Sunday, September 4, 2022

Poland Work Permit

 Foreign workers are required to have the proper visas and work permits in Poland, as established by immigration laws. Work permits must be secured for employees, and sponsored by a locally licensed and incorporated entity, which can be a problem for companies just entering the Polish market. Poland is known for typically being quite inflexible with its visa arrangements for foreigners, and visas will only be granted if no suitable Polish candidate can be sourced for a position. If you have yet to complete the incorporation process you can use an outsourced management company or GEO Employer of Record to sponsor the employee for the necessary permits.

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It is possible for companies that have established limited liability or joint-stock companies, or limited or limited joint-stock partnerships, to arrange visas for their workers. The relevant visa is Work Permit C, for foreigners who perform work in Poland for a foreign employer for a period exceeding 30 days, as long as the conditions of their employment align with the conditions stipulated within the Polish Labour Code. Permits are issued by the Province Governor. Work permits are valid for a maximum one year and are only valid if the applicant performs the work specified in the permit.

Non-EU residents must apply for a work permit if they wish to work in Poland. There are various exceptions, including:

Individuals with refugee status

Permanent residents of Poland

Beneficiaries of temporary or humanitarian protection from Poland

Victims of human trafficking

Individuals performing scientific research for at least 30 days per year

The steps to apply for a work permit in Poland are as follows:

Employer carries out labour market test

Employer begins application for foreigner’s work permit

Upon successful application, the Voivode will issue the work permit, at which point the applicant may begin undertaking employment

1. Labour market test carried out by employer

Employers must carry out a labour market test to acquire information about the circumstances surrounding employment in the local labour market. This test must confirm that there are no eligible Polish or EU nationals who could be employed in a given position.

The process is as follows:

1. Employers submit notification of vacancy to the County Labour Office.

2. The Labour Office then analyses the records of all unemployed people and job seekers

3. If the analysis determines that there are sufficient persons meeting the job requirements, the Labour Office will undertake its own recruitment amongst these individuals.

4. Remuneration proposed by the employer is compared to the remuneration that could be obtained in the same or similar position for similar work by the Labour office. These sums must be similar

5. The County Commissioner will issue the relevant decision.

6. If appropriate, the governor will issue the decision to the employer who is then able to apply for a work permit and temporary residence permit on behalf of the foreigner.

The labour market test does not need to be carried out in the following circumstances:

The work is included in the list of occupations which are in great demand – these are specified by the local Voivode

A work permit is being extended for the same foreigner for the same job

The foreigner is a citizen of a country bordering Poland or with which Poland works cooperatively on labour immigration, with the intention of working as a domestic worker or caregiver, OR performed work with the same entity for the last 3 months minimum with the intention of the job being entrusted to them

The foreigner is undertaking employment within a domestic household.

Fees: Varies based on the Voivodship

Time:

If nobody can be recruited from the Polish unemployed and job seekers, within 14 days

If recruitment amongst those registered with the Labour Office is possibly, within 21 days

2. Employer begins application form for foreigner’s work permit

Employees may only receive work permits provided the following conditions are satisfied:

The conditions of employment are equally, or more, favourable under the provisions of the Labour Code and other employment regulations

Remuneration is not lower than the average monthly wage by more than 30% – this information is provided by the Voivodship Office

Documentation proving the above are provided

The employer must submit a completed application form along with the following documents:

Up-to-date records of economic activity and an extract from the National Court Register to confirm the employer’s legal status

A company deed or company establishment notarial deeds, if the employer is a limited liability company or joint stock company respectively

Proof that the applicant has health insurance

Copies of the passport pages containing travel data for the applicant

A copy of a statement of profit or loss incurred by the employer

A copy of a contract pursuant to which a service is provided in Poland

Proof of payment of application fees

The relevant forms can be found at the website of the Department of Civil Affairs and Foreigners of Malopolska Regional Office.

3. Other obligations of the employer

Aside from completing the application form for the foreigner, the employer must also:

Inform the foreign about the steps required to issue a work permit and any other events which may affect this procedure

Exercise due diligence in the procedure for issuing and extending the validity of the work permit

Implement the conditions of the contract with the foreigner which are set forth in the work permit application. This contract must be in writing and if necessary, translated into a language which the applicant can comprehend before being signing

Inform the Voivode about the foreigner failing to undertake work within 3 months of the work permit commencement, or completion of work more than 3 months before its expiry, or any changes in the foreigner’s job duties

If employers do not comply with these duties and are found to be in breach, they must immediately rectify their mistake, otherwise risk penalties of between PLN 3,000 and PLN 5,000.

Time: The entire process generally 3-4 weeks for approval, but may extend to up to 8 weeks.

Please contact us for a quote.

Once the work permit is issued, one copy is retained by the Voivodship Office, and two are transferred to the employer, who is required to issue one copy to the foreigner.

4. Work permit is issued

The employee may commence work if a work permit is successfully issued.

A work permit is a document that entitles a foreigner to work legally in Poland, provided that the foreigner has a basis of residence enabling them to perform work in accordance with the regulations.

Note! A foreigner may not perform work in Poland, even if they have a valid work permit, if they are staying on the territory of the Republic of Poland on the basis of:

- a visa issued for the purpose of tourism, arrival for humanitarian reasons, due to the interest of the state or international obligations;

- a temporary residence permit granted due to circumstances requiring a short-term stay of a foreigner on the territory of Poland (Article 181 (1) of the Act on foreigners).

The permit specifies the entity entrusting the performance of work to the foreigner and the position or type of work to be performed by the foreigner. Therefore, work is considered legal only if the foreigner performs the work indicated in the permit. 

This means that if a foreigner is to perform work under other conditions than those specified in the permit (including a different position), the employer must obtain a new permit.

The permit is valid for the period for which it was issued. The expiry date of the permit is stated on the document.

A work permit is required in the case of taking up employment on the basis of both employment contracts and civil law contracts.

The entity entrusting the work (the employer) applies for a work permit for a foreigner.

The permit is issued by the voivode competent for the seat / place of residence of the employer.

We can distinguish the following types of work permits:

TYPE A - obtained in the case of a foreigner who will perform work in Poland on the basis of an agreement with an entity whose seat or place of residence, or a branch, plant or other form of organized activity is located in Poland.

TYPE B - is obtained in the case of a foreigner who will perform work consisting in performing a function in the management board of a legal person entered in the register of entrepreneurs or being a capital company in organization, or in connection with running the affairs of a limited partnership or limited joint-stock partnership as a general partner, or in connection with granting them a procuration for a total period exceeding 6 months in consecutive 12 months.

TYPE C - obtained in the case of a foreigner who will perform work for a foreign employer and will be posted to the territory of Poland for a period of more than 30 days in a calendar year to a branch or plant of a foreign entity or a related entity.

TYPE D - obtained in the case of a foreigner who will perform work for a foreign employer without a branch, establishment, or other form of organized activity on the territory of Poland and will be posted to the territory of Poland in order to provide a temporary and occasional service (export service).

TYPE E - obtained for a foreigner who will perform work for a foreign employer and is posted to the territory of Poland for a period of more than 30 days within consecutive 6 months for a purpose other than for the type B, C, D permits.

TYPE S - obtained for a foreigner who will perform work in the scope of activities specified in the Regulation of the Minister of Family, Labour and Social Policy of December 8, 2017. (i.e.  activities causally related to agriculture, forestry, hunting and fishing, or catering and accommodation).

An employer who employs a foreigner is obliged to:

- check, before the foreigner starts work, whether they have a valid residence permit,

- make a copy of the residence permit and keep this copy for the entire period of work by the foreigner,

- conclude a written contract with a foreigner under the terms of the work permit,

- present a translation into a language that the foreigner understands before signing the contract,

- provide the foreigner with one copy of the work permit in writing,

- inform the foreigner about activities undertaken in connection with the procedure for granting or extending a work permit and decisions on issuing, refusing to issue, or revoking a permit,

- if the foreigner does not start work within 3 months from the initial validity date of the work permit, stops to work for a period exceeding 3 months, ends work earlier than 3 months before the expiry of the work permit, the employer must inform the voivode within 7 days.

Note! An employer who employs a foreigner on the basis of a work permit has the same obligations towards them as towards a Polish citizen.

- reporting within 7 days from the date of commencement of work to social and health insurance and monthly and timely payment of contributions of an appropriate amount to the Social Insurance Institution (if required by the type of contract - primarily an employment contract and a mandate contract, it does not apply, for example, to a specific task contract),

- calculating, collecting, and paying advances for income tax (the method of tax settlement depends on the tax residence of the employed foreigner),

- compliance with the provisions of the Labour Code.

DECLARATION OF ENTRUSTING THE PERFORMANCE OF WORK TO A FOREIGNER

The declaration on entrusting the performance of work is entered into the register of declarations by the poviat labour office competent for the seat or place of permanent residence of the employer, if:

- the foreigner is a citizen of the country specified in the Regulation of the Minister of Labour and Social Policy on the countries to whose citizens certain provisions on the seasonal work permit and provisions on the declaration on entrusting work to a foreigner apply;

- the work of the foreigner is not related to the activity of the entity specified in the regulation of the Minister of Family, Labour and Social Policy of December 8, 2017 / provisions on seasonal work;

- the period of work specified in the submitted declaration on entrusting work to a foreigner and the periods of work performed on the basis of the declarations entered in the declaration register amount to a total of no longer than 6 months within the next 12 months, regardless of the number of entities entrusting the foreigner with work;

In matters that do not require explanatory proceedings, the poviat labour office enters the declaration on entrusting the performance of work to a foreigner in the declaration register or the starost refuses to enter the declaration in the declaration register no later than within 7 working days from the date of receipt of the declaration, and in cases requiring explanatory proceedings - no later than within 30 days from the date of receipt of the declaration.

Note! If the foreigner has been employed for a period of not less than 3 months on the basis of a declaration and the employer has submitted an application for a work permit for this foreigner at the same position under an employment contract before the end of the work date indicated in the declaration, and the application does not contain formal deficiencies or formal deficiencies have been corrected on time, the work of a foreigner on conditions not worse than those specified in the declaration entered in the declaration register is considered legal from the date of expiry of the declaration to the date of issuing a work permit or delivery of a negative decision in this matter.

The above also applies to a foreigner for a temporary residence permit (referred to in art. 114 par. 1 of the Act of 12 December 2013 on foreigners) in order to continue employment with a given employer. 

SEASONAL WORK PERMIT

The permit is obtained by an employer who intends to employ a foreigner for activities specified in the Regulation of the Minister of Family, Labour and Social Policy of December 8, 2017.A seasonal work permit is issued for a specified period, it may not exceed 9 months in a calendar year.

In the case of a foreigner who entered the territory of the Republic of Poland on the basis of a visa issued for the purpose of performing seasonal work or under the visa-free regime in connection with an application for a seasonal work permit entered in the register of applications, this period is counted from the date of the foreigner's first entry into the territory of the Schengen area countries in a given calendar year.

If the application for a seasonal work permit concerns a foreigner who stays on the territory of the Republic of Poland on a different basis which may be related to the right to work, the permit may be issued for the period of legal stay, but not longer than for a period of 9 months within a calendar year, calculated together with the periods specified in the previously issued seasonal work permits for the foreigner. 

A seasonal work permit is issued by the staroste competent for the seat or place of residence of the entity entrusting the performance of work to a foreigner.

The procedure for obtaining a work permit differs depending on whether the foreigner is in Poland or abroad.

If the foreigner is in Poland on a basis that can be related to the right to work, the employer submits an application for a seasonal work permit to the staroste competent for the seat or place of residence of the entity entrusting the work to the foreigner, and the staroste issues a decision within 7 days or up to 30 days if a clarification proceedings are required. 

If the foreigner is abroad and will apply for a visa issued for the purpose of performing seasonal work, or intends to enter the territory of the Republic of Poland under the visa-free regime, the employer shall submit an application to the staroste competent for the seat or place of residence of the entity entrusting the performance work for a foreigner, and the staroste enters the application in the register of applications for seasonal work and issues a certificate of entry of the application within 7 to 30 days. Then the employer submits the certificate to the foreigner, and the foreigner obtains a visa issued for the purpose of performing seasonal work or enters the territory of Poland under the visa-free regime in connection with the application for a seasonal work permit entered in the register of applications. A foreigner may start work on the day on which the employer presents to the competent staroste:

1) a copy of a valid document entitling the foreigner to stay on the territory of the Republic of Poland;

2) information about the foreigner's accommodation address during the stay on the territory of the Republic of Poland.

Extension of the permit

If a foreigner entered the territory of the Republic of Poland on the basis of a visa issued for the purpose of performing seasonal work or under the visa-free regime in connection with the application for a seasonal work permit entered in the register of seasonal work applications, the staroste may issue an extension of the seasonal work permit in order to continuation of seasonal work by a foreigner for the same entity entrusting work to a foreigner or for the purpose of performing seasonal work for another entity entrusting work to the foreigner.

If the foreigner stays on the territory of the Republic of Poland on the basis of a document other than a visa issued for the purpose of performing seasonal work or under the visa-free regime, without connection to the application entered in the register of applications for seasonal work, the staroste refuses to initiate proceedings to extend the seasonal work permit.

The extension of a seasonal work permit is issued for a period which, together with the period of stay of the foreigner for the purpose of performing seasonal work, counted from the date of the first entry into the territory of the Schengen area countries in a given calendar year, is not longer than 9 months in a calendar year.

A seasonal work permit is issued if:

1) the amount of remuneration that will be specified in the contract with the foreigner, shall not be lower than the remuneration of employees performing comparable work in the same amount of time or at a comparable position;

2) the entity entrusting the performance of work to the foreigner attached the information from the staroste about the inability to meet the employer's staffing needs based on the registers of the unemployed and job seekers or about a negative result of recruitment organized for the employer to the application for a seasonal work permit.

Information from the staroste is not required if:

  • During the 3 years preceding the submission of the application for a work permit, the foreigner graduated from a university based in Poland or another EEA country or the Swiss Confederation, or is a participant in doctoral studies conducted in Poland;
  • The foreigner has been legally residing on the territory of the Republic of Poland for 3 years preceding the submission of the application for a work permit and the stay has been uninterrupted;
  • The foreigner is a citizen of one of the following countries: Armenia, Belarus, Georgia, Moldova, Russia or Ukraine.

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