In the practice of our PRWT accounting office, we often encounter the topic of legality of employment, especially of employees from Ukraine.

Below is an example of a situation that employers may encounter:

The employer hired an employee on May 12, 2021 on the basis of a declaration of entrusting work (the declaration was issued from May 12, 2021 to June 14, 2021, because the employee had previously performed work under a contract concluded with an employment agency, also on the basis of a declaration , therefore, the employer could only apply for 34 days of work on the basis of the declaration). On January 10, documents were sent to the Office in order to obtain a residence card and legalize work. On February 15, the employee went to the Office to fill in the formal shortcomings of the submitted application and to submit prints finger. Unfortunately, the deadline for issuing a residence and work permit was not set until June 30, 2021.

In connection with the above, the question arises whether after the expiry of the statement validity, i.e. from June 15, 2021 to the date of obtaining the decision from the Office, the employee can continue to work for the current employer? Until the employer obtains a decision from the Office, he will not have any document confirming the legality of the foreigner’s stay and work.

Reply:

Yes, as a rule, the performance of work by a foreigner from June 15, 2021 to the date of receipt of the decision legalizing the stay and work will be possible and legal. However, the employer must remember to meet the following conditions:

Pursuant to Art. 88 sec. 1b in connection with art. 88 g of paragraph 1. 1a of the Act of 12 April 2004 on employment promotion and labor market institutions, a foreigner working for a given employer on the basis of an employment contract, who submitted an application for a temporary residence and work permit on time in order to continue his current work in accordance with his / her permit (the application does not contain formal defects or they have been corrected on time), may legally work in Poland with the same employer from the date of submitting the application until the date on which the decision on granting a residence and work permit becomes final.

Pursuant to Art. 108 sec. 1 of the Act of 12 December 2013 on foreigners, if the deadline for submitting the application for granting a residence permit to a foreigner has been met in the application, there are no formal defects or the formal defects have been corrected within:
1.The voivode places a stamp in the foreigner’s travel document confirming the submission of the application for a temporary residence permit,
2. The stay of a foreigner on the territory of the Republic of Poland is considered legal from the date of submitting the application to the date on which the decision on granting a temporary residence permit becomes final.

The provision of work by a foreigner during the period of waiting for the issuance of a residence and work permit is possible after meeting the conditions specified in art. 87 sec. 1 point 12 lit. b of the Act of 12 April 2004 on employment promotion and labor market institutions in connection with art. 108 sec. 1 of the Act of 12 December 2013 on foreigners. Pursuant to the above-mentioned provisions, the necessary condition for the legal performance of work by a foreigner waiting for a temporary residence permit (including a uniform residence and work permit) is to meet the requirements that the deadline for submitting an application for a permit has been met by the foreigner (in this application does not contain formal defects or have been corrected on time). Confirmation of compliance with these requirements is an imprint of the stamp placed by the voivode in the foreigner’s travel document.

As underlined by the National Labor Inspectorate, providing work by a foreigner without obtaining such a stamp in the travel document may be questioned during an inspection by both the Labor Inspectorate and the Border Guard, which in consequence may result in recognition of illegal work already from the expiry of the validity of previously held documents legalizing the foreigner’s work. . It should be remembered that having a confirmation of submitting documents to the office by a foreigner is not tantamount to having the above-mentioned stamp.