Employing foreigners in Poland (part 3). Work permits

Anna JELIŃSKA
Tax Consultant at RSM Poland

As we already know, any foreigner who is a citizen of the European Union and wishes to work on the territory of Poland does not need a work permit. We discussed this in more detail in our last article from a series on employing foreigners in Poland.

However, employing third-country nationals is a more complex procedure, as there are certain permits that must be obtained and the employer must get involved in the process. If the employer fails to meet these obligations, he or she may face quite severe penalties.

What is a work permit and how does one apply for it?

A work permit is a decision by a competent province governor, under which the foreigner has the right to work on the territory of Poland in accordance with the terms and conditions set forth in the regulations and in this decision.

It should be noted that it is the employer, and not the foreigner, that is obliged to submit an application for a work permit. What is more, an entity applying for a permit must remember about the obligation to attach the information from a province governor attesting that the local labour market cannot provide personnel to fit the employer’s needs. The employer has this obligation in the case in which the profession or the type of work to be entrusted to a foreigner are not included on the list of scarce professions and types of work in a given province.

The district governor shall issue the aforementioned information:

• within a maximum of 14 days from the date of submitting a job offer to the District Labour Office, provided that the registers of the unemployed and jobseekers both show that job recruitment cannot be organised;
• within a maximum of 21 days from the date of submitting a job offer to the District Labour Office in the case in which the job recruitment is organised for the unemployed and jobseekers.

A written application with attachments shall be submitted to a competent provincial office, along with the required payment; the amount of this payment depends on the validity period and type of permit to be issued.

A work permit is required:

• if the foreigner is employed on the basis of a contract by an entity whose seat or place of residence or a branch, plant or other organised form of business activity is located on the territory of Poland;
• if the foreigner stays on the territory of Poland for a period exceeding 6 months within 12 consecutive months as a result of a power of attorney;
• if the foreigner stays on the territory of Poland for a period exceeding 6 months within 12 consecutive months as a result of holding a position in the management board of a legal person entered to the register of entrepreneurs or being a capital company in an organisation;
• if the foreigners stays on the territory of Poland for a period exceeding 6 months within 12 consecutive months as a result of handling the affairs of a limited partnership or a limited joint-stock partnership as a general partner;
• if the foreigner performs work for a foreign employer and is delegated to the territory of Poland to a branch or a plant of a foreign entity or a related entity for a period exceeding 30 days in a calendar year;
• if the foreigner performs work for a foreign employer that does not have a branch, plant or other organised form of business activity on the territory of Poland and is delegated to Poland in order to engage in temporary and occasional service (export);
• in any other case, if the foreigner performs work for a foreign entity and is delegated to the territory of Poland for a period exceeding 30 days within 6 consecutive months.

The province governor issues a work permit for a fixed term, not longer than 3 years. This term may, however, be extended. If the foreigner holds a position on a management board of a legal person that employs more than 25 people at the time of application for a permit, the province governor may issue a permit for a period not longer than 5 years. If the foreigner is delegated by a foreign employer to perform an export service, the province governor shall issue a permit for the delegation period.

A work permit is issued for a specific foreigner who shall work in accordance with the terms and conditions provided in the work permit. An exception here is performing work of a different type or in a different position than specified in the work permit for a period that does not exceed a total of 30 days within a calendar year, provided that the remaining terms and conditions set forth in the work permit and statutory requirements have been met. The province governor shall be notified about this.

A new work permit is not required in the event of:

• a change of the seat or place of residence of the foreigner’s employer;
• a change of the business name or a legal form of the foreigner’s employer;
• a takeover of the establishment in whole or in part by another employer;
• a transfer of the establishment or a part thereof to another employer;
• replacing a civil law contract with an employment contract.

Obligations of the employer

The employer shall have the following obligations related to the foreigner:

• conclude a contract in writing and provide a translation into a language that he or she understands;

• provide one copy of a work permit in writing;
• inform the foreigner of any steps taken in the proceedings to obtain or extend a work permit and of any decisions to issue, refuse or revoke a work permit;
• exercise due diligence in any proceedings to issue, extend or revoke a work permit for a foreigner.

Furthermore, the employer shall be obliged to notify, in writing, the province governor who issued a work permit if any of the below circumstances occur:

• the foreigner took up work of a different type or in another position than specified in the work permit;

• the seat or place of residence, business name or legal form of the foreigner’s employer has changed;
• the establishment has been taken over in whole or in part by another employer;
• the establishment has been transferred in whole or in part to another employer;
• the person representing the employer has changed;
• the foreigner has failed to take up work within a period of 3 months from the date of beginning of the work permit validity;

• the foreigner stopped working for a period exceeding 3 months;
• the foreigner completed the work earlier than 3 months before the expiry date of the work permit.

The deadline for relevant notifications shall be 7 days from the occurrence of the above circumstances.

Who can work without a work permit

The work permit is not required if you are a foreigner married to a Polish national, holder of a valid Pole’s Card, artist, athlete or a student. This obligation also does not apply to foreigners delegated by a foreign employer to Poland for a purpose specified in the regulations, provided that they retain their permanent residence abroad for a period not longer than 3 months in a calendar year.

As a rule of thumb, any foreigner who wants to work in Poland must have a work permit. However, there are a number of exceptions to this rule. Therefore, an employer who wants to hire a foreigner must consider where the foreigner is from, what type of work he or she will perform, what position he or she will take, and check if the regulations do not exempt the foreigner from the obligation to have a work permit.

What is more, the regulations also provide that a foreigner applying for a work visa instead of a work permit shall submit a written statement of the employer’s intention to employ. When and how? You can read more about this procedure in the upcoming post.