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Employment of foreigners in IT

One of the effects of globalization and European integration is the conviction that the world has become a global village and the same or very alike legal standards apply everywhere. This kind of approach often characterizes the representatives of the IT industry, in which the demand for IT services from software developers all over the world is increasing day by day and generates a desire to hire them. In practice, the expectation of consistent and liberal laws on the employment of foreigners collides with a wall of requirements and restrictions provided by national laws, which in the case of Poland are very complex and often hamper the free flow of hands to work. In this post, we will focus on the engagement of non-EU foreigners, as citizens of EU member states are treated on the same basis as Polish citizens in getting into the labor market.

Employment contract or b2b?

Polish software developers, when establishing cooperation with a software house, usually calculate whether it would be more beneficial to base their engagement on a contract of employment, or whether they should go in the direction of self-employment (B2B). Foreigners, as a rule... do not have such a dilemma. Polish regulations, in practice, prevent a significant percentage of foreign (non-EU) individuals from conducting business, and the provisions of the Act of March 6, 2018 on the participation of foreign entrepreneurs and other foreign persons in business in the territory of the Republic of Poland stand in the way here. To conduct a business in Poland, a foreigner would have to have one of the following legal grounds:

permanent residence permit;
a residence permit for a long-term resident of the European Union;
a temporary residence permit granted on account of, among other things, reunification with family legally residing in Poland, university education;
refugee status;
subsidiary protection;
a residence permit for humanitarian reasons or a permit for tolerated stay;
a temporary residence permit while being married to a Polish citizen that resides in Poland;
a temporary residence permit to conduct business activities, granted due to continuation of business activities already carried out based on an entry in the Central Register and Information on Business Activity;
temporary protection in Poland;
a valid Pole’s Card.

In practice, most software houses will be forced to hire non-EU personnel under an employment contract. There are plenty of requirements and exceptions to the employment of foreigners, so we will try to mention the most relevant issues for introduction to this complicated matter.

Without a work permit

Firstly, we look at whether the foreigner is exempt from obtaining a work permit. This is an exception to the rule, which can make life easier for both the employer and the potential employee. The most popular case of exempting a foreigner from the obligation to obtain a work permit is the fact that they are a graduate of full-time higher education studies at Polish universities (according to § 1 item 15 of the Regulation of the Minister of Labor and Social Policy of April 21, 2015, on cases in which entrusting work to a foreigner on the territory of the Republic of Poland is allowed without having to obtain a work permit). A diploma from a Polish university opens the way for a software developer to pursue a career in Poland regardless of their citizenship.

An „ordinary” work permit

The basic document authorizing a foreigner to work in the territory of Poland is a type A work permit issued by the voivode. One of the most burdensome requirements of this approach is the need to provide the starost's information about the local labor market (the so-called "labor market test"), which is supposed to display that this particular position cannot be obtained by a person registered with the Local Labor Office. Fortunately for the IT industry, usually such information will not be mandatory. Under the Regulation of the Minister of Labor and Social Policy of January 29, 2009 on determining cases in which a foreigner's work permit is issued regardless of the special conditions for issuing permits for the work of foreigners, software developers are exempted from the obligation to provide information from the starost. It is worth adding that this permit is applied for by the employer, not the foreigner, to the voivode due to the employer's office. This permit is detached from the residency issues that a foreigner should have dealt with regardless of employment aspects.

It should be emphasized that a permit is issued to take up employment with an exact employer, under specific conditions, and a change of employer or conditions requires a new permit, which is a significant constraint for many foreigners and their potential new employers.

Single temporary residence and work permit

This is another basis for employment, which, unlike the "ordinary" permit, connects two issues: residence and work. In this case, the application is submitted by the foreigner to the voivode due to the foreigner's place of residence (and not the employer's office). The employer in this case does not submit the application and is not a party to the proceedings before the voivode. The role of the employer, in this case, is limited to filling out Appendix 1 to the application, which confirms the conditions of employment, as well as requesting information from the starost on the labor market test (when required - in the case of the IT industry this will not be necessary). Similarly, as in the case of an ordinary work permit, the permit is granted in relation to a specific employer.

Blue card

It is impossible not to mention the temporary residence permit to work in an occupation that requires high qualifications, the so-called blue card. This special residence permit is designed for skilled workers. The permit can be obtained for up to three years. It is granted for a period of three months longer than the intended period of employment, but no longer than three years. The foreigner attaches appendices No. 1 and No. 2 filled by the employer to the application for a temporary residence permit, which indicates the conditions of his employment. The permit is issued to take up employment with a specific employer, under specific conditions. The pros associated with having an EU Blue Card are, most importantly, the considerable simplification of procedures related to changing an employer or work position (after two years of residence on this basis in Poland) and the facilitation for family members of Blue Card owners. Members of the close family of a foreigner owning a Blue Card, who have temporary residence permits issued for family reunification, can take up employment without the need for a work permit.

Registration of a statement on entrusting work to a foreigner

Important facilitations are provided for foreigners from Ukraine, Belarus, Russia, Georgia, Armenia, and Moldova, who do not need to apply for a work permit, and it will be sufficient to entrust them with work, which will be registered in the Local Labor Office (so there is no waiting for a decision). The period of employment, in this case, cannot exceed 6 months within the next 12 months, and the work to be performed by the foreigner does not apply to seasonal work, for which a permit must be obtained. The statement must be submitted before the foreigner starts work. One should remember that a foreigner can take up work only after the labor office enters the statement in the register of statements. The labor office will consider the statement within 7 working days from the date of submission of a complete statement in cases not requiring an investigation procedure (the deadline should be counted from the working day following the submission of a complete statement); in cases requiring an investigation procedure, the deadline is extended to 30 days from the date of submission of the statement, and in particularly complex cases up to 2 months from the date of submission of the statement.

As seen above, there are several different instruments for employing foreigners in Polish legislation. Which instrument is ultimately chosen depends on the legal and life situation of the foreigner, which may more or less correspond to the requirements set by the legislator. Employers in the IT industry are turning to foreign labor more and more, so it is worth keeping up to date with the regulations on the engagement of foreigners.