The Newest Amendment to the Polish Act on Foreigners. Part I

The newest amendment to the Polish Act on Foreigners has been signed by President on January 4th, 2022. It introduces crucial changes to some of the procedures regarding legalization of foreigners’ stay and work in Poland.

1. TRC Decision Issued in 60 Days

How it was so far: So far Voivode had 90 days to issue a TRC decision (with the exception of temporary residence permit issued based on admission or continuation of full time studies in Poland – in this instance, as per the October 2018 amendment to the Act on Foreigners, Voivode has 60 days to issue its decision). That’s the theory. In practice, in some departments of foreign affairs it takes up to 2 years to complete that task. In almost every one of our 16 voivodeships the TRC decisions are issued past the 90 (or 60) days deadline.

How it is about to be: Voivode’s deadline for issuing a TRC decision will be shortened to 60 days. The time limit starts to run on the day of the applicant’s fingerprints submission, unless there are some missing documents – then the clock starts running on the day of filing those.

Will the January 2022 amendment change anything? Is it possible that Voivodes will be actually forced to issue decisions in a 60 day timeline? Time will show, however it is difficult not to be sceptical about it.

2. The Obligation to Apply for a New Work TRC at Every Employer Change to be Lifted

How it was so far: When foreigner who has a valid work TRC wishes to change his/her employer, he/she has to apply for a new permit. There is only one exception to this rule: Polish university graduates.

Said regulation was not at all adapted to the labour market’s dynamics. Employees often change not only jobs, but also employers. The law was annoying both for foreigners who wanted to find a better job, but also for employers, who were often forced to wait for months until the foreigner chosen to work for them acquired a new work TRC or applying themselves for a work permit, or registering a statement on entrusting work to a citizen of Ukraine, Belarus, Russia, Armenia, Georgia or Moldavia.

How it is about to be: From January 2022 when a foreigner changes employer, he/she will only be required to apply for a change of their work TRC, just like it was and still iis in the case of the first 2 years on the validity of EU Blue Card. 

However, the foreigner will be able to commence work for a new employer after Voivode decision on the permit change. The following questions arise: how long will the foreigner have to wait? Will the 60 days timeline be enough for the office to issue its decision?

3. Documents Proving Having a Place to Stay in Poland no Longer Required

How it was so far: A foreigner applying for a work TRC was obliged to – among other documentation – submit proof of a place of residence in Poland. Usually that was lease agreement.

How it is about to be: Starting from January 2022 there will be no lease contract among many other documents essential to acquiring work TRC. The amendment lifts such obligation. 

Attention! The amendment applies only to work TRC. Subsequently, you will still need to submit a lease agreement if applying for a TRC based on your business activity or full time studies.

4. PLN 3 100 (Gross) Income Required to be Granted Work TRC

How it was so far: A foreigner applying for work TRC had to submit a proof of stable and regular income. According to article 118 sec. 5 of the Act on Foreigners, in case of part-time job or work based on a civil law contract (such as a contract of mandate), in the decision, income was calculated in proportion to work time. 

This provision has been dead for a few years now. Voivodes despite the law, refused to grant work TRC when the applicant was for example working half time – and thus receiving half of minimum wage. Only in the appeal procedure in front of the Head of the Office for Foreigners, after waiting 2-3 years in average, the appellant would be granted said residence permit. 

How it is about to be: The amendment is a de facto implementation of the common Voivodes jurisprudence: regardless of the basis of employment or its time frames, the foreigner cannot receive a salary lower than the minimum wage if he/she wants to be granted work TRC.

5. Instruction on Foreigners’ Rights and Duties – It was a Fiction in Practise, From Now on it Will be a Lawful Fiction

How it was so far: Office processing a foreigner’s case was legally obliged to inform a foreigner applying for a visa, TRC or being party to proceedings regarding his/her obligation to return to the country of origin about his/her rights and obligations associated with the procedure. The instruction has to be issued in a language known to the foreigner.

In reality, based on our experience in the case of the first and last of aforementioned procedures, offices – the Consul and Border Guard Commander – usually comply with the law and the information passed on to the foreigner is indeed in the language understood for him/her. The Voievodes however, while processing TRC applications, almost never issue said instruction and if they do, it is always in Polish.

How it is about to be: According to Article 7 of the Act on Foreigners amendment, rules regarding instruction on the procedures are to be loosened. The Consul, Voivode and Border Guard Commander may send the document via email or even a link to a website. The condition is that the foreigner agrees for it in writing.

Our team is very critical about this change. It looks as though it mirrored the Mazovian Voievode’s practice of issuing a summons (after an application for a TRC has been submitted) in which the foreigner is asked to submit missing documents, the case is assigned a number and deadline of decision and an instruction is given on the foreigners rights and obligations, where one of the paragraphs reads: “I have been instructed on my duty to familiarize myself with the instruction from website:ów or,Nowe-pouczenie-dla-cudzoziemca-o-zasadach-i-trybie-postepowania-oraz-przyslugu.html in the following languages: Polish, English, Russian and Ukrainian. The instruction is available in writing in the Voivodes office.”. 

Firstly: neither of the links work. Secondly: what about citizens of Vietnam or francophones? And lastly: there are no paper versions at the voievode’s office. We checked. 

Moreover, the entire summon letter is in Polish, and usually when an officer issuing it gives it to the foreigner to sign, there’s no time for him/her to read it, especially since it’s available only in Polish.

6. Entrusting Work to a Foreigner up to 24 Months Based on the Statement

How it was so far: An employer, while registering its statement on entrusting work to a foreigners (if he/she is a citizen of Ukraine, Russia, Belarus, Armenia, Georgia or Moldavia) in the Poviat Labour Office could do it for a maximum time of 6 months in a 12 months period.

Attention! The first COVID shield prolonged the period of statements validity, if the statements were to expire during state of epidemic or state of emergency, up to 30 days after the end of the state of epidemic or emergency, whichever state is lifted last.

How it is about to be: Due to the amendment, an employer will be able to register its statement to entrust work to a foreigner for up to 24 months, with no additional limits. 

We have been waiting for this kind of change for a long time now and the issue has been lobbied by Polish employers who like to employ foreigners from the so called ex-USSR republic states.

Source: The Act of December 17, 2021 amending the Act on Foreigners and certain other acts

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