Managing Employee Work Authorization Delays with Germany’s Fictional Permit System

Yes, employees can continue working legally during residence permit processing through Germany's fictional permit (Fiktionsbescheinigung) system. When a residence permit application is submitted before visa expiration, the fictional effect automatically applies, allowing continued employment. If additional documentation is needed, employers can request a formal fictional certificate from the immigration office as proof of work authorization. For employees planning to leave Germany after their notice period, this approach provides sufficient legal coverage without requiring alternative visa applications like the Opportunity Card.

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Context & Background

An international employer in Germany faced a common compliance dilemma: their foreign employee had submitted a residence permit renewal in Leipzig but had yet to receive a decision or appointment date. Meanwhile, the employee had resigned and was serving a three-month notice period, but their visa was due to expire mid-way through it. The company needed assurance that the employee could continue working legally until their departure.

The Challenge

The HR department was uncertain about:

• Whether the employee could legally continue working after the visa expiry date.
  
• Whether a Fiktionsbescheinigung could be issued even though the residence permit application was still awaiting processing.
• What proof was required to satisfy internal compliance and immigration authorities during the transition.
  

Applicable Regulation: Fiktionswirkung

Under Section 81(3) and (4) of the German Residence Act (Aufenthaltsgesetz), the fictional effect (Fiktionswirkung) takes immediate effect once a residence permit renewal application is submitted before the current visa expires. This effect extends both lawful residence and employment rights until the immigration office issues a decision.This applies even if the Fiktionsbescheinigung document has not yet been physically issued. The email confirmation or application receipt can temporarily serve as proof while awaiting the appointment.

The Outcome

In this particular case, since the residence permit renewal was submitted before the visa expiry, the employee was considered to be legally resident and authorized to continue working under the fictional effect.

If the employee wished to remain in Germany for job-seeking purposes after employment ends, applying for the Chancenkarte (Opportunity Card) could be the next step. However, since their intention was to leave Germany, obtaining the Fiktionsbescheinigung was sufficient.

Employer and Talent Steps

For Employers (HR Teams):

• Confirm that the residence permit renewal was submitted before visa expiry.
  
• Request a submission receipt or official acknowledgment from the local immigration office.
  
• Inform payroll and compliance teams that the employee remains authorized to work under Fiktionswirkung
• Support the employee in scheduling an appointment to collect the Fiktionsbescheinigung
  

For Talent (Employee):

• Keep copies of all submission documents and communication with the immigration office.
• Continue following up on the Fiktionsbescheinigung issuance.
• If planning to leave Germany post-notice, maintain valid residence status until departure.
  

Key Learnings / Takeaways

• Submitting a residence permit application before visa expiry activates the fictional effect, ensuring lawful residence and work authorization.
  
• HR can rely on submission proof while awaiting the official Fiktionsbescheinigung
• Clear communication between HR, talent, and immigration authorities prevents compliance gaps during notice periods.
• Applying for a Chancenkarte: is optional if talent intends to continue working or job-seeking post-employment.