German freelance and self-employment visas: the law

This is the actual law which covers eligibility for the German freelance or self-employed visas. Here is my full explanation of these programs.

Section 21, Act on the Residence, Employment and Integration of Foreigners in the Federal Territory

(1) A foreigner can be granted a residence permit for self-employment if:

  1.  there is an economic interest or a regional need ,
  1.  the activity is expected to have a positive impact on the economy , and
  1.  the implementation is financed through equity or a loan commitment .

The assessment of the requirements according to sentence 1 is based in particular on the sustainability of the underlying business idea, the entrepreneurial experience of the foreigner, the amount of capital employed, the effects on the employment and training situation and the contribution to innovation and research. The competent bodies for the place of the planned activity, the competent trade authorities, the public-law professional representatives and the authorities responsible for the professional license must be involved in the examination.

(2) A residence permit for the pursuit of a self-employed activity can also be issued if there are advantages under international law based on reciprocity.

(2a) A foreigner who has successfully completed his studies at a state or state-recognized university or comparable educational institution in the federal territory or who has a residence permit as a researcher or scientist in accordance with sections 18b, 18d or 19c (1) can obtain a residence permit Be exercised as a self-employed person in deviation from paragraph 1. The intended self-employment must show a connection with the knowledge acquired in higher education or the work as a researcher or scientist.

(3) Foreigners who are older than 45 should only be granted a residence permit if they have an adequate pension.

(4) The residence permit is limited to a maximum of three years. After three years, in deviation from section 9 (2), a settlement permit can be issued if the foreigner has successfully carried out the planned activity and the living expenses of the foreigner and his relatives living with him in a family community, to whom he has to provide maintenance, through sufficient income is secured and the requirement of § 9 paragraph 2 sentence 1 number 4 is met.

(5) A foreigner can be granted a residence permit to pursue a  freelance activity  in deviation from paragraph 1. A required license to practice the liberal profession must have been granted or promised to be granted. Paragraph 1 sentence 3 shall apply accordingly. Paragraph 4 does not apply.

(6) A foreigner who is or has been granted a residence permit for another purpose can be permitted to pursue a self-employed activity while maintaining this residence purpose, if the permits required under other regulations have been issued or their granting has been promised.

The other important provisions are those governing the kind of self-employed and freelance work you can do:

Here are the rules on the type of work that you can do on the visa:

Section 18, German Income Tax Act (EStG)

(1) Income from self-employment:

1.Income from freelance work.  The freelance work includes self-employed scientific, artistic, writing, teaching or teaching work, the self-employed work of doctors, dentists, veterinarians, lawyers, notaries, patent attorneys, surveying engineers, engineers, architects, commercial chemists, auditors, tax consultants, advisory people and business economists, sworn accountants, tax officers, naturopaths, dentists, physiotherapists, journalists, image reporters, interpreters, translators, pilots and similar professions . A member of a free profession within the meaning of sentences 1 and 2 is also self-employed if he uses the help of professionally trained workers; The prerequisite is that, based on his own specialist knowledge, he is responsible and responsible. Representation in the event of temporary prevention does not preclude the assumption of a managerial and self-responsible activity;

 2.Income from a state lottery winner if it is not a business;

 3.Income from other self-employed work, e.g. B. Compensation for the execution of wills, for asset management and for work as a member of the Supervisory Board;

 4.Income that a participant in an asset management company or community, the purpose of which is to acquire, hold and sell shares in corporations, receives as remuneration for services for the promotion of corporate or community purposes if the entitlement to the remuneration is subject to the condition it has been admitted that the partners or community members have received all of their paid-up capital; Section 15 subsection 3 does not apply.

(2) Income according to paragraph 1 is also taxable if it is only a temporary activity.

(3) 1The income from self-employment also includes the profit that is made on the sale of the property or a part of the property or a portion of the property that serves self-employment. 2§ 16 paragraph 1 sentence 1 numbers 1 and 2 and paragraph 1 sentence 2 and paragraphs 2 to 4 apply accordingly.

(4) 1§ 13 paragraph 5 applies accordingly if the property belonged to one of the independent business assets during the 1986 assessment period. 2 § 15 paragraph 1 sentence 1 number 2, paragraph 1a, paragraph 2 sentences 2 and 3, §§ 15a and 15b apply accordingly.

Here are the provisions dealing with spouses of those on the German freelance or self-employed visa:

Section 30(1), Act on the Residence, Employment and Integration of Foreigners in the Federal Territory (AutfenthG)

(1) A foreigner’s spouse is to be granted a temporary residence permit if

  1. both spouses are at least 18 years of age,
  1.  the spouse is able to communicate in the German language at least on a basic level  and
  1. the foreigner
    a) possesses a permanent settlement permit,
    b) possesses an EU long-term residence permit,
    c) possesses a temporary residence permit in accordance with sections 18d, 18f or sections 25 (1) or (2) sentence 1 first alternative.
    d) has held a temporary residence permit for two years which is not subject to a subsidiary provision pursuant to section 8 (2) or the subsequent issuance of a permanent settlement permit has not been ruled out by a rule of law; this does not apply to a temporary residence permit in accordance with section 25 (2) sentence 1 second alternative,
    e) possesses a temporary residence permit in accordance with section 7 (1) sentence 3 or Parts 3, 4, 5 or 6 or sections 37 or 38, if the marriage existed at the time said permit was granted, and the foreigner’s stay in the federal territory is expected to exceed one year; this does not apply to a temporary residence permit in accordance with section 25 (2) sentence 1 second alternative,
    f) possesses a temporary residence permit pursuant to section 38a and the marriage already existed in the member state of the European Union in which the foreigner has the status of a long-term resident, or
    g) possesses an EU Blue Card, an ICT Card or a Mobile ICT Card.

Sentence 1 nos. 1 and 2 has no bearing on issuance of the temporary residence permit if the requirements of sentence 1, no. 3 (f) are met. Sentence 1 no. 2 has no bearing on issuance of the temporary residence permit if:

  1. the foreigner holds a residence title pursuant to section 23 (4), section 25 (1) or (2), section 26 (3) or possesses a permanent settlement permit in accordance with section 26 (4) after being granted a temporary residence permit in accordance with section 25 (2) sentence 1 second alternative and the marriage already existed at the time when the foreigner established his or her main ordinary residence in the federal territory,
  1. the spouse is unable to provide evidence of a basic knowledge of German on account of a physical or mental illness,
  1. the spouse’s need for integration is discernibly minimal within the meaning of a statutory instrument issued pursuant to section 43 (4) or the spouse would, for other reasons, not be eligible for an integration course pursuant to section 44 after entering the federal territory,
  1. by virtue of his or her nationality, the foreigner may enter and stay in the federal territory without requiring a visa for a period of residence which does not constitute a short stay,
  1. the foreigner possesses an EU Blue Card, an ICT Card or a Mobile ICT Card or a temporary residence permit pursuant to sections 18d or 18f,
  1. the particular circumstances of the case mean that the spouse is unable or cannot reasonably be expected to undertake efforts to acquire a basic command of the German language before entering the country.
  1. the foreigner possesses a residence title pursuant to sections 18c (3) and section 21 and the marriage already existed when the foreigner established his or her main ordinary residence in the federal territory, or
  1. the foreigner held a temporary residence permit pursuant to section 18d immediately before a permanent settlement permit or an EU long-term residence permit was issued.

Here are the rules dealing with bringing your child on a German freelance or self-employed visa:

Section 32, Act on the Residence, Employment and Integration of Foreigners in the Federal Territory (AutfenthG)

(1) The minor, unmarried child of a foreigner is to be granted a temporary residence permit if the parents or the parent having the sole right of care and custody hold one of the following residence titles:

  1. a temporary residence permit in accordance with section 7 (1) sentence 3 or Parts 3 or 4,
  1. a temporary residence permit in accordance with section 25 (1) or (2) sentence 1 first alternative,
  1. a temporary residence permit in accordance with sections 28, 30, 31, 36 or 36a,
  1. a temporary residence permit in accordance with the other provisions, with the exception of a temporary residence permit in accordance with section 25 (2) sentence 1 second alternative,
  1. an EU Blue Card, an ICT Card, a Mobile ICT Card,
  1. a permanent settlement permit or
  1. an EU long-term residence permit.

(2) If the minor, unmarried child is aged 16 or over and if he or she does not relocate the main ordinary residence to Germany together with his or her parents or the parent possessing the sole right of care and custody, subsection (1) only applies if the child speaks German or if it appears, on the basis of his or her education and way of life to date, that he or she will be able to integrate into the way of life in the Federal Republic of Germany. Sentence 1 does not apply if

  1. the foreigner possesses a temporary residence permit in accordance with section 23 (4), section 25 (1) or (2), a permanent settlement permit in accordance with section 26 (3) or possesses a permanent settlement permit in accordance with section 26 (4) after being granted a temporary residence permit in accordance with section 25 (2) sentence 1 second alternative, or
  1. the foreigner or his or her spouse living together as a family possesses a permanent settlement permit pursuant to section 18c (3), an EU Blue Card, an ICT Card or a Mobile ICT Card or a temporary residence permit pursuant to sections 18d or 18f.

(3) As a general rule, where parents share the right of care and custody, a temporary residence permit pursuant to subsections (1) or (2) is also to be granted for the purpose of joining just one parent, if the other parent has consented to the child’s residence in Germany or if a competent authority has reached a legally binding decision to this effect.

(4) In all other cases, a minor, unmarried child of a foreigner may be granted a temporary residence permit if necessary to prevent special hardship on account of the circumstances in the individual case concerned. The child’s well-being and the family situation are be taken into consideration. Section 36a applies to minor, unmarried children of foreigners who possess a temporary residence permit in accordance with section 25 (2) sentence 1 second alternative

(5) If the foreigner is entitled to stay in the federal territory pursuant to section 18e, the minor unmarried child does not need a residence title if it has been established that the child stayed in the other member state of the European Union lawfully as the foreigner’s dependant. The requirements stipulated in section 18e (1) sentence 1 nos. 1, 3 and 4, and the grounds for rejection pursuant to section 19f apply accordingly to the minor child.

Here are the rules dealing with getting permanent residence after the German freelance or self-employed visa:

Section 9, Act on the Residence, Employment and Integration of Foreigners in the Federal Territory (AutfenthG)

(1) The permanent settlement permit (Niederlassungserlaubnis) is a residence title which is not limited in time. It may only be subject to a subsidiary provision in the cases which expressly permitted by this Act. Section 47 remains unaffected.

(2) A foreigner is to be granted a permanent settlement permit if

  1. the foreigner has held a temporary residence permit for five years,
  1. the foreigner’s subsistence is secure,
  1. the foreigner has paid compulsory or voluntary contributions into the statutory pension scheme for at least 60 months or furnishes evidence of an entitlement to comparable benefits from an insurance or pension scheme or from an insurance company; time off for the purposes of child care or nursing at home are to be duly taken into account,
  1. there are no reasons of public safety or order which would rule out granting such a permit, taking into account the severity or the nature of the breach of public safety or order or the threat posed by the foreigner, with due regard to the duration of the foreigner’s stay to date and the existence of ties in the federal territory,
  1. the foreigner is permitted to be in employment, if he or she is an employee,
  1. the foreigner possesses any other permits required for the purpose of the permanent pursuit of his or her economic activity,
  1. the foreigner has a sufficient command of the German language,
  1. the foreigner possesses a basic knowledge of the legal and social system and the way of life in the federal territory and
  1. the foreigner has sufficient living space for himself or herself and for family members living together in the same household.

The requirements of sentence 1, nos. 7 and 8 are deemed to be fulfilled if the foreigner has successfully completed an integration course. These requirements are waived if the foreigner is unable to fulfil them on account of a physical or mental illness or disability. In all other cases, the requirements of sentence 1, nos. 7 and 8 may also be waived to prevent hardship. Further, the aforesaid requirements are waived if the foreigner is able to communicate verbally in the German language at a basic level and was not entitled to participate in an integration course pursuant to section 44 (3), no. 2 or was not obliged to participate in an integration course pursuant to section 44a (2), no. 3. The requirements of sentence 1, nos. 2 and 3 are also waived if the foreigner is unable to fulfil them for the reasons stated in sentence 3.

(3) In the case of cohabiting spouses, it suffices if one spouse fulfils the requirements of subsection (2) sentence 1 nos. 3, 5 and 6. The requirement in accordance with subsection (2), sentence 1 no. 3 is waived if the foreigner is in education or training which leads to a recognised school, vocational or higher education qualification. Sentence 1 applies accordingly in the cases of section 26 (4).

(4) The following periods are counted towards the periods of possessing a temporary residence permit which are necessary to qualify for a permanent settlement permit:

  1. The duration of former possession of a temporary residence permit or permanent settlement permit, if the foreigner possessed a permanent settlement permit when he or she left the federal territory, minus the duration of intermediate stays outside of the federal territory which led to expiry of the permanent settlement permit; a maximum of four years is counted.
  1. A maximum of six months for each stay outside of the federal territory which did not lead to expiry of the temporary residence permit.
  1. Half of the period of lawful stay for the purposes of study or vocational training in the federal territory.

These are the rules on your child getting permanent residence after you have been on the German freelance or self-employed visa:

Section 35, Act on the Residence, Employment and Integration of Foreigners in the Federal Territory (AutfenthG)

Children’s independent, permanent right of residence

(1) In derogation from section 9 (2), a foreign minor who possesses a temporary residence permit in accordance with this Part is to be granted a permanent settlement permit if he or she has been in possession of the temporary residence permit for five years on reaching the age of 16. The same applies if

  1. the foreigner is of age and has been in possession of the temporary residence permit for five years,
  1. the foreigner has a sufficient command of the German language, and
  1. the foreigner’s subsistence is ensured or he or she is in education or training which leads to a recognised school, vocational or higher education qualification.

(2) Periods in which the foreigner attended school outside of the federal territory are not normally counted towards the required duration of possession of a temporary residence permit as stipulated in subsection (1).

(3) No entitlement to a permanent settlement permit pursuant to subsection (1) applies if

  1. there is a public interest in expelling the foreigner which is based on the foreigner’s personal conduct,
  1. the foreigner has been sentenced to a term of youth custody of at least six months or a prison term of at least three months or a fine of at least 90 daily rates in the past three years due to an intentionally committed offence, or if a term of youth custody has been suspended or
  1. the foreigner’s subsistence cannot be ensured without claiming benefits under Book Two or Book Twelve of the Social Code or juvenile welfare under Book Eight of the Social Code, unless the foreigner is in education or training which leads to a recognised school or vocational qualification.

The permanent settlement permit may be granted or the temporary residence permit extended in the cases covered by sentence 1. As a rule, if, in cases covered by sentence 1 no. 2, the foreigner is placed on probation or the term of youth custody is suspended, the temporary residence permit is extended until the end of the probationary period.

(4) The requirements stipulated in subsection (1) sentence 2 nos. 2 and 3 and subsection (3) sentence 1 no. 3 are to be waived if the foreigner is unable to fulfil them on account of a physical or mental illness or disability.

Here are the rules dealing with naturalising as a German citizen after the self-employed or freelance visa:

Section 10, German Nationality Act (StAG)

(1) A foreigner who has been  legally ordinarily resident in Germany for eight years  and possesses legal capacity pursuant to Section 80 of the Residence Act or has a legal representative shall be naturalized upon application if he or she confirms his or her commitment to the free democratic constitutional system enshrined in the Basic Law of the Federal Republic of Germany and declares that he or she does not pursue or support and has never pursued or supported any activities

a) aimed at subverting the free democratic constitutional system, the existence or security of the Federation or a Land or

b) aimed at illegally impeding the constitutional bodies of the Federation or a Land or the members of said bodies in discharging their duties or

c) any activities which jeopardize foreign interests of the Federal Republic of Germany through the use of violence or preparatory actions for the use of violence,

or credibly asserts that he or she has distanced himself or herself from the former pursuit or support of such activities,

has been granted a permanent right of residence or as a national of Switzerland or as a family member of a national of Switzerland possesses a residence permit on the basis of the Agreement of 21 June 1999 between the European Community and its Member States on the one hand and the Swiss Confederation on the other hand on the free movement of persons or possesses an EU Blue Card or a residence permit for purposes other than those specified in Sections 16, 17, 20, 22, 23, sub-section 1, Section 23a, 24 and Section 25, sub-sections 3 to 5 of the Residence Act.

is able to ensure his or her own subsistence and the subsistence of his or her dependents without recourse to benefits in accordance with Book Two or Book Twelve of the Social Code or recourse to such benefits is due to conditions beyond his or her control,

gives up or loses his or her previous citizenship,

has not been sentenced for an unlawful act and is not subject to any court order imposing a measure of reform and prevention due to a lack of criminal capacity,

possesses an adequate knowledge of German and

possesses knowledge of the legal system, society and living conditions in Germany.

The conditions under sentence 1, numbers 1 and 7 do not apply to foreigners who do not have legal capacity pursuant to Section 80, sub-section 1 of the Residence Act.

(2) The foreigner’s spouse and minor children may be naturalized together with the foreigner in accordance with sub-section (1), irrespective of whether they have been lawfully resident in Germany for eight years.

(3) Upon a foreigner confirming successful attendance of an integration course by presenting a certificate issued by the Federal Office for Migration and Refugees (BMAF), the qualifying period stipulated in sub-section 1 shall be reduced to seven years. This qualifying period may be reduced to six years if the foreigner has made outstanding efforts at integration exceeding the requirements under sub-section 1, sentence 1, no. 6, especially if he or she can demonstrate his or her command of the German language.

(4) The conditions specified in sub-section 1, sentence 1, no. 6 are fulfilled if the foreigner passes the oral and written language examinations leading to the Zertifikat Deutsch (equivalent of level B 1 in the Common European Framework of Reference for Languages). Where a minor child is under 16 years of age at the time of naturalization the conditions of sub-section 1, sentence 1, no. 6 shall be fulfilled if the child demonstrates age-appropriate language skills.

(5) As a rule, the conditions specified in sub-section 1, sentence 1, no. 7 shall be fulfilled if the foreigner has passed the naturalization test. To prepare for the test, foreigners may participate in voluntary integration courses.

(6) The requirements of sub-section 1, sentence 1, nos. 6 and 7 shall be waived if the foreigner is unable to fulfill them on account of a physical, mental or psychological illness or disability or on account of his or her age.

(7) The Federal Ministry of the Interior shall be authorized, without the need for approval by the Bundesrat, to issue ordinances defining the test and certification requirements as well as the basic structure and contents of the naturalization courses under sub-section 5, based on the contents of the orientation course under Section 43, sub-section 3, sentence 1 of the Residence Act.

Document Checklists/Visa Fees

Summary here

Business Applicants: https://service.berlin.de/dienstleistung/305249/

Freelance Applicants: https://service.berlin.de/dienstleistung/328332/

Settlement for Children: https://service.berlin.de/dienstleistung/324863/

Settlement for Spouses/Civil Partners: https://service.berlin.de/dienstleistung/121864/

National Visas: https://www.auswaertiges-amt.de/blob/231160/5beb74da9516aa949a6d07d7a4b61bce/gebuehrenmerkblatt-data.pdf

 

 

 

 

 

 

 

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