Collected FAQs

According to § 5, para. 1, no. 1 of the Residence Law, eligibility for being granted a residence title is dependent on one's livelihood being secured. According to Section 2, paragraph 3, clause 1 of the German Residence Act, livelihood also constitutes adequate health insurance cover. Having sufficient health insurance for entering the country is a requirement for visa procedures. 

No. Changes to the contents or objectives of a research project will not result in a residence permit becoming invalidated. Additionally, these changes do not require a new hosting agreement for the same researcher, provided that the researcher's work still qualifies as 'research' as defined in the Researcher Directive and in the Ordinance on Residence at the research institute where the hosting agreement was issued. This is stated in Section 18d, Paragraph 5 of the German Residence Act. 

A secure means of subsistence during the guest academic's stay in the host country is an important precondition for issuing a visa and residence permit. Whether someone is able to cover their living expenses in the host country depends on the amount of the fellowship and the sponsorship period. 

The facts regarding the amount and the sponsorship period must be accurate. If this is not the case, it can lead to a refusal of the application or an early termination of the stay. Moreover, the guest academic and responsible officials at the host university would face being penalised by the immigration authorities for giving false information during the application process. 

The amount and the sponsorship period of the fellowship should therefore only be disclosed if there has been a binding decision on these matters and only by the office responsible for awarding the fellowship. 

The length of time for which a residence title is granted is strictly at the discretion of the Immigration Office.  If a residence permit is issued for the purpose of research (Section 18d German Residence Act) the law requires it to be issued for a "minimum duration" of one year. Thus, Immigration Offices cannot be forced to set a time frame of more than one year for the residence permit year from the outset. 

A 90-day visitor's visa (Schengen visa) does not entitle you to enter the country for a period of more than 90 days, nor to enter the country for the purpose of employment. Additionally, changing from a Schengen visa to another type of permit is only permitted under exceptional circumstances. It is therefore essential to apply for a national visa from the start covering the intended research position. 

Once you have entered the country, you will need to apply for the relevant residence permit. This application should generally be submitted three months or less before the expiration of your national visa. 

Citizens of the European Union, Iceland, Liechtenstein, Norway and Switzerland have the right to stay in Germany for purposes of research under EU freedom of movement legislation. This right extends to members of their family, meaning that they are allowed to enter Germany. Family members are defined as a spouse and children under the age of 21, even if they are citizens of a third country. 

Therefore, you and your spouse may bring your child with you. Family members of those who have freedom of movement, but are not citizens of the European Union themselves, need to apply for and be issued a residence permit for family members of European Union citizens once they have registered as residents in Germany. The residence permit will then be valid for five years. For the application, the familial relationship to the EU citizen must be proven. In this case, evidence that the child is related to its parents will need to be provided. 

Family members generally require a visa to enter the country. Citizens of several countries are able to enter Germany without a visa for family reunification purposes to apply for this permit. 

N.B.: If a researcher with German nationality returns to Germany accompanied by family members who are neither German citizens nor a citizen of a country whose citizens have the right to freedom of movement, their family members also have the right to a residence permit. They are, however, is subject to different regulations under the Residence Law and other requirements will generally apply.

Unmarried partners will not be granted a residence permit unless they can provide their own reasons for staying in Germany, for example through an employment contract that would suffice for their individual application.

If the researcher has a residence permit for France, she already has permission to be within the Schengen area. For this reason, she may then travel to any other Schengen state for up to 90 days in a period of 180 days on the basis of her French residence permit. 

Ireland is not a member of the Schengen area. A residence permit for Ireland does not entitle you to travel to the Schengen area. The researcher, therefore, would need a visa in order to attend a conference in a Schengen state if her nationality does not allow for visa-free entry into the Schengen area for short periods.

Like Germany, Spain is a signatory of the Schengen Agreement. In order to enter Germany and Spain, a Schengen visa or the ability to travel to the Schengen area without a visa for short visits would suffice if the total time spent in the Schengen area would be 90 days or less.

A foreign national only needs a work and residence permit for the country in which they reside in order to fulfil the obligations of an employment contract. The location of the employer's headquarters is irrelevant. The researcher, therefore, would require a residence permit for Switzerland and not for Germany. The researcher will then be registered for tax, social security and healthcare insurance purposes in the country in which she carries out her employment, therefore in Switzerland. There is no requirement for her to be registered in Germany for tax or social security purposes. You as her German employer would therefore likely pay her salary without deducting income tax.

The researcher is then responsible for her own income tax affairs in Switzerland. Regarding social security, it should be noted that she will be working for an employer not domiciled in Switzerland. Accordingly, the employee is responsible for the payment of any relevant social security contributions herself. In Switzerland this type of contribution is known as ANobAG ("Arbeitnehmer ohne beitragspflichtigen Arbeitgeber"). The salary should be paid to the researcher without deducting the employee’s social security contributions. The employer's share of the social security contributions that the employee is required to pay herself may be subsidised by an additional payment from the employer.

This question needs to be viewed from three legal perspectives, namely regarding residence law, employment law and social security regulations.

1. Residence Law

   The researcher’s dual citizenship as an EU citizen does not create any special concern with regard to residence law. Every EU citizen enjoys the right to freedom of movement within the EU, no matter what other citizenships they may have. According to section 2, paragraph 2, clause 1 of the EU Freedom of Movement Law (EU-Freizügigkeitsgesetz), citizens of the European Union have the right to freedom of movement when they wish to spend time in Germany as an employee. The citizenship of an additional third country does not impact the citizenship of the EU country and its inherent rights to freedom of movement in any way.

2. Employment Law

   There is also nothing of note to observe with regards to employment law. German employment law follows the territoriality principle. This means that an employment relationship in Germany is subject to German employment law, no matter the citizenship of the employee. As article 8 paragraph 2 of the Rome I Regulation (EC) (No 593/2008 of the European Parliament and of the Council) established, employment relationships are subject to the state where the employee usually carries out their work in cases where no divergent choice of law has been made. Regarding temporary contracts, this means specifically that the Law Regulating Fixed-Term Employment Contracts in Science and Research (Wissenschaftszeitvertragsgesetz) and the Part-Time Work and Fixed-Term Employment Contract Law (Teilzeit- und Befristungsgesetz) must be observed. According to section 14 paragraph 2 clause 1 of the Part-Time Work and Fixed-Term Employment Contract Law, temporary employment is allowed for up to two years without a specific reason being given, and according to the Law Regulating Fixed-Term Employment Contracts in Science and Research up to a total of six years. In this case, this time period has not been surpassed. Furthermore, research activity itself most likely would be perceived as a legitimate reason in the sense of the Part-Time Work and Fixed-Term Employment Contract Law.

3. Social Security Regulations

   With respect to social security regulations, several aspects must be differentiated. Fundamentally, according to section 3 clause 1 of the Social Security Statute Book IV (SGB IV), the territoriality principle would also be applicable in Germany. This means that an employment relationship within the Federal Republic of Germany is subject to Germany’s social security requirements, no matter the nationality of the employee. Put more simply: a person who enters into an employment relationship in Germany is also subject to its social security regulations.

   This is also the case when an EU citizen who has previously been in the social security system of another EU member state enters into an employment relationship in Germany. The additional citizenship of a third country is irrelevant here. According to article 11, paragraph 1, clause 3 lit. a. of regulation (EC) No. 883/2004, social security is established in the member state where employment activities are carried out. Article 6 of this regulation specifies that possible times insured must be taken into account. An exemption is possible according to article 16 upon request, but only in exceptional cases. The prerequisites for the application of this exception to the coordination of social security systems is that the person was already part of a social security system of a member state, though. The person in question last had their residence and place of employment in a third country, meaning that they were not socially insured in an EU member state and therefore the aforementioned regulations are not applicable, but instead sections 3-6 of the Social Security Statute Book IV (SGB IV).

    

Regarding the third country, the answer to the question is also dependent on whether the country in question has agreed a bilateral agreement in the form of a so-called “exemption agreement” with Germany. A list of third countries that have signed such agreements with the Federal Republic of Germany can be found on the website of the German Liason Office for Health Insurance- Abroad (Deutsche Verbindungsstelle Kraneknversicherung- Ausland- in German). Should such an agreement exist, an application can be made to the regulatory office in the third country to be exempted from the insurance requirements in Germany in order to continue to be part of the social security system in the home country.

For the case described here, this means the following: an employee with dual nationality that lived in the relevant third country before and was employed in a manner requiring social security contributions could submit an application to be exempted if such an exemption agreement exists. Should such an agreement not exist, the employee is required to pay social security in Germany. Should the employment relationship not exceed the five year waiting period prerequisite to obtaining a right of claim to a German pension, the employee would have a reimbursement claim according to section 210, paragraph 1a of the Social Security Statute Book IV (SGB IV) as long as the employee returns to the third country. The reimbursement can only be received upon request and first after 24 months have passed following the end of employment. Forms and further information can be found on the German Federal Pension Insurance website.

If you have an employment contract the following is applicable: According to Regulation (EC) 883/04, you are obliged to participate in social security and you must therefore join a health insurance scheme in the country in which you are employed, i.e. Germany. You can only apply to remain in the health insurance scheme in your own country in exceptional cases, such as when the duration of the stay in Germany is limited and legally-recognised relations to an employer at home continue to exist, for example in the case of leaves of absence with the right to return to your position in your own country. 

According to Art. 193, para. 3 of the German Insurance Contract Act ("Versicherungsvertragsgesetz"), as of 1 January 2009 every person residing in Germany is obliged to obtain insurance from a health insurance provider authorised in Germany. 

European Health Insurance Cards are only valid for a temporary stay in Germany (holidays, business trip or job search) and only cover essential medical provision at the doctor, at the dentist or in hospital as well as necessary treatment for existing or chronic illnesses. It will become invalid as soon as you are obliged to pay social security contributions in Germany according to Regulation (EC) 883/04, such as when you are employed by a German research institute. 

Researchers from third countries arriving in Germany on the basis of Section 18d of the German Residence Act have the possibility of joining the statutory health insurance scheme within three months of their arrival in Germany. This coverage would also cover the aforementioned topics. When new substutatory private health insurance policies are taken out, they often exclude previously diagnosed preconditions and impose waiting periods for pregnancy treatments, as otherwise their pricing system would break down. In principle, this is also the case for temporary health insurance policies for trips abroad that do not require a health check up. Other private health insurance coverage in Germany may also cover these conditions, but at a higher fee. 

Apart from a local Portuguese health insurance company, you may want to consider a German foreign health insurance. Your German health insurance scheme is obliged to take you on again if you start working in Germany up to two months after your return or if you paid contributions for certain obligatory periods before leaving the scheme. 

The A1 Form certifies that foreign social security regulations are applicable in Belgium. In your particular case it is doubtful whether you are subject to obligatory social security in either Spain or Germany because this presupposes that you are working for a Spanish or German employer, for whom you would continue working in Belgium, and paying social security contributions. If this is not the case, neither the Spanish nor the Germans can issue form A1. Then the Belgian authorities would have to examine whether you are subject to obligatory social security in Belgium. 

Even if your income is over the limit for mandatory health insurance, the company health insurance scheme is obliged to take you on again if you start working in Germany up to two months after your return or if you were insured for at least 24 months out of the five years prior to leaving the scheme or at least twelve consecutive months immediately before leaving the scheme. This is the case even if your wages upon your return are high enough to allow you to choose between public and private insurance.

According to European Union law, you are required to pay social security contributions in the country in which you are employed, i.e. Germany. In exceptional cases, you can apply to stay in the French social security scheme if you are only staying in Germany for a limited period of time and still have legally-binding relations to a French employer, e.g., you are on leave of absence and have the right to return to your position in France. 

Only people who are employed are obliged to pay social security contributions. Those who have a fellowship are generally not liable to pay social security contributions.

According to the relevant double taxation and social security agreements, on principle, taxes and contributions are payable in the country in which you are employed, i.e. in the USA. However, there are exceptions in matters such as pension schemes for those posted abroad by German employers and taxes on periods of less than six months.

According to the Residence Act, foreign graduates of German universities are entitled to remain in Germany for 18 months to search for employment. Researchers are also able to receive up to 18 months to look for a job. 

Generally, you are eligible for unemployment benefit if you have accrued twelve months' contributions and are available to take up employment on the German employment market. How long you are available to take up employment on the German employment market depends on the length of your residence permit and the type of residence permit you held before applying to become a job seeker. 

The 18-month term according to Section 20 Paragraph 2 of the Residence Act applies to foreigners who have successfully completed studies or research in Germany on the basis of a residence permit to receive academic qualification according to Sections 16b or 16c or following Section 18d. 

On principle, pension contributions paid abroad entitle you to a pension in the country in which they have been paid into the pension scheme. Accrued foreign benefits are only credited to the German qualifying period if the qualifying period for a foreign pension has not been fulfilled and there is a social security agreement with Germany. 

The German statutory pension scheme only applies to people who are in employment. On principle, anyone living on a fellowship is not subject to the German statutory pension scheme. However, if contributions have been paid to the German pension scheme, for example if a fellow has been employed or paid voluntary contributions, citizens of the EU are eligible to have all the contributions recognised that have been paid within the EU. Depending on the duration of contributions, periods during which rights have been accrued will either be taken into account in calculating your pension in your own country or you will receive various proportions of your pension entitlement from different EU states. 

In the case of citizens of third countries, it depends whether a social security agreement has been concluded between Germany and your own country on mutual recognition of accrued rights. If there is no such social security agreement, you are only eligible for a German pension if contributions have been paid to the German pension scheme for at least 60 months. For shorter periods it may be worth applying to have your contributions refunded.

The waiting period for the German pension scheme is 60 months. Therefore, if the period during which contributions are paid lasts less than 60 months, reimbursement may be an option. However, as a result of the provisions contained in Regulations (EC) 883/04 and bilateral social security agreements, it may be advantageous not to touch the German pension contributions. On reaching retirement age, all the pension rights accrued in all the states where one has worked are taken into account. They are not lost. Either the periods during which rights have been accrued are included in calculating the pension entitlement at home, or one receives proportional German and foreign pensions at the same time. 

As you have made contributions to the German pension system for twelve years, you are eligible for a German pension if you have reached pension age. The size of the pension is calculated individually during the authorisation process. Apart from the amount and number of monthly contributions made, factors which may affect the size of the pension include periods which contribute to working periods, though no contributions were paid during them, such as education, child-rearing or unemployment. 

Periods of childcare abroad are recognised by the German statutory pension scheme if the parent responsible for the child care or their spouse paid the required contributions into the German statutory pension scheme with respect of work carried out abroad, immediately prior to or during the period of child care. 

If this is not the case, then periods of child care abroad can still be recognised if the parent responsible for the child care or their spouse still maintains employment relations with a German employer during the period of work abroad. An example of this may be a dormant employment relationship or leave of absence. 

The same is true in the event that the reason the spouse did not make the required contributions was because, for instance, he or she was exempted from the requirement to join the statutory pension scheme due to their status as a civil servant. 

Applications for the recognition of child care periods should be submitted to the German Federal Pension Insurance (Deutschen Rentenversicherung) on form V800. 

On principle, the child must be resident in its own country or - under certain circumstances - in a Member State of the EU or the European Economic Area. If a child is studying abroad child allowance may be paid in exceptional cases provided the child continues to be resident with its parents in Germany and uses their home outside term time. 

The authority responsible is the "Familienkasse" (Family Office) at the Federal Employment Agency in the place where you are registered. 

The question as to which of several places of residence is considered the principal place of residence is only relevant under German law if a resident maintains several residences within Germany. Residences abroad are not taken into consideration. If a person with a residence abroad maintains only one residence in Germany, this residence is considered his or her only and thus principle domestic residence. 

In this case, you will maintain one German residence for the duration of your stay abroad, which means you do not need to end or transfer your registration or have your identity card changed. The case would be different if you were to give up your domestic residence for the duration of your research stay. In this case you would have to notify the authorities of your departure and your identity card would be marked with: "Kein Wohnsitz im Inland" (No domestic residence). 

Fellowships in Germany are often considered cash benefits, which are exempt from taxation under certain preconditions. Non-cash benefits do not fall into this category. If accommodation is provided free of charge, the value may play a role in assessing whether the fellowship is exempt from tax because the fellowship may be worth more than is necessary to fulfil the research task or cover the necessary costs of living and training.

The 183-day rule then loses its validity retroactively. In the respective tax year, the foreigner has to pay tax on his indigenous earnings in that country from the first day of his stay, i.e. for the first 183 days, too. On proof of having paid tax in the one country, the foreigner will either be exempt from paying tax in his own country or it will be credited for this period.

Many, but not all double taxation agreements Germany has concluded with other states include special regulations exempting certain teaching and research activities that are carried out over a limited period of time from taxation in the country in which they are carried out, or allocating the right of taxation to the country of residence. In most agreements, the special regulation only applies to a stay lasting no longer than two years. The various special regulations differ significantly so that it is not possible to make any across-the-board statements; each agreement has to be examined individually: in some cases, the taxpayer must be a teacher or higher education teacher, in others not.

There are differing criteria determining which teaching and research activities and which institutions are covered by the special regulation. In some cases, the special regulation only applies to payments not originating in the country in which the work is carried out. Questions about whether teaching or research activities are covered by the special regulation should be discussed individually with the responsible tax authorities at the beginning of the stay abroad. They will examine whether the pre-conditions for applying the special regulation have been fulfilled. If they have, a tax exemption will be confirmed and it will be determined to what extent income tax will be deducted in the country of domicile rather than in the country in which the work is carried out. Even in cases where tax exemption may exist, some countries still require tax returns to be submitted. In the context of the income tax return, the proportion of income covered by the special regulation must be specifically declared.

Article 20, paragraph 1 of the German-American Double Taxation Agreement grants the right of taxation for the salary of an American university professor at a German research institution to the United States if the research stay does not exceed two years and is in the public interest, i.e., not first and foremost in the interest of private individuals or firms. To this extent, salaries are exempt from taxation in Germany. Whether or not the German institution contributes to the costs of research work is irrelevant in terms of tax law. The two-year period begins on the day you enter the country in order to embark on research work.

On principle, only employers who have an establishment or representation in Germany are required to run a PAYE scheme. If your research institute is not represented in Germany, the researcher is responsible for paying his or her own income tax.

According to the relevant double taxation and social security agreements, on principle, taxes and contributions are payable in the country in which you are employed, i.e. in the USA. However, there are exceptions in matters such as pension schemes for those posted abroad by German employers and taxes on periods of less than six months.

According to the German-American double taxation agreement, the right of taxation lies with the state of residence, i.e. Germany. The United States would only have the right of taxation if a second office or laboratory were set up for you in the United States and you were to carry out contracted research there, too.

It must be decided whether the amount paid by the employer is judged to be a fellowship or wages in terms of American and German tax law. According to the German-American double taxation agreement, on principle, fellowships are exempt from taxation during the period spent in the USA. Wages have to be declared for tax in the USA on principle. However, in exceptional cases, the right of taxation may lie with the German side if the employee is a school or higher education teacher, if he/she is staying at a recognised university, institution of higher education, school or other teaching establishment, or a public research institute, or another institute for research work in the USA for the purpose of continuing his/her studies, carrying out research work, or employment as a teacher, and if the stay in the USA is restricted to a maximum period of two years and the work there is considered to be in the public interest.

In many host countries you are eligible for tax relief on fellowships, just like in Germany. Furthermore, most double taxation agreements include a regulation that certain fellowships from foreign sources are not liable for taxation in the host country.