Employer

A work permit can sometimes be preferable to a declaration from the employer


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A non-EU / EEA / Swiss citizen can use different immigration routes to enter, work and stay legally in Poland. Depending on the scenario chosen, the period between recruitment and the start of work in Poland can vary considerably. Depending on the path chosen, different options to legalize work and stay in Poland are available for non-Polish citizens after arriving in Poland.

In this article we discuss the case of a non-Polish citizen currently living abroad without access to the Polish labor market, who therefore needs to obtain a work permit. In this situation, it is generally recommended that the employer apply for the work permit which will serve as the basis for the visa application in the country of origin of the non-Polish citizen (unless he is eligible for travel without Visa).

In the case of Ukrainian, Russian, Belarusian, Moldovan, Georgian and Armenian citizens, the work permit can be replaced by a declaration from the employer confirming the employer’s intention to employ such non-Polish nationals (which, however, does not apply to seasonal work).

Most people think the “reporting route” is faster, and therefore better, which is not always the case. Sometimes the “work permit route” is better for the employee and the employer.

Usually a faster route

Most often, both parties to the employment relationship want the non-Polish citizen to start working as soon as possible. The legal deadline for registering the employer’s declaration is seven days after it is filed by the future employer, provided that the file does not require prior investigation. Experience shows that the deadline is not always met, however, the delays (if any) are not very long.

In most cases, employers manage to register their declaration faster than a work permit is issued. Obtaining a work permit can take from several weeks to several months. The “declaration process” does not require a prior labor market test, which is sometimes necessary when applying for a work permit, and which further lengthens the work permit procedure by several weeks.

The employer’s declaration covers a maximum period of six months (including 180 days) during the following 12-month period, with the periods of work performed for all employers under the employer’s declaration being summarized. Therefore, if a non-Polish citizen has recently worked in Poland on the basis of the employer’s declaration and has used the 180-day limit during the following 12-month period, the “declaration route” will be temporarily unavailable. (or accessible to a limited number of people). measurement, if this person has used only part of the 180 days available). These problems do not arise in the case of the work permit, which can as a rule be issued for a period of up to three years, regardless of whether the non-Polish citizen has previously worked in Poland for this or another employer.

Temporary solution…

After entering Poland, non-Polish citizens who wish to legalize their work (beyond the period covered by the employer’s declaration) and stay (beyond the period covered by the visa or authorization to visa-free travel), generally request a temporary stay and work permit (a consolidated permit). The waiting period in this case, however, ranges from several months to over a year. At this point, in all likelihood, this non-Polish citizen would have used all working days as part of the employer’s declaration procedure, or all stay days under the visa-free travel scheme.

… legalization of the stay ….

Fortunately, the legislator has provided for a transitional solution. If a non-Polish citizen applies for a temporary residence permit during his legal stay in Poland, assuming that the application does not have any defect in form, or that these defects in form have been corrected in due time and the procedure has not been suspended at the request of the party, his stay in Poland during the waiting period for the decision is considered legal, even if all his visa days or days available under the visa waiver regime have been used up. Please note that during this transition period (after using the visa or visa-free regime), the right only applies to stay in Poland. If the non-Polish citizen leaves Poland and wishes to return to Poland or enter any other Schengen state, they will likely have to get a new visa or wait for their visa-free travel rights to be “restored”.

… and other works

Regarding the continuation of work for the employer (after using the days available under the employer’s declaration), it is possible to continue working while awaiting the consolidated permit. However, the working conditions cannot be worse than those specified in the employer’s declaration, in accordance with article 88za of the law of April 20, 2004 on the promotion of employment and labor market institutions ( consolidated text Journal of Laws of 2021, Article 1100, as amended; hereinafter: the Law on Promotion), provided that:

  • the non-Polish citizen has been employed by the employer on the basis of the declaration of the registered employer for a period of at least three months,
  • the application for continued employment with this employer was submitted before the date of completion of the work indicated in the declaration,
  • the request refers to the same position within the framework of the employment contract and does not contain any defect in form or the defects in form have been corrected in due time (and the proceedings were not suspended at the request of the party).

Watch out for traps

The above conditions must be met jointly to work legally during the waiting period for the consolidated permit. Legislation and the adopted interpretation of legal provisions prevent some non-Polish citizens from following this option of labor legalization during their transition period. For example:

  • non-Polish citizens must have been previously employed for at least three months under an employment contract rather than a civil law contract,
  • non-Polish citizens must have worked under the employer’s declaration at least three months before applying for the consolidated permit; the submission of the application after, for example, seven days of employment does not meet this condition, even if the decision on the consolidated permit is made after the required period of employment of three months,
  • according to the position of the labor inspectorate, the three-month employment period does not include, inter alia, unjustified absences from work or unpaid leave (which contribute to the interruption of employment).

The three-month period should not be equated with 90 days, because in the case discussed, continuity must be respected. The period indicated in months ends on the date which corresponds to the first day of this period, and if there was no such date in the last month – the last day of that month.

Example

A non-Polish national started working on September 21, 2021, the three-month period of his employment ended on December 21, 2021. In the opinion of the National Labor Inspectorate, in this case, apply for a permit consolidated before December 22, 2021 not to legalize the continuation of work for the employer during the waiting period for the consolidated permit.

This creates particular problems for non-Polish citizens who wish to start their work in Poland on the basis of visa-free travel, which covers a pool of 90 days of stay in all Schengen states (including Poland) over the course of each 180 day period. period. Even if a non-Polish citizen had a total reserve of 90 days of stay, the limit may be missed – depending on the calendar arrangement – before the end of the three-month period of employment in Poland as described above .

Problems with the credit card [Polish: Niebieska Karta]

In some cases, non-Polish citizens have chosen to apply for a temporary residence permit, rather than the consolidated permit, to perform highly skilled jobs. The permit is called the blue card and can apply, for example, to computer scientists across the eastern border.

This route is more convenient than the consolidated permit, if a non-Polish citizen fulfills the conditions for obtaining a blue card. The Blue Card makes it easier for families of non-Polish citizens to join them in Poland and offers non-Polish citizens greater possibilities to change employers or obtain a long-term residence permit.

In this case, if a non-Polish citizen works on the basis of the employer’s declaration, the application for a blue card does not legalize his work during the waiting period for the blue card after the working days covered by the employer statement were used. Therefore, if the applicant does not obtain the blue card before all the days covered by the employer’s declaration have been used up, his employment will henceforth be illegal. This omission must be viewed as a legislative error, or at least a reckless interpretation of the provision.

Sometimes the work permit is better

If a non-Polish citizen on his “declaration route” encounters the aforementioned problems of legalizing his work during the waiting period for the temporary residence permit (for example due to his intention to apply for the blue card), it is worth the worth considering obtaining a work permit instead of a declaration from the employer.

Although obtaining a work permit may take longer than the employer’s declaration procedure (and the non-Polish citizen therefore starts working in Poland at a later date), the “permit route “does not generate the problems as in the case of a request for a single permit or a blue card.

By virtue of art. 88g (1a) and (1b) of the Promotion Act, if a non-Polish citizen who is employed on the basis of the work permit applies for a consolidated permit or a blue card to continue working with the same employer, and in the same position as the one he held under the work permit, and the application does not contain any formal deficiencies or the deficiencies have been corrected in a timely manner, his subsequent work is considered legal. Unlike the “declaration route”, this provision does not require applicants to have previously worked for three months before applying and also applies to blue card applications.

Working conditions

Non-Polish citizens must work in accordance with the working conditions specified in the employer’s declaration, permit or any other document that serves as a basis for employment, otherwise the employment is illegal. Not everyone remembers that in the case of the “declaration route”, the declaration specifies the conditions of employment in more detail than the work authorization. For example, the declaration specifies the place of work of the non-Polish citizen, unlike the work permit (although there is an appropriate section in the application form).

According to some interpretations, if the workplace is changed or if the non-Polish citizen at the request of the employer agrees to switch to telework on a daily basis rather than occasionally under the provisions introduced in the context of the COVID-19 pandemic where special rules apply, such modification is only allowed in the case of employment on the basis of the work permit. In the case of the “declaration route”, it is necessary to obtain a new document specifying the new workplace.

Therefore, before employers choose the “declaration route”, each individual case and situation of each non-Polish citizen should be taken into account. The processing of the employer’s declaration may be faster, however, it may not be the most beneficial for the non-Polish citizen and the employer.

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