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Frequent
Legal Issues for Contractors on XI. Procedures for Obtaining Work Permits Presented by Natalia Prisekina, senior associate attorney and Director of the Vladivostok branch office of Russin & Vecchi. Russian legislation strictly regulates the manner in which foreign employees are engaged to work in the Russian Federation. Pursuant to federal law, an employer seeking to employ foreigners must first obtain: 1) consent from the Ministry of Internal Affairs or its territorial body (133) to recruit and employ foreign workers, and 2) an individual work permit on behalf of each foreign employee before the employee engages in labor activity in Russia. (134) Both are valid for a maximum of one year. The Law on Legal Status defines “labor activity” in this context as a foreign citizen’s work in Russia pursuant to a labor contract or a civil contract for rendering services or performing work. The same procedures described in this article also apply to Russian entities utilizing foreign employees pursuant to secondment agreements, even though the direct labor contract in such cases is generally between the foreign entity and the foreign employee. The law does not contemplate an easier procedure for obtaining work permits for foreign citizens employed as directors of companies with foreign investments, as was the case under prior legislation, nor does it contain any provisions on the employment of foreign employees by representative offices of foreign companies. At a recent forum held by the American Chamber of Commerce in Moscow, Russian government officials stated that any foreign employee listed in the employment roster of a Russian legal entity, including the general director, even if not located in Russia full time, must obtain a work permit. Thus, the general procedure established by the Law on Legal Status for obtaining work permits applies to all categories of foreign citizens, with the following, limited exceptions: 1) foreigners with permanent or temporary resident status in Russia who plan to reside in Russia for six months out of each of three consecutive years. For employers, such status may be beneficial as it replaces the need for consents to employ such employees and application for individual work permits each year; 2) foreign employees performing assembly works, service and guarantee maintenance, or post-guarantee repair of technical equipment previously imported into Russia by their company; 3) employees of diplomatic representations, journalists, teachers, and foreign students studying in Russia who work part time. (135) The first step in obtaining a work permit is to obtain consent to recruit and employ foreigners. In this procedure, first the territorial body of the Ministry of Labor verifies the expediency and necessity of a Russian legal entity’s recruitment and employment of foreigners, considering the preference to employ Russian citizens. The Ministry of Labor also considers the Employment Center’s proposal on the expediency of recruitment and employment of foreigners, which takes into account the availability of registered Russian candidates for the positions. Subsequently, the regional and federal offices of the Migration Department consider the Ministry of Labor decision and the application materials. Finally, the Department of External Labor Migration of the RF Federal Migration Service issues consent to recruit and employ foreigners. The Sakhalin Region Migration Department currently requires submission of the following documents in order to obtain consent to recruit and employ foreigners: 1) Application; 2) Decision of Employment Department; 3) Model Labor Agreement; 4) Employer’s certificate on state registration; 5) Application to obtain a petition to the Department of External Labor Migration, Federal Migration Service, Ministry of Internal Affairs to issue consent; and 6) Receipt for payment of state fee. The same documents and a separate application must be filed with the Federal Migration Service. Once consent to recruit and employ foreigners has been received, an application for work permits may be filed. The Ministry of Internal Affairs issues work permits to the employer, based on the employer’s application on behalf of the employee. Although issuance of a work permit is intended to be subject to the employer’s deposit of funds sufficient to arrange for the departure of the foreign worker from Russia, to date the implementing legislation for this procedure has yet to be passed. The work permit application should include the following documents:
The territorial department of internal affairs must consider an application within 30 business days from the date of its filing with all of the necessary documents. It may refuse to issue a work permit if it determines that information in the application is false or that the employee poses a threat based on activities, as set forth by law, such as advocating for violent constitutional change in Russia, financing terrorist acts, testing positive for HIV, etc. (136) If the application is rejected, the territorial department of internal affairs must indicate the reason for rejection. Upon receipt of a
work permit, the employer must transfer it to the respective employee.
Regulations
have recently been introduced, which
allow an employer to apply for the revocation of an employee’s
work permit if the foreign employee violates the terms and conditions
of employment. (137)
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