Legal Reform of the Red-White-Red-Card

 After months of waiting, an important reform is about to take place, effective 1 October 2022. The new legal reform of the Austrian Act on the Employment of Foreign Nationals (“Ausländerbeschäftigungsgesetz” – AuslBG) and the Settlement and Residence Act (“Niederlassungs- und Aufenthaltsgesetz" – NAG) will take effect. What will specifically change for companies in Austria which (want to) employ international skilled workers as well as for these skilled employees and their families? What follows are the most important new developments, explained on the basis of examples.

What will improve for employers? 

Companies in Austria aiming to employ third country nationals (i.e., people who are not citizens of an EU/EEA member state or Switzerland), can look forward to a large number of simplifications beginning on 1 October 2022.

On the one hand, the application process for a Red-White-Red – Card (“Rot-Wei-Rot – Karte”) or an EU Blue Card (“Blaue Karte EU”) will be completed by Austrian authorities more quickly in the future than in the past.

On the other hand, lower minimum salaries apply:

• Up until now, an application for an EU Blue Card could only be approved if the minimum annual gross salary of € 66,593 is actually paid. The reform reduces this minimum gross salary to € 44,395 annually.
• Up until 30 September 2022, the Red-White-Red – Card for Other Key Workers (“Rot-Weiß-Rot-Karte für Sonstige Schlüsselkräfte”) recognised two minimum salaries i.e., one for people below the age of 30 and one for skilled workers 30 and older. The reform eliminates the higher minimum salary for skilled workers above the age of 30. This means that a minimum gross monthly salary of € 2,835 applies for this type of Red-White-Red – Card, regardless of the person’s age, as of 1 October 2022.
• Up until now, the Red-White-Red – Card for Graduates (“Rot-Weiß-Rot – Karte für StudienabsolventInnen”) was only issued if the individual received a monthly gross salary of at least € 2,551.50. This prerequisite no longer applies. Accordingly, the salary for this sub-category of the Red-White-Red – Card must only correspond to the respective applicable collective agreement and common local practices.

Furthermore, the revised laws provide employers with two new options for the long-term employment of international skilled workers:

• The brand-new subcategory of the Red-White-Red – Card valid as of 1 October 2022, the so-called Red-White-Red – Card for Regular Seasonal Workers (“Rot-Weiß-Rot – Karte for Stammmitarbeiter”), will be attractive for companies who now want to employ people who were previously seasonal workers for an indefinite period. Even the labour market test (“Ersatzkraftverfahren”) is no longer necessary!
• Up until now, IT specialists who did not complete IT studies could only be employed on the basis of the Red-White-Red – Card for Other Key Workers: The current legal reforms now stipulate that IT specialists can also receive an EU Blue Card if they have at least three years of recognised professional experience in their specific area and fulfil other prerequisites.

For employers with several branch offices in the EU, the secondment (“Entsendung”) of skilled workers within the EU who possess a valid EU Blue Card will be simplified as of 1 October 2022, as long as their business activity does not exceed a period of 90 days.

What will improve for skilled workers (and thus for their employers in Austria)? 

Skilled workers who are third-country nationals and who have a binding job offer from a company in Austria will enjoy several improvements thanks to reformed legislation. This includes facilitating their immigration to Austria and an attractive permanent residence in Austria.

First of all, the Red-White-Red – Card and its various subcategories for certain employed skilled workers (Red-White-Red – Card for Other Key Workers, Red-White-Red – Card for Skilled Workers in Shortage Occupations (“Rot-Weiß-Rot – Karte für Fachkräfte in Mangelberufen”) and the Red-White-Red – Card for Very Highly Qualified Workers (“Rot-Weiß-Rot – Karte für Besonders Hochqualifizierte”) will be designed to be more easily available as of 1 October 2022, especially with regard to the point system:

• It is no longer necessary to submit birth certificates as part of the application process.
• The recognised language certificates applying to all of the three above-mentioned subcategories will be valid for a period of 5 years starting when the new law takes effect, compared to a period of only 1 year as in the past. For example, if a skilled worker presents an English language certificate in October 2022 which was issued in 2018, it will still be considered as valid. In contrast, this has not been possible up until now.
• Professional experience in all three subcategories is now recognised on a half-year basis (instead of on an annual basis as in the past). This change means that if a skilled worker could show 2.5 years of professional experience up until now, he was only given 4 points in the respective point system (2 points for every fully completed year), which only recognised entire years of professional experience. Starting at the time the new law enters into force, the skilled worker in this example will now be given 5 points, i.e., 1 point for every half-year of relevant work experience.
• In the case of applications for the Red-White-Red – Card for Other Key Workers and the Red-White-Red – Card for Skilled Workers in Shortage Occupations, the skilled worker is given 5 additional points if she or he can show English language competence and English is verifiably the company language. Up until now, this was not a factor considered in awarding points!

Furthermore, several subcategories of the Red-White-Red – Card have been upgraded:  

• With respect to the Red-White-Red – Card for Skilled Workers in Shortage Occupations, the differentiation of points granted for tertiary education and vocational training will no longer apply. Up until now, a university education was worth 30 points and a non-university education was given only 20 points. Starting 1 October 2022, the confirmed completion of education in the shortage occupation will be given 30 points in any case. Furthermore, skilled workers who are more 40 years or older but have not yet reached their 50^th birthday at the time the application is submitted will be given 5 points for their age, compared to 0 points granted in the past.
• The Red-White-Red – Card for Other Key Workers will no longer require the potential employee to demonstrate professional experience in line with their specific education as of 1 October 2022. More specifically, this means that the skilled worker will now be granted points for relevant professional experience which is not directly associated with her or his particular education or training. For example, if a skilled worker studied philosophy at a university but gained professional experience as a financial analyst, this experience can be recognised in the future. This was not the case in the past.

The reformed law has also made improvements to the EU Blue Card in addition to the previously mentioned changes in salaries, IT-specific rules and secondment:

• Skilled workers who work in Austria for at least 1 year with an EU Blue Card and then (for whatever reason) lose their jobs or want to change jobs, are permitted to accept a new suitable full-time job in Austria and already begin work with the new company, even if the procedure of the Change of Immigration Status (“Zweckänderungsverfahren”) for the “new” EU Blue Card has not yet been concluded. In this case, a labour market test is also no longer necessary!
• Skilled workers who work in Austria for less than 1 year with an EU Blue Card and then (for whatever reason) lose their jobs or want to change jobs, can already begin to work for the new company 30 days after submitting an application for the procedure of the Change of Immigration Status even if this process for the “new” EU Blue Card has not been concluded. 
• Skilled workers who work in Austria on the basis of possessing an EU Blue Card and then (for whatever reason) lose their jobs or want to change jobs are given six months to look for a new job in Austria. They do not have to leave the country immediately!

Moreover, as of 1 October 2022, the following simplifications have been implemented for all skilled workers who could potentially be given any Red-White-Red – Card (“Other Key Workers”, “Skilled Workers in Shortage Occupations”, “Very Highly Qualified Workers”, “Graduates” and "Regular Seasonal Workers"):

• Up until now, proof of temporary accommodation had to be presented for all the above-mentioned residence permits except for the EU Blue Card. As of 1 October 2022, this is no longer necessary, but only if the skilled worker immigrates to Austria without her or his family. If the family comes along to Austria, proof of long-term accommodations must still be presented when the applications are submitted for the family.
• Self-employment (“selbstständige Erwerbstätigkeit”) in Austria is permitted in addition to full-time work if certain prerequisites are fulfilled. This has not been possible up until now.

What will improve for families of skilled workers (and thus also for the skilled workers and their employers in Austria)? 

The reform of existing regulations will also bring several changes for families of skilled workers:  

In particular, the new option that employers can submit applications for a residence permit, not only for the skilled worker but also for her or his family (spouse, registered partner, underage children) simultaneously, means that families will ideally be able to immigrate to Austria at the same time and not with a time delay, as in the past.

In addition, the period of validity of family residence permits will be adjusted to the validity of the skilled worker's residence permit. This means that starting on 1 October 2022, Red-White-Red – Cards Plus for family members of individuals with Red-White-Red – Cards will be valid for up to two years and will not have to be extended after one year, which was standard practice in the past. Up until now, this rule only applied to family members of EU Blue Card holders.

Once the new law takes effect, family members of EU Blue Card holders also have the (voluntary) option of directly submitting their application for the Red-White-Red – Card Plus to the Immigration and Residence Authority directly in Austria as long as they are legally in Austria (e.g., with a Visa C or Visa D).

What else will change?

Last but not least, we are also extremely pleased on our own account! Thanks to the reform, the consulting and advisory activities of the Immigration and Residence Services at the Austrian Business Agency in connection with procedures relating to residence permits are now enshrined in law!