Austrian Migration Law

Legal Corner - Column June, 2009

So, say you are a citizen of a non-EU country and you want to live and work in Austria?  Sounds like a great plan! But before your first day of legal residence and work in Austria you have to overcome the obstacles of the Austrian Migration System. This article gives you a first glimpse into how to proceed if you want to receive a residence permit in Austria.

The Basics

Current Austrian Migration Law provides more than 20 different residence permits (Aufenthaltstitel) for various purposes (e.g. key-employees, students, family members, seasonal workers). Before applying for a residence permit you have to settle on a purpose of your resi-dence as a range of laws are applicable (e.g. Settlement and Residence Act, Alien Employment Act). The various residence permits give the holder different rights (e.g. residence, residence and work) and procedures differ depending on which section of law applies.

Austrian Migration Law makes a basic difference between simple residence permit-limited leave to remain (Aufenthaltsbewilligung) and residence permit-indefinite leave to remain (Niederlassungsbewilligung). Whereas a residence permit-leave to remain (Aufenthaltsbewilligung) provides legal residence only, a residence permit-indefinite leave to remain (Niederlassungsbewilligung) is a qualified form of legal residence.

This curious distinction is significant, because in most cases only a residence permit-indefinite leave to remain can offer permanent residence after five years of settlement and finally citizenship. A residence permit-leave to remain provides only legal residence and can never lead to permanent residence or citizenship.

However for all residence permits, general preconditions have to be met: a valid passport, the proof of legal right to your house or apartment, health insurance, proof of regular income or alimony, proof of good conduct and (usually) a place within the annual quota. In addition, there are special requirements for each permit.

Possibilities for highly qualified workers (key employees)

For key employees, two possibilities are of particular interest: a residence permit-indefinite leave to remain – key employee (either key employee-employed, or key employee-self-employed) or a residence permit-leave to remain – special cases of gainful employment (e.g. a top manager).

We will take a look at the option for the residence permit-indefinite leave to remain – key employee, as this option includes legal settlement, a work permit and the possibility of permanent residence status in Austria after five years.

To be qualified as a key employee you have to hold special qualifications or professional experience needed on the Austrian labour market and receive a monthly salary of at least € 2.411 pre tax (valid for the year 2009). In addition, your job has to be of special interest to the region or relevant segment of the labor market: It should create new or protect existing employment, have an important influence on the management of the company or be the primary reason for the trans-fer of investment capital to Austria.

The application including the information mentioned above should then be submitted, generally in person, to the competent authority, i.e. to the Austrian Embassy or Consulate in your home country. In the case of a residence permit-indefinite leave to remain key employee-employed, the application has to be submitted by your Austrian employer to the provincial governor of the part of Austria where you intend to live.

After the check of the formal requirements, including space in the quota, the application is forwarded to the Austrian Employment Service (AMS), which will determine whether the criteria have been met.

If your application is approved, the provincial governor will issue a residence permit to live and work in Austria – usually for a period of 18 months. To extend it, you need to reapply before the expiration date. After five years, you are entitled to apply for permanent residence.

To avoid disappointment, however, it is often best to get legal advice. This is an invest-ment in your future and can make an enormous difference on the ease of your transition into Aus-trian society.

Dr. Julia Abermann is with Lansky, Ganzger und Partner, an international law firm with close working relationships with all important business and social groups, institutions and organizations in Austria. Consultation in 16 languages. 

For further information, see www.lansky.at.

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