Hiring Indian nationals is becoming increasingly popular with employers. The rules on legalisation of work of third-country nationals, i.e. nationals of States outside the European Union, the European Economic Area and Switzerland, apply to the regularisation of their work in Poland.
1. Obtaining a document legalising the work of a foreigner in Poland
1.1 Work permit
The rule is that a third-country national who wants to work in Poland should have a work permit. However, this principle isn’t absolute. Indeed, the Polish legislator has provided for cases when obtaining an authorisation isn’t necessary. This is specified in Article 87(1) of the Act of 20 April 2004 on employment promotion and labour market institutions (i.e. Official Journal of 2003, item 735, as amended), hereinafter referred to as the Act. This provision lists the cases when foreigners are entitled to work in Poland without a permit. This group is very wide. Therefore, we will limit ourselves to pointing out a few examples:
- a foreigner with refugee status granted in the Republic of Poland;
- a foreign national who has been granted subsidiary protection in Poland;
- a foreigner holding a permanent residence permit in the Republic of Poland;
- a foreign national with a long-term resident’s EU residence permit in Poland;
- a foreigner with a residence permit for humanitarian reasons;
- a foreign national with a consent for tolerated stay in the Republic of Poland;
- a foreigner who benefits from temporary protection in Poland;
- a foreign national who is a citizen of an EU Member State, an EEA country, a non-EU country.
Foreigners who are exempt from the obligation to obtain a work permit are indicated in Article 87(2) of the Act. For example, this group includes foreign nationals who:
- have a temporary residence permit in the Republic of Poland, granted for the purpose of study,
- are the spouse of a Polish citizen or a foreigner:
- having refugee status granted in the Republic of Poland;
- who has been granted subsidiary protection in Poland;
- having a permanent residence permit in the Republic of Poland;
- holding a long-term resident’s EU residence permit in Poland;
- having a residence permit for humanitarian reasons;
- having a consent for tolerated stay in the Republic of Poland;
- who benefits from temporary protection in Poland;
and who also holds a temporary residence permit in Poland granted in connection with entering into marriage;
- have a valid Pole’s Card;
- are entitled to stay and perform work in the territory of an EU Member State or a non-EU EEA State or the Swiss Confederation, hired by an employer with a head office in this country and temporarily posted by that employer to provide services in Poland.
1.2 Types of work permits
There are several types of work permits. The circumstances in which the employee is to perform work and its purpose are of primary importance when determining a type of authorisation to be applied for. We distinguish the following permits:
- Type A permit – it concerns a foreigner performing work in Poland on the basis of a contract with an employer whose head office, place of residence or branch, establishment or another form of organised activity is located in the territory of Poland. This type of authorisation is issued for a maximum period of 3 years;
- Type B permit – it is issued to a foreigner who performs a function of a legal person entered in the register of entrepreneurs in the management board or being a capital company in organisation, either who as a general partner runs the affairs of a limited partnership or a limited joint-stock partnership, or who has been granted a power of attorney and who has been staying in the territory of Poland for a period exceeding a total of 6 months within the consecutive 12 months;
- Type C permit – this type of authorisation is issued in the event that a foreigner performs work for a foreign employer and is posted for a period exceeding 30 days in a calendar year, in the territory of Poland to a branch or establishment of that employer or a related entity;
- Type D permit – it applies to a foreign national who performs work for a foreign employer without a branch, establishment or other form of organised activity in Poland and is posted there to provide a service of a temporary and occasional nature (export service);
- Type E permit – this type of authorisation is intended for a foreigner who works for a foreign employer and is posted to Poland for a period exceeding 30 days in a calendar year for a purpose other than those for type B, C and D permits;
- Type S permit – seasonal work permit.
In the event that a third-country national is to provide work for a Polish employer, a type A work permit shall be applied for. Therefore, further comments will be devoted for the procedure for applying for this type of work permit.
1.3 Application for a work permit
An employer who wants to engage a foreigner should apply for a work permit. Indeed, such an authorisation is issued for a specific employer.
The application should be submitted to the Voivode competent for the head office or place of residence of the employer. However, if the specifity of the foreigner’s work doesn’t allow to indicate the main place of its performance, the Mazovian Voivode is the autority competent to examine the request (Article 88 b of the Act).
The application is made on an official form. In addition to the employer’s and foreigner’s data, the form shall include information concerning the job offered, i.e.:
- period or periods of work – marked with dates,
- position or type of work to be performed,
- place of performing work,
- legal basis for work (e.g. employment contract, contract of mandate),
- working time or the expected number of working hours per month or week,
- amount of remuneration determined by an hourly or monthly rate,
- scope of basic duties related to the work entrusted to the foreigner (Article 88a(1aa) of the Act)
The request shall be accompanied by documents necessary to confirm the data contained in the application and the circumstances justyfing the issuance of the work permit (Article 88a(1ac) of the Act). These are:
- proof of payment of the application fee;
- power of attorney – if the applicant acts through a proxy;
- a copy of the identity card or a copy of the completed pages with data from the travel document – if the applicant is a natural person;
- a current extract from KRS (Krajowy Rejestr Sądowy – the National Court Register) – if the applicant is a legal person;
- company deed – in the event that the entity entrusting work to a foreigner is a limited liability company in organisation;
- notarial deed establishing a company – if the entity entrusting work to a foreigner is a joint stock company in organisation;
- a copy of a valid travel document with the personal data of the foreigner concerned by the application, and in the event that the foreign national doesn’t have a valid travel document and it isn’t possible to obtain it – a copy of another valid document confirming his/her identity;
- a statement regarding criminal record, legibly signed by the employer, prepared not earlier than 30 days before submitting the application;
- information from the staroste competent for the main place of work performed by a foreigner on the inability to meet the employer’s staffing needs based on the registers of the unemployed and job seekers or on the negative result of recruitment organised for the employer, issued not earlier than 180 days before the date of submitting the application, and in cases justified by the staroste – 90 days before the day of presenting the request – if such information is required in a given case;
- a document prepared by the user employer, confirming the arrangements for the referral of the foreigner by the temporary employment agency – if this agency is the entity entrusting work;
- documents confirming that the foreigner fulfils the requirements set for job candidates by the entity entrusting work, specified in the staroste’s information on the inability to meet staffing needs – in the event that the staroste’s information was required;
- documents confirming the fulfillment of qualification requirements and other conditions in the case of the intention to entrust a foreigner with work in a regulated profession.
The application may be submitted in person to the appropriate department of the voivodeship office. It can also be sent by post or presented online via the praca.gov.pl portal.
1.4 Issuance of a work permit
The work permit should be issued within one month from the date of submission of a complete and formally correct application. In particularly complicated cases, this deadline may be extented to 2 months.
If the application is accepted, the Voivode takes an administrative decision. The decision is issued in three copies: one remains with the office and two of them are given to the employer. One copy of the decision should be kept by the employer and the other one given to the foreigner. This document constitutes the basis for the foreign national to apply for a visa.
A refusal to issue a permit also takes the form of an administrative decision. It’s possible to appeal it to the Minister of Family and Social Policy. The appeal shall be made within 14 days from the date of receipt of the decision, through the voivode.
2. Obtaining a document legalising the foreigner’s stay in Poland
2.1 Visa
A visa constitutes a document legalising a foreigner’s stay in Poland. A foreign national should obtain it before coming to Poland. It’s issued for a strictly defined period of time. Before its expiry, the foreigner is obliged to leave Poland, unless he/she has another valid document entitling him/her to stay in this country.
It should be explained here that a foreigner may legally stay in Poland under the visa-free regime. However, this applies only to citizens of certain countries, e.g. Macedonia, Georgia, Moldova. Under the visa-free regime, a foreign national may stay in the Schengen area for 90 days within a period of 180 days.
2.2 Visa application
The foreigner should apply for a visa. The request shall be submitted to the Polish consulate or Polish embassy competent for the place of residence of the person applying for a visa.
The application is made on an official form. It shall be accompanied by a valid travel document. However, the period of validity of this document can’t end earlier than 3 months after the expiry of the visa and the document itself should be issued within the last 10 years. Moreover, it should contain at least 2 blank pages.
The foreigner should also submit documents showing the purpose and conditions of the intended stay. If an employee applies for a visa in connection with the intention of take up employment in Poland, the document confirming the purpose of stay is an authorisation to work in this country. The type of other attachments depends on whether the foreign national requests for a national visa or Schengen one. A national visa (marked with the “D” symbol) entitles to enter and stay or to several consecutive stays in Poland, for a total period of at least 3 months. The period for which the visa is issued is determined in accordance with the purpose of stay indicated in the application, but no longer than 1 year. On the other hand, a Schengen visa (marked with the “C” symbol) is issued in the event that a foreigner intends to stay in Poland or in the Schengen States, during one or more entries, for up to 90 days within 180 days. This period is counted from the date of the first entry.
2.3 Purpose of issuing a visa
Visas are issued for a very specific purpose. It’s indicated on the visa sticker in the “remarks” box by the “purpose of issue:” writing and entering the appropriate marking. Indications are specified in the Regulation of the Minister of Internal Affairs and Administration of 22 March 2022 on visas for foreigners (OJ 2022, item 827, as amended). There are some examples of markings below:
- “01” – in the event that the visa is issued for the purpose of tourism;
- “05a” – when the visa is issued for the purpose of performing work on the basis of a registered declaration on entrusting work to a foreigner;
- “05a” – when the visa is issued for the purpose of performing work on the basis of a registered declaration on entrusting work to a foreigner; 88(2) of the Act for a period not exceeding 9 months in a calendar year;
- “13a” – when the visa is issued for the purpose of completing an internship;
- “18” – in the event that the visa is delivered in order to benefit from the rights resulting from the possession of the Pole’s Card.
3. Conclusion of an employment contract/a civil law contract under the conditions specified in the work permit
The final stage of the procedure is for the employer and the foreigner to conclude a contract that fulfils the conditions specified in the work permit. This requirement concerns both the type of agreement and its content. Any deviations aren’t allowed. The contract should be drawn up in two language versions, i.e. in Polish and in a language understood by the foreign national.
It should be emphasised that before starting work, the employer is obliged to require the foreigner to present a valid document entitling him/her to stay in the territory of the Republic of Poland. A copy of this document should be kept for the entire period of work performed by the foreign national.
Moreover, the employer has an absolute obligation to inform the Voivode who issued the work permit of the following circumstances:
- commencement by the foreigner of work in a different capacity or position than that specified in the work permit – the employer may entrust the foreign national, for periods not exceeding a total of 30 days in a calendar year, with work of a different nature or position than that specified in the work permit, in the event that the other conditions determined in such an authorisation have been fulfilled;
- a change of the head office or place of residence, name or legal form of the entity entrusting the foreigner with the performance of work or the takeover of the workplace or of its part by another employer;
- the transfer of the workplace or its part to another employer;
- the change of the person representing the foreign employer in Poland;
- failure to start work by the foreigner within 3 months from the initial date of validity of the work permit;
- interruption of work by the foreign national for a period exceeding 3 months;
- termination of the foreigner’s work earlier than 3 months before the expiry of the work permit.
The employer should send a notice to the Voivode of the above events within 7 days. The notification should be in writing (Article 88i of the Act).
4. Legal notice
The study is a work within the meaning of the Act of 4 February 1994 on Copyright and Related Rights (OJ 2006, No. 90, item 631, consolidated text, as amended). Publishing or reproducing this study or its part, quoting opinions, as well as disseminating in any other way the information contained therein without the written consent of Crede sp. z o.o. is prohibited.