Business trip to Germany: Visa required?

With international business on the rise, business trips of employees from non-EU countries to Germany are becoming more and more relevant. When planning such a business trip, a number of questions arise: Does the employee need a visa? If so, which kind – and how does she obtain it?

No visa required for “privileged” citizens on a business trip

When planning the business trip of a foreign employee to Germany, employers should first seek to answer two key questions:

1. Is the foreign employee a “privileged” citizen?

In principle, every foreigner needs a visa or residence/work permit to enter and stay in Germany (sec. 4 para. 1 s. 1 Act on the Residence, Economic Activity and Integration of Foreigners in the Federal Territory – AufenthG). However, citizens of certain countries are legally privileged and therefore permitted to enter Germany and stay in Germany visa-free for limited periods of time. Therefore, citizens of

Albania, Andorra, Antigua and Barbuda, Argentina, Australia, The Bahamas, Barbados, Bosnia-Herzegovina, Brazil, Brunei Darussalam, Chile, Costa Rica, Dominica, El Salvador, Georgia, Grenada, Guatemala, Honduras, Israel, Japan, Canada, Kiribati, Colombia, the Republic of Korea, Macau, Malaysia, Marshall Islands, Mauritius, Macedonia, Mexico, Micronesia, Moldavia, Monaco, Montenegro, New Zealand, Nicaragua, Palau, Panama, Paraguay, Peru, Solomon Islands, Samoa, San Marino, Serbia, Seychelles, Singapore, St. Kitts and Nevis, St Lucia, St Vincent and Grenadines, Taiwan, East Timor, Tonga, Trinidad and Tobago, Tuvalu, Ukraine, Uruguay, Vanuatu, Venezuela, United Arab Emirates, USA ( 41 Residence Regulation – AufenthV – only available in German; Annex II to Regulation (EC) No 539/2001)

– as set out in the overview of the Federal Foreign Office on visa-free entry –

may enter Germany and stay in Germany visa-free for a period of up to 90 days (within a period of 180 days). Citizens of other countries must obtain a visa at the competent German Embassy or Consulate abroad to travel to Germany.

Brexit: If the current draft version of the Brexit Agreement is ratified, British citizens will continue to be able to enter, stay and work in Germany visa-free during the transitional period 30 March 2019 – 31 December 2020 (Art. 126, 127) (and this will apply vice versa for EU citizens in the UK). For the time after the transitional period, the draft agreement only provides regulations regarding the status of British citizens already living in the EU (and vice versa regarding EU citizens already living in the UK) (Art. 14-24). However, in the Memorandum of Understanding on the framework of future EU-UK relations (para. 52), it was announced that visa-free travel for short-term visits of British citizens to the EU (and EU citizens to the UK) was intended to continue.

2. Is it a business trip?

All foreigners, including privileged citizens, require a visa or combined residence/work permit (Aufenthaltstitel) to undertake employment in Germany. The visa or combined residence/work permit must explicitly allow them to undertake such employment (sec. 4 para. 3 and sec. 2 para. 2 AufenthG).

However, some activities are not considered employment under German immigration law. They can therefore be carried out without a visa or combined residence/work permit by privileged citizens during a visa-free stay. Business trips that take place up to 90 days within a period of 180 days are not considered employment (sec. 30 No. 1 and sec. 16 Foreigner Employment Regulation – BeschV – only available in German).

Therefore, if the foreign employee is a privileged citizen, she can go on a business trip to Germany without a visa or combined residence/work permit for up to 90 days within a period of 180 days.

Caution: Business trip or employment requiring a visa?

Caution is advised when assessing whether the employee’s activities constitute a business trip to Germany or employment in Germany. Under German immigration law (sec. 16 BeschV – only available in German), an activity is considered a business trip

• if the foreigner is employed abroad in the commercial/trading sector by an employer domiciled in Germany (sec.  16 No. 1 BeschV – only available in German), or
• if the foreigner conducts meetings or negotiations in Germany, prepares contract offers, concludes contracts or supervises the execution of a contract for an employer domiciled abroad (sec. 16 No. 2 BeschV – only available in German), or
• if, for an employer domiciled abroad, the foreigner establishes, monitors or manages a German part of its corporation (sec. 16 No. 3 BeschV – only available in German).

A foreign employee coming to Germany in order to conduct meetings or negotiations in Germany for an employer domiciled abroad constitutes a classic business trip (sec. 16 No. 2 BeschV – only available in German). However, distinguishing meetings and negotiations on the one hand from employment in Germany on the other hand can be very difficult in individual cases.

This distinction is very important as employers and foreign employees run a considerable risk of liability in case the foreigner is considered employed in Germany, but does not have the appropriate visa or residence/work permit to be employed in Germany (e.g. employer fine of up to € 500,00.00 pursuant to sec. 404 para. 2 No. 3 German Social Code, Book3 – SGB III – only available in German; employee fine of up to € 5,000.00 pursuant to sec. 404 para. 2 No. 4 SGB III – only available in German; criminal liability pursuant to sec. 95 exp. 1a AufenthG). Employers are therefore advised to carefully examine, prior to the employee’s business trip, which activities the employee will exercise in Germany and if these amount to a business trip or if they constitute employment in Germany.

Not a privileged citizen and/or not a business trip – what to do?

If the foreign employee is not a privileged citizen, she requires a Schengen Visa for a business trip. This visa is issued for up to 90 days within a period of 180 days (sec. 6 para. 1 No. 1 AufenthG).

If the foreign employee’s travels do not constitute a business trip, but employment in Germany, both a privileged and a non-privileged citizen would need a visa or residence/work permit (sec. 4 para. 3 AufenthG). Citizens of Australia, Israel, Japan, Canada, the Republic of Korea, New Zealand and the USA may obtain such a visa or residence/work permit (e.g. a residence/work permit for the purpose of employment pursuant to sec. 18 AufenthG or a Blue Card EU pursuant to sec. 19a AufenthG) after entering Germany or may apply for a National Visa at the competent German Embassy or Consulate abroad before entering Germany (sec. 6 para. 3 AufenthG). Citizens of other countries must apply for a National Visa at the competent German Embassy or Consulate abroad before entering Germany (sec. 6 para. 3 AufenthG).