Working with a Fiktionsbescheinigung: Everything You Need to Know

What is a Fiktionsbescheinigung?

A Fiktionsbescheinigung (literally "fictional certificate") is an official document in Germany issued by the immigration authorities (Ausländerbehörde) indicating that an individual's previous residence permit has expired, or is about to expire, and an application for renewal or issuance of a new permit is still pending. 

It serves as a temporary proof of your visa or residence permit while your application for an extension or a new permit is being processed. Essentially, it allows you to continue living and working in Germany if your previous visa or residence permit allowed you to work, without interruption, even if your original permit has already expired.

Why Do You Need a Fiktionsbescheinigung?

The Fiktionsbescheinigung is crucial because it maintains your legal status while your new residence permit is being processed. Without it, you might face employment interruptions or legal complications. It reassures both you and your employer that you can continue working legally until a final decision on your application is made.

Types of Fiktionsbescheinigung

There are two types of Fiktionsbescheinigung under German law:

1. § 81 Abs. 4 Sentence 1 Residence Act (AufenthG) - Issued when you apply for a new residence permit before your current visa or residence permit expires. Your existing rights remain valid during the application process.
   
2. § 81 Abs. 3 Residence Act (AufenthG) – This applies to individuals who entered Germany visa-free and are applying for a residence title after their initial lawful stay. In this case, the only right retained is the right to remain lawfully in Germany during the processing period. Other rights associated with a residence permit (like working or receiving benefits) do not automatically continue.
   

Can You Work with a Fiktionsbescheinigung?

Yes, you can work legally with a Fiktionsbescheinigung! However, there is an important distinction between those who already have the Fiktionsbescheinigung in hand and those who have submitted their application in time but have not yet received the certificate.

If You Already Have a Fiktionsbescheinigung

If you have been issued a Fiktionsbescheinigung, it clearly documents that your residence and employment rights are legally protected while your new permit is being processed. You can confidently show this document to your employer to prove your right to work.

• Proof of Validity: Your Fiktionsbescheinigung itself serves as proof of your ongoing right to work and reside in Germany.
• Employer Assurance: Employers can legally continue to employ you without any interruptions or complications.
• Legal Reference: The certificate itself will typically reference § 81 Abs. 4 Sentence 1 of the Residence Act (AufenthG), confirming your legal right to work.

If You Do Not Yet Have the Fiktionsbescheinigung (but applied in time)

If you have submitted your application for a residence permit extension on time, but the Fiktionsbescheinigung has not been issued yet, you still have the right to work, as your previous permit's validity is automatically extended under § 81 Abs. 4 Sentence 1 of the Residence Act (AufenthG).

• Automatic Extension: Your existing visa or residence permit remains valid, and you can continue to work legally even without the physical Fiktionsbescheinigung.
• Informing Your Employer: You may face some confusion from your employer about your right to work. In this case, you can ask VisaFlow for a template letter that you can tailor to your situation explaining that your application was submitted on time and that your previous rights remain in effect.
• Clarifying Legal Status: Even without the Fiktionsbescheinigung, the fact that you applied before your permit expired means your rights are preserved until the immigration authority makes a decision.

How to Prove Your Right to Work to Your Employer

Regardless of whether you have the Fiktionsbescheinigung or not, it’s crucial to reassure your employer about your continued legal status. Here’s how:

1. Show Your Fiktionsbescheinigung: If you already have it, simply present it to your employer as proof.
2. Provide Your Submission Confirmation: If you don’t have the certificate yet, present proof of your application submission, such as a confirmation letter or email from the immigration office.
3. Use a Template Letter: You can ask VisaFlow for a template letter that clearly explains your right to work even if the Fiktionsbescheinigung has not been issued yet.
4. Legal References: Share the official legal reference to § 81 Abs. 4 Sentence 1 of the Residence Act (AufenthG) to clarify your continued right to work.

How to Obtain a Fiktionsbescheinigung

To obtain a Fiktionsbescheinigung, follow these steps:

1. Gather Necessary Documents:
   
   • Passport and existing residence permit
   • Proof of income or employment contract
   • Proof of health insurance
   • Completed application form
2. Submit Your Application on Time: Make sure to apply for the extension before your current permit expires.
3. Attend the Appointment: Bring all documents and explain your situation clearly.
4. Receive the Certificate: The immigration office may issue the Fiktionsbescheinigung on the spot or send it later.

FAQ About Working with a Fiktionsbescheinigung

1. Is it legal to work without a Fiktionsbescheinigung if I applied on time?
Yes, it is legal as long as you applied for your residence permit or extension before your visa or residence permit expired and you were allowed to work under your previous visa or residence permit. Your existing rights continue to be valid during the processing period.

2. Can I travel outside Germany with a Fiktionsbescheinigung?
It depends on the type of Fiktionsbescheinigung. Some types restrict international travel. Always check your specific certificate for travel conditions.

3. What if my employer refuses to let me work without the Fiktionsbescheinigung?
Provide your employer with the VisaFlow template letter and legal references proving your right to work. 

4. How long does it take to get the Fiktionsbescheinigung?
Processing times vary depending on the immigration office and your application. In some cases, you may receive it immediately during your appointment, while in others it may take several weeks.

Final Thoughts

Having a Fiktionsbescheinigung in hand undoubtedly makes it easier to prove your right to work. However, if you have applied in time but have not yet received the certificate, your existing work rights remain intact. Make sure to clearly communicate this to your employer.

At VisaFlow, we assist you with every step of the application process and help you stay protected. Get in touch today for expert guidance and support with your visa and residence permit needs!