Work permits for U.S. defense contract jobs

My company brought me to Germany to work as a defense contractor with a security clearance. As part of this, you apply for Technical Expert Status Accreditation, which means you are so skilled at your job that no German could possibly do it (apparently, prerequisites like "Has experience working in the US government" or "has a security clearance" are not considered, even though these would bar most or all German nationals).

So, my TESA application was denied. Since it typically serves in lieu of a work visa, at my 90 day mark I have to go back to the States. Can anyone think of any alternatives?

I tried calling the Rathaus in Stuttgart but nobody knew how to answer my questions about TESA. They could only tell me that without a residence permit I would have to leave after 90 days--they also said I would need to have a job to have a residence permit (of course, to work in Germany, you need to already have a residence permit)...I think they were just messing with me.

Called the embassy in Frankfurt and, true to form, they were of no help whatsoever.

So, here is the situation as I understand it:

1. You can only stay in Germany 90 days out of every 180 days--so if on January 1st I must go home, then I cannot return until June 1st.
2. Applying for a work permit will take ~6 months, and the Germans will in all likelihood turn it down (if no German could do the job, then my TESA application would have been approved).
3. Applying for a work permit requires a residence, with all the associated immobilien fees etc. (the cheapest flat I found in this area required an immobilien fee of around 3000 euro). This is important since my company is responsible for relocating me and will try to pay as little as possible.

I need to establish what the problem space is before I can start investigating options. Did I leave anything out? What am I missing? What are my options?

Thanks in advance!

Why do you need this TESA thingie? Many of us here have normal work permits for normal (ie non defense related, security clearance type) jobs. When I got my work permit, it was approved on the spot because I made more than 50K € per year and if you make more than that, then they consider you to be 'highly skilled in a job for which they will not be able to find a qualified German within the 4 weeks allowed'. So, why can you not just go to Arbeitsamt with your contract in hand saying that you make over xxx€ per year (assuming it is more than the minimum) and with the form completed by your new company stating what your job will be. Why do you need this TESA thing?

So far as I know, TESA functions in lieu of a work permit. If you have it you don't have to pay German taxes nor US taxes (on the first $85k you make). You also get all kinds of logistical support from DoD (VAT reimbursement, housing assistance, etc.).

My salary is around €80k, are you serious that I should be able to get a work permit? I keep hearing it takes 6 months or more.

The tricky question is...my company has to pay for my move, including immobelien fees. They're willing to do it if they're sure the Germans will let me work on this contract. That is to say, they will pay the $10k required to move me over here, but if the Germans then turn me down, we don't get those monies back. So we need to know that this is a sure thing, and they already turned down my TESA because they think a German could do my job (I have 10 years' experience in my field, but no degree). Unfortunately no German can do my job because it requires a clearance...but they don't consider this important.

I'll just say our CFO is not pleased with the "opportunity" to drop $10k for the chance to apply for a job we already landed.

It will not take six months to get a German work permit, especially if a US security clearance is a requirement of the job. I would think (not expert opinion here) that you should get approved fairly quickly- within a few weeks at most given your pay level and the technical nature of your job.

Assuming you will be working for more than six months here (thus not on TDY status) you willl pay German taxes and will not get the base logistical support since you won't have TESA status. What I advise you to do is speak to a tax accountant familiar with the US-Germany agreement on double taxation and see what your US and German tax liability will be. On the US side, ask what you will owe in income tax after taking any housing allowance into account. You may have to pay some US tax in addition to German tax, although not on all of your US salary. I can't tell you for sure if you will, and if so, how much, which is why I suggest contacting a tax accountant. A couple of them advertise here on TT.

USAREUR should be of greater assistance than the US Embassy on the issue of the TESA status. Contact them. When did you enter Germany?

Please keep in mind that many DOD contractors will not hire "Local Hires" or employees without a SOFA/TESA status.

The only people that can work on your TESA status is your company. They must fight for you to get it. You are extremely
limited in what you can do (As you have seen). If the job requires a Secret clearance or higher then that is reason enough
to approve a TESA status as a German can not have and will never get a S or TS clearance. Its sounds like your company is not
fighting enough for you and maynot be giving the Germans all the details, which is why they said a German can do it and turned
you down. Time to go have a word with your HR people.

USAREUR is not helping; the DOCPER office covers applications, but are pretty light on details as to why you are rejected, or what your other options are (they're the ones who told me to call the embassy).

Anyway, I will take your advice and consult a tax attorney. I arrived October 1st, so I have until January 1st before they deport me to the States. My current taxes hover around 31% so I would simply ask my company to include the tax difference in my COLA adjustment.

Will keep you all posted!

According to DOCPER, clearance status is not a factor.

Apparently the Germans complained because the Army was giving away TESA status like party favors to cleared personnel. So now they have these stringent requirements: it doesn't matter if you have managed several programs over the past several years if you are a month short of the minimum.

You don't have to pay ANY taxes? I'd double check that if I were you. Under TESA, you wouldn't have to pay German taxes, definately, but you should still have to pay US taxes. Even if you no longer live there. Just like US military when stationed overseas still have to pay State taxes for their "home of record". Perhaps TESA is different but I doubt it.

Oh, and you probably shouldn't advertise the fact that you have a clearance.

Yes he is right. I am in the UK with DOD. The Contractors here don't have to pay US taxes either (for the first 85K they make).

Jotok, have you checked this website? DocPer

Your company like many contracting company are not taking care of their employees. To understand the system I recommend you visit the DOCPER website. http://www.per.hqusareur.army.mil/CPD/DocP...anyDefault.aspx.
DOCPER works with article 72 & 73 of the SOFA agreement. They start of at looking at the contract between the US Government and the contracted company. Then they look at your contract with the company. Then they look at all connections you have to Germany. For example do you own property in Germany? Is your child or wife German? Did you live in the last five years lived and worked in Germany? Did you use the German social system in the last five years? The stronger your connection to Germany the higher chance they will not approve your application. That is part of the problem, the second part is, can a German citizen or a tax paying foreign national do the job. If yes then the application will be disapprove. Why? It is all about taxes. Why open a tax free logistically supported position when they can t collect taxes on the work done in Germany.
If the contract between the US Government and the contracted company was approved and your application was disproved then you cannot fill the job position. Your only chance would be to get the US government to open the job for an ordinary resident paying German taxes and you will have to get a working permit and residence permit then you can enter and fill the job position.

I know this is a little late to reply, but I'll try.

First off there had to be another reason why jotok was denied TESA status. Most US contractors that bring people over have been doing this for 10 years now and know the procedure well. Just having a clearance means nothing, you must have the job skills and the work to be performed must be sooo technical in nature that a German can not do it. Maybe it was because he failed because he was "ordinarily resident", meaning his ties to Germany were too strong and the Germans considered him a German already.

More than likely, his skills did not match the job to be performed, or the job itself was not technical.

If anyone would like to discuss this further, feel free to contact me. With over 20 years in Europe, on both sides of the TESA thing. I've become quite the expert dealing with DOCPER and TESA.

Some companies are better than others at fulfillng the requirements for TESA. He couldn't have been classified as ordinarily resident here as he said his company bought him over (implying he came from another country). If it is one of the smaller companies with just a few overseas employees or a small business subcontracter you find that they often do not know all of the the regulations to pass the TESA. Many times they fill the slots and hope for the best. If there are no obvious reasons for failing to get TESA certified, such as having a European wife, owning German property, previously working in Germany for a German company, then the chances are as you say he wasn't deemed skilled enough for the job or did not get a full security clearance. I have also known people who didn't fit in and had their contract terminated with no notice. There is little recourse in these situations which is one of the reasons it can be more risky than have a 'regular' job.

Hello all

I dont want to "Thread Jack"...but upon doing a search of TESA in the froums i have only seen two threads. I will try to keep it releveant to JOTOK's post prior to creating a new thread.

Question: Why does it seem that TESA is so subjective?

I am active duty in the K-town area and i have heard all kinds of wild stories about contractors and TESA. There appear to be many contradictions and as i said before it seems very subjective. If the Host Nation admin man/woman is having a good day ..."Approval"...if having a bad day, you get the big fat "Denied" stamp. I have read through the DOCPER site and its almost comedic.

Look forward to any insightful feed back / respoonses / debate.

KMC

The more ties you have to Germany the worse it is. If you have a German wife or one from an EU member country, who works and pays German tax you'll probably be denied, if you own property here you'll likely be denied. The onus is on you to prove you are not planning on becoming 'resident' here. Obviously the more ties you have the harder it is to prove otherwise. Someone recently applied to my Husbands company. He was retiring from the military over here, has a German wife who is a teacher, they also have 3 kids, who are in German schools. She gets Kindergeld for those kids and the family uses the German health care system under her insurance. Now he has to prove he is not 'living' here as a German when it looks from DOCPER's point of view that he is. You also have to remember that there are a bunch of contractors that have been here up to 20 years or more tax free. The Germans are just trying to get some taxation from those people and there is talk that TESA will not be renewed if you have been here an excessively long time i.e. 20 years.

For the most part it is easier to get if you are coming from the US and have never lived here before. (Prior Military service here in Germany is not counted)

Which I think is perfectly fair. You should not be able to have the best of both worlds.