Definition: What is “employment” in the context of residence law?

In the German Residence Act (AufenthG), the term " employment " plays a central role – especially for foreign skilled workers . It refers to non-self-employed work , such as that carried out in a traditional employment relationship . This is regulated in Section 7 of the Social Code (SGB IV) : Accordingly, employment exists when someone works according to instructions and is integrated into an employer's work organization. In-company vocational training also counts as employment.

When is there no employment?

However, not every activity for a third party automatically constitutes employment under the Residence Act. For example, short-term activities by business travelers are exempt (so-called "fictitious non-employment" ). Volunteer work or work performed purely as a favor—for example, among relatives—are also not considered employment under the Residence Act. The decisive factor is always the individual case: Is there any consideration? Is there a relationship of dependency?

Favor or gainful employment? The difficult distinction

Many everyday situations raise legal questions. If a foreign guest helps out in the household, this does not automatically constitute gainful employment. The decisive factor is whether the assistance is based on a legal obligation and whether something in return – such as food and lodging – is provided. This distinction is particularly sensitive in the case of family members, as in these cases there is often no intention to earn a living, but rather the assistance is provided to a family member. If spouses or children help out in the family business, this does not automatically constitute employment. Here, too, it must be examined on a case-by-case basis whether this constitutes paid work subject to instructions.

Remuneration doesn't always have to be in cash – benefits in kind such as free accommodation or meals can also count as "remuneration ." This is the case, for example, with au pair stays . Even if charitable work doesn't involve traditional payment, it can still be considered gainful employment. An exception applies if it is merely compensation for additional expenses.

Conclusion: Employment is not the same as employment

In immigration law, "employment" is a precisely defined term with far-reaching consequences (requiring a permit!). It is important for both employers and foreign skilled workers to know when an activity requires a permit – and when it does not. This depends not only on the employment contract, but also on the specific relationship between the parties involved. If in doubt, legal advice should always be sought.