WORK PERMIT FOR A FOREIGNER IN THE TERRITORY OF THE REPUBLIC OF POLAND

Publication date: October 20, 2024

Polish law provides for two types of work permits: type A and type B.

Type A permit applies to foreigners performing work in the territory of the Republic of Poland on the basis of an agreement with an employer whose registered office, place of residence or branch, plant or other form of organised activity is located in the territory of the Republic of Poland (Article 88, paragraph 1, item 1 of the Act on the promotion of employment and labour market institutions – hereinafter referred to as the Act).

The Act sets out the conditions that must be met in order to issue a work permit (Article 88c, paragraph 1, points 1-2):

1. the amount of remuneration specified in the contract with the foreigner will not be lower than the remuneration of employees performing comparable work or in a comparable post;
2. the amount of the monthly salary referred to in point 1 will not be lower than the minimum wage;
3. the entity entrusting work to a foreigner attached to the application for a work permit information from the staroste (equivalent to County Commissioner) competent for the main place of work performed by the foreigner on the inability to meet the employer’s staffing needs based on the registers of unemployed and job-seeking persons or on a negative result of the recruitment process organised for the employer, prepared taking into account the priority of access to the labour market for Polish citizens and foreigners referred to in art. 87 sec. 1 points 1-11.

Type B permit applies to a foreigner who holds a position on the management board of a legal person entered in the register of entrepreneurs, holds a position on the management board of a legal person that is a capital company in organisation or manages the affairs of a limited partnership or limited joint-stock partnership as a general partner or proxy – if he held this position for more than 6 months during the following 12 months.

The Act sets out the conditions that must be met by an entity of which a foreigner is to be a member of the management board, general partner or proxy in order to issue a work permit (Article 88, paragraph 4, points 1-2):

1. achieve, in the tax year preceding the submission of the application, an income of no less than 12 times the current average monthly salary in the province on the day of submitting the application, as announced by the President of the Central Statistical Office, and employ for an indefinite period and full-time for a period of at least one year preceding the submission of the application at least two employees who are not subject to the obligation to have a work permit, or
2. demonstrate the possession of resources or conduct activities that will enable the conditions specified above to be met in the future, in particular by conducting activities that contribute to increased investment, technology transfer, the introduction of beneficial innovations or the creation of jobs.

A work permit is issued at the employer’s request (Article 88a of the Act).

The application includes (specified in Article 88a of the Act):

1. information about the employer;
2. data of a person staying in the territory of the Republic of Poland, holding documents confirming fulfilment of the obligations specified in Article 88c paragraph 6 points 1 and 2 and authorised to represent the employer before the voivode and the bodies referred to in Article 88f paragraph 3;
3. foreigner’s data;
4. information about the job offered to a foreigner.

A work permit is issued by the voivode in the form of a decision (Article 88b of the Act), but the Act provides for exceptions: Article 88n of the Act concerning seasonal work permits (in such a situation, the permit is issued by the starosta). According to Article 88e of the Act, a work permit is issued for a specified period (no longer than 3 years) and is subject to further extension at the employer’s request, submitted no earlier than 90 days and no later than 30 days before the expiry of the permit (Article 88a, paragraph 1a of the Act). The application should be submitted to the voivodeship office competent for the registered office or place of residence (to the Mazovian voivode, if the specificity of the work does not allow for indicating the main place of its performance).

Point 3 concerns information from the staroste on the local labor market. Detailed conditions are specified in paragraph 8 of the Regulation of the Minister of Family and Social Policy (Journal of Laws 2022 item 1558 – hereinafter referred to as the Regulation). The competent staroste accepts a job offer from the entity entrusting work to a foreigner and checks whether among the persons registered at the district labor office there are candidates who meet the requirements specified in the job offer, not overstated in relation to the work to be performed by the foreigner. Then, they inform the entity submitting the job offer about the number of candidates meeting the requirements specified in the job offer, including the number of Polish citizens and foreigners referred to in art. 87 sec. 1 items 1-11 of the Act (if any). In agreement with the entity submitting the job offer, they refer to it candidates interested in the job offer and meeting the requirements specified therein. In addition, the staroste analyzes the amount of the proposed remuneration in relation to the amount of remuneration in the same or comparable profession or type of work. Then, within the deadlines specified in art. 88c sec. 2 (no longer than 14 or 21 days depending on the recruitment process) shall issue to the entity entrusting work to a foreigner information on the possibility of meeting the staffing needs of the entity entrusting work to a foreigner, covering Polish citizens and foreigners referred to in art. 87 sec. 1 points 1-11 of the Act, registered as unemployed or seeking work, taking into account the number of candidates referred to the employer in connection with the reported job offer, if they were referred to the employer, an assessment of the adequacy of the indicated requirements in relation to the position or type of work offered and an assessment of the proposed amount of remuneration in relation to the level of remuneration for comparable professions or types of work on the local labor market. Finally, in the event that it has issued information on the inability to meet the staffing needs of the entity entrusting work to a foreigner, it shall refer candidates who meet the requirements specified in the job offer, who are not Polish citizens and foreigners referred to in art. 87 sec. 1 points 1-11 of the Act, to the entity submitting the job offer, in consultation with that entity.

The voivode issues decisions in three copies, one of which remains in the office and two are received by the employer, with one copy being intended for the foreigner.

Cases of refusal to issue a work permit are regulated by art. 88j of the Act. These include cases of failure to meet the criteria for issuing a permit (art. 88j sec. 1 points 1-2 of the Employment Act ), failure to fulfill the obligations of the entity entrusting work during the performance of work by a foreigner (art. 88j sec. 1 point 8 of the Employment Act), as well as the criminal record of the employer or the foreigner (art. 88j sec. 1 points 3-7, 9 of the Employment Act ). In the last of the indicated cases, the legislator is not limited only to offences related to the employment of foreigners indicated in the commented Act (art. 88j sec. 1 points 3 and 4 of the Employment Act), but also indicates the offences specified in art. 218-221 of the Penal Code – concerning crimes against the rights of persons performing gainful employment (art. 88j sec. 1 point 5 of the Employment Act ), crimes against the credibility of documents indicated in art. 270-275 of the Penal Code (Article 88j, paragraph 1, item 6 of the Criminal Code ) or the crime of human trafficking specified in Article 189a of the Criminal Code (Article 88j, paragraph 1, item 7 of the Criminal Code). The decision to refuse to issue a work permit is also taken when a foreigner has been punished for an act specified in Article 270-275 of the Criminal Code in connection with the proceedings for issuing a work permit.[1]

LIST OF DOCUMENTS NEEDED WHEN APPLYING FOR A PERMIT (BOTH TYPE A AND B) – paragraph 8 of the regulation

A and B:

• application for a work permit for a foreigner;
• documents confirming your identity as an employer:
  • a copy of your ID card or a copy of the completed data pages from your travel document – if you are an individual
  • an extract from the National Court Register (KRS) or another relevant register, containing current data as of the date of application – if you are a legal person
  • partnership agreement – if you represent a limited liability company in organization or a civil partnership
• notarial deed of establishment of the company – if you represent a joint-stock company in organisation;
• a copy of all completed pages from a valid travel document of the foreigner who is the subject of the application and, if the foreigner does not have a valid travel document and is unable to obtain one, a copy of another valid document confirming his or her identity;
• proof of payment;
• power of attorney – in the event that the posting employer does not submit the application in person.

AND:

• information from the starost about the local labour market issued no earlier than 180 days before the date of submission of the application, and in cases justified by the starost – 90 days before the date of submission of the application;
• documents confirming fulfilment of qualification requirements and other conditions necessary to perform work in a regulated profession – provided that the foreigner is to perform work in a regulated profession;
• documents confirming that the foreigner meets the requirements for job candidates, specified in the information from the staroste (equivalent of County Commissioner);
• a document confirming the agreement to send a foreigner to work by your temporary work agency – if you are an employer acting as a temporary work agency.

B:

• a statement of the amount of income earned or loss incurred as a corporate income tax payer in the tax year preceding the submission of the application;
• documents confirming employment status in the year preceding the application ;
• documents confirming that:
  • in the tax year preceding the submission of the application, your company generated income of no less than 12 times the average monthly salary in the province, as announced by the President of the Central Statistical Office, on the day of submission of the application, or
  • your company has resources or conducts activities that contribute to increased investment, technology transfer, the introduction of beneficial innovations or the creation of jobs
• information about the current employment status in your company, if you are applying for a permit for a period exceeding 3 years.

It is also worth remembering that the Act of 12 December 2013 on Foreigners (unified text: Journal of Laws of 2023, item 519, as amended) provides for the possibility of applying for a so-called uniform permit (temporary residence and work permit). The proceedings are also conducted before the voivode, but the fundamental difference is that the application is submitted not by the employer, but by the foreigner.

The Act of 12 December 2013 on Foreigners (Journal of Laws of 2023, item 519, as amended) – hereinafter referred to as the Act on Foreigners – provides for certain conditions that must be met in order for a foreigner to successfully apply for a temporary residence and work permit. These include:

1. the foreigner has health insurance within the meaning of the provisions of the Act of 27 August 2004 on health care services financed from public funds or confirmation of coverage by the insurer of the costs of treatment in the territory of the Republic of Poland;

2. the entity entrusting the performance of work is not able to meet its staffing needs on the local labour market (with the exceptions indicated in art. 114 sec. 3 points 1-4, e.g. when a foreigner wants to take up work in a profession that is included in the list of professions and types of work in relation to which the issuance of a work permit does not require taking into account the information from the staroste);

3. the remuneration indicated by the entity entrusting the performance of work in the annex to the application for the permit referred to in Article 106 paragraph 1a is not lower than the remuneration of employees performing comparable work for the same amount of working time or in a comparable position;

4. the amount of the monthly salary referred to in point 4 is not lower than the minimum wage, regardless of the working hours and the type of legal relationship constituting the basis for the performance of work by the foreigner;

5. A temporary residence and work permit shall also be granted when the purpose of the foreigner’s stay in the territory of the Republic of Poland is to perform work in a profession desirable for the Polish economy, specified in the regulations issued under par. 5, the foreigner has the professional qualifications required to perform work in this profession and all the conditions referred to in par. 1 points 1, 4 and 5 are met.

SOURCES:

1. Drabek [in:] Act on employment promotion and labor market institutions. Commentary, 2nd edition, ed. Z. Góral, Warsaw 2016, art. 88(j);
2. Act of 20 April 2004 on employment promotion and labour market institutions (unified text: Journal of Laws of 2023, item 735, as amended);
3. Act of 12 December 2013 on Foreigners (Journal of Laws of 2023, item 519, as amended);
4. Regulation of the Minister of Family and Social Policy of 18 July 2022 on work permits and declarations on entrusting work to a foreigner (Journal of Laws of 2022, item 1558).

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[1]A. Drabek [in:] Act on the promotion of employment and labor market institutions. Commentary , 2nd edition, ed. Z. Góral, Warsaw 2016, article 88(j).