The visa for self-employed managing directors

It has been possible for a foreigner or „non-EU citizen“ to be appointed as managing director of a GmbH domiciled in Germany since 2008 and the accompanying amendment of GmbH law by the Act to Modernise GmbH Law and Combat Abuses (MoMiG). It is not necessary for the managing director to be able to enter the country at any time, as the managing director can also conduct the company’s business from abroad.

Criteria for acquiring a residence permit according to § 21 paragraph 1 Residence Act

The acquisition of a residence permit is therefore possible for self-employed persons under Section 21(1) of the Residence Act. As a rule, self-employed entrepreneurs are granted a residence permit if positive economic effects are to be expected from the investment project and the financing is secured. To this end, the investment project must meet the following requirements:

• there must be an economic and/or regional interest
• the investment project must be expected to have a positive impact on the economy
• financing must be secured (either by means of equity or loan commitment)

Furthermore, section 21(3) of the Residence Act requires additional proof of the existence of sufficient old-age provision if the applicant is older than 45. This means that the applicant must be able to dispose of either a monthly pension amounting to 1,340.47 euros or assets amounting to 195,104.00 euros in perspective upon reaching the age of 67. The following nationalities are exempt from the proof: Turkey, Dominican Republic, Indonesia, Japan, Philippines, the United States of America and Sri Lanka. However, it should be noted that the documents should still be available, because the authorities usually insist on them anyway.

The local foreigners authority assesses the individual case with the help of the chambers of industry and commerce and the business development agency. The authority decides whether the above characteristics are fulfilled on the basis of the following criteria:

• the viability of the business idea
• the curriculum vitae and entrepreneurial experience of the self-employed person
• the amount of capital invested
• the impact of the project on the regional and national employment and training situation
• the expected contribution to innovation, research and development in Germany.

Who is „self-employed“ according to § 21 paragraph 1 of the Residence Act?

Foreign entrepreneurs are considered self-employed if they carry out one of the following activities:

• Sole proprietors (incl. freelancers)
• Partners of a partnership
• Managing partners of a limited liability company who are not employees
• Managing directors or executives with procuration or general power of attorney who bear an entrepreneurial risk themselves.

Issuing the residence permit

Self-employed entrepreneurs first receive a national visa from the German embassies, which is used to enter Germany. The residence permit is then issued in Germany after entry by the locally responsible foreigners authority. The residence permit for self-employed persons is limited in time, usually up to three years. If the investment project is successful and appears to continue to be successful and secure a livelihood, an unlimited settlement permit can be applied for after three years.

Conclusion

As a self-employed person, you benefit from the reduced bureaucratic burden that usually accompanies the application for other residence titles. Nevertheless, it is essential to carefully prepare the necessary documents (especially business plan, curriculum vitae and securing financing). If you have any questions or need help in this regard, a lawyer will be able to advise you competently.

Written by Linda Naomi Henschel

Copyright by Hülya Oruc Aslan

O.Law is a modern and dynamic law firm working in cooperation with highly motivated, professionals offering legal advice in the heart of Dusseldorf. We are characterized by our cooperation with a tax advisor and a network of lawyers in Eastern Europe.

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Attorney at Law Hülya Oruç Aslan, LL.M.

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