Work permit for management board members and commercial proxies in Polish companies under the new rules
The draft of the new act on employment of foreigners, published on the website of the Government Legislation Center, aims to reduce administrative barriers and streamline procedures related to the legalization of work of foreigners in Poland. It is one of the stages of the implementation of the so-called milestone of the National Reconstruction Plan “A4.1 Effective institutions for the labor market”.
A work permit for a member of the management board
Among the many changes introduced, art. 36 of the draft, which somehow legalizes the current practice of some voivodes when issuing type B work permits, i.e. those permits that allow a foreigner to act as a member of the management board, commercial proxy or to conduct the affairs of a limited partnership or limited joint-stock partnership or to represent such a company.
Expiry date of permits
In accordance with the content of this proposed provision, a work permit in connection with the performance of a specific function is issued for a specified period of time not longer than 1 year, if the employing entity conducts economic activity [including in the form of a capital company and a partnership] in the territory of Poland:
- for less than 1 year, or
- does not meet any of the following conditions:
- achievement by the company on the day of submitting the application of income not lower than 12 times the average monthly salary in the voivodship, announced by the President of the Central Statistical Office, or
- employment by the company for an indefinite period and full-time at least two employees, who are Polish citizens or citizens of Great Britain, or foreigners who may be employed by the employer without a work permit (specific categories, although not numerous, are given in the text of the act).
In connection with the above, the authors of the draft intend to significantly limit the possibility of legalizing the employment of foreigners in managerial positions in newly established companies and in companies that have existed for a long time, but still do not meet the income criteria or create jobs for Polish citizens or people permanently residing in Poland.
In the latter case, so far employers have usually submitted business plans proving that one of these two criteria will be met in the future. In such cases, some voivodes issued work permits limiting their validity period to 1-2 years, so that after this period and after submitting an application for a similar work permit for another period, they could analyze the previously submitted business plan and determine to what extent the company has implemented its assumptions. At the same time, this practice was not based on any specific legal provision and was not common.
With the adoption of the new act, the situation will change not in favor of foreigners. Considering the current duration of the procedures for issuing work permits, which sometimes reaches 12 months, the option of legalizing the stay and work in Poland on the basis of business activity or performing functions on the company’s management boards will not be so attractive in the case of new companies or companies conducting a small-scale activity.
The special situation of Ukrainian citizens
The above-described plans of the legislator currently apply to Ukrainian citizens to a lesser extent, due to the Act on assistance to Ukrainian citizens in connection with an armed conflict in the territory of that country, adopted in March 2022.
The provisions of this law made it possible for Ukrainian citizens to perform work without the need to obtain work permits, provided that the competent employment office was notified of the employment of a Ukrainian citizen within 14 days of commencement of work. In many cases, this will also apply to Ukrainian citizens holding positions in company boards and proxies, provided that they are employed on the basis of an employment contract or contract of mandate.
Our lawyers specializing in Polish immigration law will help you obtain work permits for foreign employees and fulfill other obligations related to the legalization of stay or work in Poland.
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