The document that legalises the employment of a foreign national from outside the EU, EEA and Switzerland on the territory of the Republic of Poland is a work permit. Obtaining an authorisation requires the fulfillment of a number of formalities. We will try to briefly present you the issue of obtaining work permits.
1. Types of work permits
When applying for a work permit, it’s necessary, in the first place, determine what type of authorisation has to be issued. The provisions of the Act of 20 April 2004 on employment promotion and labour market institutions (i.e. Official Journal of 2021, item 1100, as amended), hereinafter referred to as the Act on the promotion of employment, allow to distinguish six types of work permits in Poland. These are:
- type A work permit – issued for a foreigner who perfoms work in the territory of the Republic of Poland on the basis of a contract with an entity having the head office or place of residence either branch, establishment or other form of organised activity in Poland;
- type B work permit – in connection with performing function, in the management board, of a legal person entered in the register of entrepreneurs or being a capital company in organisation either in connection with running the affairs of a limited partnership or of a limited joint-stock partnership as a general partner, either in connection with granting the procuration, the foreigner stays in territory of the Republic of Poland for a period exceeding a total of 6 months during 12 consecutive months;
- type C work permit – a foreigner works for a foreign employer and is posted to the territory of the Republic of Poland for a period exceeding 30 days in a calendar year to a branch or establishment of a foreign entity or of a related entity, within the meaning of the Personal Income Tax Act of 26 July 1991 (i.e. OJ 2021, item 1128, as amended), with a foreign employer;
- type D work permit – a foreigner performs work for a foreign employer who doesn’t have a branch, an establishment or any other form of organised activity in Poland and is posted to the territory of the Republic of Poland in order to carry out a service of a temporary and occasional nature (export service);
- type E work permit – a foreigner works for a foreign employer and is posted to Poland for a period exceeding 30 days during 6 consecutive months for a purpose other than that indicated in points 2-4;
- type S work permit – it’s required in cases where a foreigner works in Poland within the scope of activities specified in the regulation of the Minister of Family, Labour and Social Policy of 8 December 2017 on subclasses of activity according to the Polish Classification of Activities (Polska Klasyfikacja Działalności – PKD) in which seasonal work permits for foreigners are issued (OJ 2017, item 2348) on the basis of a contract with an entity whose head office or place of residence either branch, establishment or any other form of organised activity is located in Poland.
Due to the specific nature of type S work permits, this publication will focus on the rules for obtaining type A, B, C, D, E work permits.
2. Who issues the work permit?
The work permit is issued by the voivode. The territorial jurisdiction of the voivode depends on the type of authorisation applied for:
- type A or B permits – issued by the voivode competent for the head office or place of residence of the entity entrusting work to the foreigner;
- type C permits – issued by the voivode competent for the head office of the entity to which the foreigner is seconded;y;
- type D permits – issued by the voivode competent for the head office or place of residence of the entity to which the service is provided, and if this entity has its head office or place of residence abroad – for the foreigner’s main place of performing work in the territory of the Republic of Poland;
- type E permits – issued by the voivode competent for the foreigner’s main place of performing work in Poland.
If, due to the specificity of the work performed by the foreigner, it’s impossible to indicate the main place of work, the permit is issued by the Masovian Voivode.
The work permit is issued at the request of the entity entrusting work. According to Article 2(1)(21b) of the Act on the promotion of employment, the term “entity entrusting work” should be understood as an organisational unit, even if it doesn’t have legal personality, or an individual who, on the basis of a contract or another legal relationship, entrusts work to a foreigner. This means that the entity entrusting work may be both the employer within the meaning of the provisions of the Labour Code, and the entity, regardless of its legal form, to which the foreign national provides services on the basis of a civil law contract (e.g. contract of mandate).
4. Application and annexes
In the Act on the promotion of employment, the legislator defined in detail the scope of information that the application for a work permit should contain. This data can be divided into 4 groups:
- information on the entity entrusting work to the foreigner and on the user employer or entity to which the employee is posted (e.g. name, head office address, contact details, registration data);
- data of a person who stays in the territory of the Republic of Poland, has documents confirming the fulfillment of the obligations specified in Article 88c(6)(1) and (2) of the Act on the promotion of employment and who is authorised to represent the employer to the voivode and the authorities referred to in Article 88f(3) of the Act on the promotion of employment in the event of applying for a type A, B, C visa (e.g. first name and surname, citizenship, data concerning an identity document);
- personal data of the foreigner (e.g. first name and surname, date of birth, nationality, name, series, number, date of issue and of expiry of the travel document);
- information on the work offered to the foreigner (e.g. period or periods of work marked with dates, position or type of work to be performed, place of performing work, legal basis for work, working time, amount of remuneration, scope of basic duties related to the work performed).
The application for a work permit is a form available on the websites of various Voivodeship Offices.
The request should be accompanied by documents showing the circumstances relevant to the issuance of a work permit. These include, among others:
- a declaration of no criminal record signed by an individual who is the entity entrusting work or who acts as the authority of the organisational unit being the entity assigning work;
- an original of the information from the staroste 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 it’s required;
- a copy of all completed pages from a valid travel document of the foreigner to whom the request relates, and in the absence of such a document, a copy of another valid document confirming identity;
- documents confirming that the foreigner fulfils the requirements for candidates by the entity entrusting work, specified in the staroste’s information on the inability to meet the employer’s staffing needs.
The application may be submitted on paper (in person or sent by post) or electronically via the praca.gov.pl platform. However, in the event of the use of the electronic means, the original of the declaration of no criminal record must be immediately delivered to the competent authority, and if the applicant acts through a proxy – also the original of the power of attorney.
5. Application fee
A fee is due for the application for a work permit. Its amount was determined in the regulation of the Minister of Family, Labour and Social Policy of 8 December 2017 on the amounts of payments made in connection with the submission of an application for a work permit or a seasonal work permit and the submission of a declaration on entrusting work to a foreigner (OJ 2017, item 2350). According to its § 2, the fees shall be:
- PLN 50 – in the event that the entity entrusting work to a foreigner intends to assign the performance of work on the basis of a work permit for a period not exceeding 3 months;
- PLN 100 – if the entity assigning work to a foreigner intends to entrust performance of work to a foreign national on the basis of a work permit for a period longer than 3 months;
- PLN 200 – in the event that the entity entrusting work to a foreigner intends to post a foreign national to the territory of the Republic of Poland in order to provide an export service.
The fee shall be paid into the account of the competent Voivodeship Office and the proof of payment constitutes an obligatory annex to the application.
6. Work permit
A work permit is issued to a strictly specified foreigner. It indicates the entity entrusting work, the position or type of work performed by the foreign national, the foreigner’s lowest monthly salary for a given position, the working time or the number of working hours per week or month, the type of contract on which the work is based and the period of validity of the permit. If the foreigner has work to do during a period shorter than a month, authorisation indicates the expected number of working hours and the remuneration for the entire working period. Type C and D work permits also specify the entity to which the foreign national is seconded, and authorisations issued to the foreigner who is to be employed as a temporary worker indicate the user employer.
The authorisation is issued for a limited period, not longer than 3 years, and can’t be extended. However, if the foreigner performs function, in the management board, of a legal person that employed more than 25 persons as of the date of the submission of the application, the voivode can deliver a work permit for a period not longer than 5 years. If the foreign employer seconds the foreigner in order to provide an export service, the voivode issues a work permit for the period of posting. In cases specified in the criteria for granting work permits for foreigners, issued by the voivode, the latter may limit the period for which such an authorisation is granted.
The work permit is delivered in three copies and the entity entrusting work receives two of them. If this authorisation is granted in the form of an electronic document, one copy is additionaly issued in writing.
7. Refusal to issue a work permit
The refusal to issue a work permit occurs by means of an administrative decision. Such a decision will be taken if any of the circumstances specified in Article 88i of the Act on the promotion of employment arises. The grounds for refusal to grant a work permit include, among others: the entity entrusting work to a foreigner submitted an application containing false personal data or false information or attached documents containing such data, testified untruth or concealed the truth, counterfeited or forged a document in order to use it as an authentic one either used such a document as authentic, was validly punished for an offence specified in Article 120(3-5) of the Act on the promotion of employment.
8. Obligations of the entity entrusting work to a foreigner
The entity entrusting work is obliged to include the conditions referred to in the work permit in the contract with the foreigner. This contract should be concluded in writing. However, before signing it, the entity assigning work should supply the foreign national its translation into a language understood by the person concerned. This entity should also give one copy of the work permit to the foreigner.
Obligations of the entity entrusting work also include informing the foreigner about the actions taken in connection with the procedure for granting or extending a work permit, as well as about decisions concerning the issuance of the authorisation, the refusal to issue it or the revocation of the permit.
Moreover, the entity assigning work is obliged to undertake due diligence during proceedings related to the issuance, renewal and revocation of a foreigner’s work permit.
Article 88i of the Act of the promotion of employment imposed a specific information obligation on the entity assigning work. According to this provision, the entity entrusting work to a foreigner has to notify, within 7 days, the voivode who issued the work permit of the following circumstances:
- the foreigner started work of a different nature or in a position other than that specified in the work permit;
- there has been a change concerning the head office or place of residence, name or legal form of the entity entrusting work to the foreign national either takeover of an establishment or its part by another employer;
- the workplace or its part has been transferred to another employer;
- the person representing the employer, referred to in Article 88c(6)(3) of the Act on the promotion of employment has changed;
- the foreigner hasn’t started work within 3 months from the initial date of validity of the work permit;
- the foreign national has interrupted work for a period exceeding 3 months;
- the foreigner finished the work earlier than 3 months before the expiry of the period of validity of the authorisation to work.
The implementation of the obligation in question is extremely important. The foreigner’s failure to start work within 3 months from the initial date of validity of the work permit and the interruption of work by the foreign national for a period exceeding 3 months constitute the conditions for revocation of the work permit.
9. 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.