Intra company transfer directive Copy Copy
EU ICT card / intra-corporate transferee permit
In implementation of the EU Directive on the intra-company transfer (“Directive 2014/66/EU of the European Parliament and the European Council of 15 May 2014 on the conditions of entry and residence of third-country nationals in the framework of an intracorporate transfer”), the so called ICT card (“ICT-Karte”) has recently been introduced effective 1st August 2017, Section 19b – 19d German Residence Act. There are several options available:
- ICT card for stays of more than 90 days (Section 19b German Residence Act)
- notification for short term stays of no more than 90 days (Section 19c German Residence Act)
- mobile ICT card for stays of more than 90 days for applicants holding a ICT card issued by another EU member state (Section 19d German Residence Act)
a. ICT card
The intra-corporate transferee permit or ICT card is a new residence title for third-country nationals who are active as executives, specialists or trainees in a company in another EU country and are sent to a branch of the same group for stays of more than 90 days, cf. (Section 19b German Residence Act). It can be granted if the following conditions are met:
- the branch in Germany belongs to the same company or group of companies as the branch office in the EU country where the applicant is employed;
- the applicant will be employed as a management, specialist or trainee in the receiving branch office in Germany these professional qualifications to be proven;
- the applicant has been previously employed by the company or the group of companies for a continuous period of at least six months;
- the company’s internal transfer takes more than 90 days;
- the Federal Agency for Employment pursuant to Section 39 AufenthG consents to the grant of the ICT card or such consent is not required because of the corresponding activity being exempt from the requirement for authorization and
- the applicant has an employment contract valid for the duration of the envisaged intra-company transfer and, if necessary, a letter of assignment reflecting in particular the conditions of employment (e.g. job location; job title; salary) and the possibility to return after the assignment
The terms “manager”, “specialist” and “trainee employee” are defined as follows by the directive:
‘manager’ means a person holding a senior position, who primarily directs the management of the host entity, receiving general supervision or guidance principally from the board of directors or shareholders of the business or equivalent; that position shall include: directing the host entity or a department or subdivision of the host entity; supervising and controlling work of the other supervisory, professional or managerial employees; having the authority to recommend hiring, dismissing or other personnel action;
‘specialist’ means a person working within the group of undertakings possessing specialised knowledge essential to the host entity’s areas of activity, techniques or management. In assessing such knowledge, account shall be taken not only of knowledge specific to the host entity, but also of whether the person has a high level of qualification including adequate professional experience referring to a type of work or activity requiring specific technical knowledge, including possible membership of an accredited profession;
‘trainee employee’ means a person with a university degree who is transferred to a host entity for career develop
The ICT card may be granted for up to one years to trainee employees and for up to three years to managers or specialists including periods of extension. It card shall not be issued if:
- the host entity was established mainly for the purpose of facilitating the entry of intra-company workers;
- In the context of the transfer, the foreigner will be resident in another EU member state within the framework of the transfer provided for in Directive 2014/66 / EU for longer than in Germany or in another EU member state or
- if the application is submitted before expiry of a six months period from the end of the last stay of the foreigner for the purpose of intra-company transfer to Germany.
b. Short-term intracompany travellers
There is no need for short-term intracompany travellers for a residence title at all for stays of up to 90 days within any 180 days period if the host entity has notified the Federal Office for Migration and Refugees (“Bundesamt für Migration und Flüchtlinge”) of the intention to employ the individual in Germany and has proven respectively presented the following (cf. (Section 19c German Residence Act):
- legal residence title of the individual concerned in another EU member state;
- host entity belongs to the same group of companies than the home entity in another EU member state employing the individual;
- employment contract and assignment letter reflecting in particular the conditions of employment (e.g. job location; job title; salary) and the possibility to return after the assignment and
- a copy of the passport or a suitable replacement.
c. Mobile ICT card
The mobile ICT card (“Mobiler-ICT-Karte”) is a new residence title for third-country nationals entitling the holder of an intra-corporate transferee permit as issued by another EU member state to reside and work in Germany under the terms of the ICT directive if the following conditions are met (cf. (Section 19d German Residence Act):
- the applicant shall be employed as a manager, specialist or trainee,
- the intracompany transfer will take more than 90 days,
- the applicant shall present (a) a contract of employment valid for the duration of the transfer and, if necessary, a letter of assignment reflecting in particular the conditions of employment (e.g. job location; job title; salary) and the possibility to return after the assignment and (b) a proof that the applicant may return to a branch of the same undertaking or group of companies established outside the EU after the end of the transfer and
- the Federal Agency for Employment pursuant to Section 39 AufenthG consents to the grant of the mobile ICT card or such consent is not required because of the corresponding activity being exempt from the requirement for authorization
If the application for the mobile ICT card is made at least 20 days before the start of the stay in Germany and if the residence title of the other EU member state is still valid, the stay and employment of the foreigner of up to 90 days within any 180 days shall be allowed.
The application shall be rejected if it has been submitted in parallel with a notification under the short term ICT visa category. A claim shall also be rejected if the application has been filed during a stay according to § 19c German Residence Act, but not at least 20 days before the end of this stay. Furthermore the mobile ICT card shall not be issued if the foreigner within the scope of intra-company transfers stays in Germany longer than in other EU member states Finally, the application may be rejected if the maximum duration of the intra – company transfer (e.g. up to one years to trainee employees and for up to three years to managers or specialists including periods of extension) has been reached.
The domestic branch office shall be obliged to notify the competent foreigners office of changes to the aforementioned conditions without delay, as a rule within one week.
Cologne, August 2017