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Hi dear Wefugees comunity, it's been three years that i am an asylum seeker in Germany, my apealing once has been rejected, and waiting for the court process, But already i am working in IT feild and normally people with visa in my situation can apply for blue card, it is a demanded job in Germany and it's in Blue card category, my work contract passes all Blue card's circumstances.

In regard of my situation i wanted to know if there is any exception that i can change my status to something, i can work and live with lower stress. i'm tired of living every day with this trauma, that they stop renew my work permit.

i will be gratefull for your answer in advance.
asked Dec 24, 2018 in Asylum proceedings by Nader
retagged Jan 4 by Nader
Dear @Nader, Welcome to the Wefugees community. I'm sorry to hear about your situation and can understand that the proceeding is very stressful. To provide you with some legal advice, I will link our asylum law expert @Nilab here, she will get back to you shortly (maybe in a few days due to the Holidays!). While you wait, here is some information on what is required to apply for a Blue card: https://www.wefugees.de/102282/how-can-get-blue-card-what-are-the-requirements-and-advantages All the best, Isa

Hi @Isa thanks for your reponse, and sharing the information, in fact i understand almost the requierment of Blue card application, i have co workers with the same contracts they have their Blue but they came here to Germany with working visa, There might be some exception that i can change asylum status to something else i don't mean exactly blue card. i'll wait for @Nilab comment on my case.

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4 Answers

+1 vote

Dear @Nader,

Thank you for waiting so far!

I have had another look to see if I find different sources, and came across a question answered by BAMF: 

"Is the change to a Blue Card from a different Aufenthaltstitel (residence permit/ legal permission to stay) possible?"

The answer from BAMF is: 

Grundsätzlich ist ein Wechsel von einem anderen Aufenthaltstitel zur Blauen Karte EU möglich. Sobald die Bedingungen der Blauen Karte EU erfüllt werden, besteht ein gesetzlicher Anspruch.

In English that means: Generally, switching from a different type of residence permit/ permission to stay to a EU Blue Card is possible. As long as the necessary requirements (eligibility for the EU Blue Card) are fulfilled, you have a legal right to get it.The website further mentions you do not have to leave the country in order to apply.

German Source: http://www.bamf.de/DE/Infothek/FragenAntworten/BlaueKarteEU/blaue-karte-eu-node.html

As far as I understand it, you need to have a permission to stay in the country in order to change your status to a EU Blue Card. Being granted a protection status (see the BAMF site for the types of protection) automatically gives you a permission to stay - a residence permit. However, you mentioned last time that your asylum procedure is still going?

Please see this website for information on who can and how to apply for a EU Blue Card in Germany. Follow this link.

Let me know if you have any more questions.

All the best,

Isa

answered Jan 2 by Isa
0 votes

Hi @Isa

Many thanks for your time and answer, Unfortunately i don't have any kind of protection yet, and my asylum is still proceeding, i have Aufenthalsgestattung (permission to reside). I searched about the issue i will bring some imortant links and informations below that might be helpfull for all.

in this page Access to the labour market for refugees BAMF mentioned: 

Does taking up employment or vocational training lead to a residence title being issued?

Persons with permission to reside do not receive a separate right of residence when they take up employment or training. The individual’s efforts towards becoming integrated are not taken into account when considering the asylum application with regard to granting protection under the law on asylum.

When it comes to persons with temporary suspension of deportation status, by contrast, the individual circumstances and efforts towards integration are taken into account when extending temporary suspension of deportation and issuing a residence title.

____________________________________________________________________________________________________

Also BAMF published a cheat sheet on it's website in English and German about changing the status wich are available in the likns below, in this booklet, it's considered in some exceptions it's possible to change the asylum status to high qualified worker or employment, those are not cleare to me, i wanted to know in what circumstances it's possible. 

Opportunities to change the residence title and the purpose of stay in Germany

Wechsel zwischen Aufenthaltstiteln und Aufenthaltszwecken in Deutschland

page 28-29 

Exceptions and exclusions on changing from one of the following purposes of stay into another one: 

 Unless persons who have filed an application for asylum are legally entitled to a residence title, they may only be granted a residence title prior to the legally valid completion of the asylum procedure “with the approval of the supreme Land authority, and only when vital interests of the Federal Republic of Germany so require” (Section 10 subs. 1 of the Residence Act). In the last two cases the applicants may only be issued with a residence title for reasons of international law or on humanitarian or political grounds, “for example under the right to stay pursuant to Section 23 subs. 1 or in case of a positive ruling by the hardship commission of the Land government or the senate” (no. 10.3.1. of the General Administrative Regulation on the Residence Act). If an asylum application is rejected as being manifestly unfounded (Section 30 subs. 3 nos. 1 to 6 of the Asylum Procedure Act), no residence title may be granted before the third-country national has to leave Germany. If a third-country national applies for asylum, a potential exemption from the obligation to hold a residence title and an existing residence title with an overall validity of up to six months shall be cancelled. However, an existing residence title with an overall validity of more than six months shall remain unaffected (Section 55 subs. 2 of the Asylum Procedure Act). Moreover, the foreigners authority may extend a residence title despite the application for asylum, provided that the conditions are still met (Section 10 subs. 2 of the Residence Act). 

page 31-32  table

Legal basis and granting prerequisites for status changes :

Asylum application/procidure change to Highly qualified worker

(legal basis: Sec. 18 subs. 4, 18b, 18c, 19 of the Residence Act In case of asylum applicants only in exceptional cases with the approval of the supreme Land authority (Sec. 10 subs. 1 of the Residence Act) ).

Asylum application/procidure change to Employment

(legal basis: Sec. 18, 18a of the Residence Act; in case of asylum applicants only in exceptional cases with the approval of the supreme Land authority (Sec. 10 subs. 1 of the Residence Act); no switch possible if current residence title already entitles holder to economic activity, e. g. Sec. 28 subs. 5, Sec. 29 subs. 5 or Section 31 subs. 1 of the Residence Act).

answered Jan 3 by Nader
edited Jan 4 by Nader
0 votes

Act on the Residence, Economic Activity and Integration of Foreigners in the Federal Territory

Sec. 10 subs. 1 of the Residence Act: 

In the absence of a legal entitlement, a foreigner who has filed an application for asylum may be granted a residence title prior to the legally valid completion of the asylum procedure only with the approval of the supreme Land authority, and only when vital interests of the Federal Republic of Germany so require.

Sec. 18 subs. 4 of the Residence Act: 

 A residence title for the purpose of taking up employment pursuant to subsection 2 which requires a vocational qualification may only be issued for employment in an occupation which has been approved by virtue of a statutory instrument in accordance with Section 42. In justified individual cases, a temporary residence permit may be issued for the purpose of taking up employment when there is a public interest, and in particular a regional, economic or labour market interest.

Sec. 18 b of the Residence Act: 

A foreigner who has successfully completed his studies at a state or state-recognised university or a comparable educational institution in the federal territory shall be granted a permanent settlement permit, if

1.  he has held a residence title pursuant to Sections 18, 18a, 19a or 21 for two years,

2.  he has a job commensurate with his degree,

3.  he has paid compulsory or voluntary contributions into the statutory pension scheme for at least 24 months or furnishes evidence of an entitlement to comparable benefits from an insurance or pension scheme or from an insurance company, and

4.  the requirements of Section 9 (2), sentence 1, nos. 2 and 4 to 9 are met; Section 9 (2), sentences 2 to 6 shall apply accordingly.

Sec. 18 c of the Residence Act: 

(1) A foreigner with a German or a foreign higher education qualification which is recognised or otherwise comparable to a German higher education qualification and whose subsistence is secure may be granted a temporary residence permit for the purpose of seeking a job commensurate with this qualification for a period of up to six months. The residence permit shall not entitle the holder to pursue an economic activity.

(2) The temporary residence permit may not be extended beyond the maximum period mentioned in subsection 1. A temporary residence permit pursuant to subsection 1 may only be issued anew if the foreigner, after leaving Germany, stayed abroad for at least as long as he stayed in the federal territory on the basis of a residence title pursuant to subsection 1.

(3) Subsection 1 shall apply to foreigners already residing in the federal territory only if they possessed a residence title for the purpose of employment immediately before they were granted a temporary residence permit pursuant to subsection 1.

Sec. 19 of the Residence Act: 

(1) A highly qualified foreigner may be granted a permanent settlement permit in special cases if if the Federal Employment Agency has granted approval in accordance with Section 39 or it has been determined by statutory instrument pursuant to Section 42 or by intergovernmental agreement that the permanent settlement permit may be granted without approval from the Federal Employment Agency in line with Section 39 and there is reason to assume that integration into the way of life in the Federal Republic of Germany and the foreigner's subsistence without state assistance are assured. The Land government may stipulate that issuance of the permanent settlement permit pursuant to sentence 1 requires the approval of the supreme Land authority or a body designated by it.

(2) Highly qualified persons in accordance with subsection 1 are, in particular,

1.  researchers with special technical knowledge or

2.  teaching personnel in prominent positions or scientific personnel in prominent positions.

Sec. 28 subs. 5 of the Residence Act:

repealed

Sec. 29 subs. 5 of the Residence Act: 

repealed

Sec. 31 subs. 1 of the Residence Act: 

 In the event of termination of marital cohabitation, the spouse’s temporary residence permit shall be extended by one year as an independent right of residence unrelated to the purpose of the subsequent immigration of dependants if

1.  marital cohabitation has lawfully existed in the federal territory for at least three years or

2.  the foreigner has died while marital cohabitation existed in the federal territory

and the foreigner possessed a temporary residence permit, permanent settlement permit or EU long-term residence permit up to this point in time, unless he was unable to apply for an extension in time for reasons beyond his control. Sentence 1 shall not apply if no extension of the foreigner’s temporary residence permit is permissible or if it is not permissible to issue the foreigner a temporary residence permit or EU long-term residence permit because this is precluded by a rule of law on account of the purpose of residence or by a subsidiary provision attaching to the temporary residence permit pursuant to Section 8 (2).

____________________________________________________________________________________________________

As you see it's just complicated.

Respectfully 

answered Jan 3 by Nader
edited Jan 3 by Nader
0 votes

Important section:

Sec. 18 of the Residence Act: 

(1) The admission of foreign employees shall be geared to the requirements of the German economy, according due consideration to the labour market situation and the need to combat unemployment effectively. International treaties shall remain unaffected.

(2) A foreigner may be granted a residence title for the purpose of taking up employment if the Federal Employment Agency has granted approval in accordance with Section 39 or it has been determined by statutory instrument pursuant to Section 42 or by intergovernmental agreement that such employment may be taken up without approval from the Federal Employment Agency. Any restrictions imposed by the Federal Employment Agency in granting approval must be specified in the residence title.

(3) A temporary residence permit for the purpose of taking up employment pursuant to subsection 2 which does not require a vocational qualification may only be issued if regulated by an intergovernmental agreement or if issuance of approval for a temporary residence permit for the said employment is permissible by virtue of a statutory instrument in accordance with Section 42.

(4) A residence title for the purpose of taking up employment pursuant to subsection 2 which requires a vocational qualification may only be issued for employment in an occupation which has been approved by virtue of a statutory instrument in accordance with Section 42. In justified individual cases, a temporary residence permit may be issued for the purpose of taking up employment when there is a public interest, and in particular a regional, economic or labour market interest.

(4a) Foreigners in a civil servant relationship with a German employer shall be granted a temporary residence permit to discharge their official duties in the federal territory. The temporary residence permit shall be granted for three years, unless the employment is limited to a shorter period. After three years, a permanent settlement permit shall be granted, by derogation from Section 9 (2), sentence 1, nos. 1 and 3.

(5) A residence title pursuant to subsection 2 or Sections 19, 19a, 19b or 19d may only be granted if a concrete job offer exists and if any legally prescribed professional licence has been granted or promised.

(6) The granting or extension of a residence title pursuant to subsection 2, Sections 17b, 18d, 19, 19a, 19b, 19d, 20 or 20b, which does not require approval by the Federal Employment Agency owing to provisions in this Act, in a statutory instrument or an intergovernmental agreement, may be denied if there are grounds that would allow the authorities to deny the necessary approval pursuant to Section 40 (2) no. 3 or subsection 3.

Sec. 18 a of the Residence Act: 

Temporary residence permit for the purpose of employment for qualified foreigners whose deportation has been suspended

(1) A foreigner whose deportation has been suspended may be granted a temporary residence permit for the purpose of taking up employment commensurate with his vocational qualification if the Federal Employment Agency has granted approval in accordance with Section 39, and the foreigner

1.  

a)  completed a vocational qualification in a state-recognised or similarly regulated occupation in the federal territory which requires formal training or a course of study at a higher education institution, or

b)  held a position of employment continuously for two years in the federal territory with a foreign higher education qualification which is recognised or otherwise comparable to a German higher education qualification and which is appropriate to that employment, or

c)  held a position of employment as a skilled worker continuously for three years in the federal territory which requires a vocational qualification and has not relied on public funds for his subsistence and that of his dependants or other members of his household within the year preceding the application for the temporary residence permit except for payments to cover the necessary costs for accommodation and heating, and

2.  has sufficient living space at his disposal,

3.  has sufficient command of the German language,

4.  has not wilfully deceived the foreigners authority as to circumstances of relevance to his situation under residence law,

5.  has not wilfully delayed or obstructed official measures to end his residence,

6.  does not have any links to extremist or terrorist organisations and does not support such organisations and

7.  has not been convicted of an offence wilfully committed in the federal territory; fines totalling up to 50 daily rates or up to 90 daily rates in the case of offences which, in accordance with the Residence Act or the Asylum Act, can only be committed by foreigners shall be ignored as a general principle.

(1a) Where deportation has been suspended pursuant to Section 60a (2), sentence 4, a temporary residence permit must be granted for a period of two years after the foreigner has successfully concluded this vocational training for employment commensurate with the professional qualifications acquired if the conditions referred to in subsection 1 nos. 2 to 7 are met and the Federal Employment Agency has granted approval in accordance with Section 39.

(1b) A temporary residence permit issued pursuant to subsection 1a shall be revoked if the employment relationship on which the issuance of the temporary residence permit was based is terminated for reasons relating to the person of the foreigner or if the foreigner has been convicted of an offence committed intentionally in the federal territory; fines totalling up to 50 daily rates or up to 90 daily rates in the case of offences which, in accordance with the Residence Act or the Asylum Act, can only be committed by foreigners shall be ignored as a general principle.

(2) The approval of the Federal Employment Agency pursuant to subsections 1 and 1a shall be decided without an examination of priority pursuant to Section 39 (2), sentence 1, no. 1. Section 18 (2), sentence 2 and (5) shall apply accordingly. The temporary residence permit shall entitle the holder to take up any employment after he has been in an employed position commensurate with his vocational qualification for a period of two years.

(3) The temporary residence permit may be granted by derogation from Section 5 (2) and Section 10 (3), sentence 1.

answered Jan 3 by Nader
Dear @Nader, Thank you for sharing all of these very important and detailed sources! I'm sure they will be helpful for other people who ask themselves the same question :-) Kind regards, Isa
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