit are allowed to work at the client’s premises, which is a significant relief for intra-company assignments.

Update and trends

Key developments of the past year

Are there any emerging trends or hot topics in corporate immigration regulation in your jurisdiction?

Key developments of the past year40 Are there any emerging trends or hot topics in corporate immigration regulation in your jurisdiction?

Violations of Austrian immigration rules are currently subject to dramatically high penalties. The Austrian penalty system with regard to intra-EU postings has been challenged with the ECJ. A decision of the ECJ will be taken in September 2019.