Legal Status of Foreign Nationals

Foreign nationals (a foreign national is an individual that is not a citizen of the Russian Federation but who has proof of citizenship [nationality] in a foreign country) may be located in Russia on the following terms:

Temporary stay (a foreign national who is temporarily staying in the Russian Federation is one who is in the Russian Federation based on a visa or in a situation that does not require a visa and receives a migration card but who does not have residency or a temporary residence permit);

Temporary residency (temporary residency is a status obtained by foreigners who have a temporary residence permit in Russia. A temporary residence permit is usually issued in the form of a stamp in one’s passport). Foreign nationals who have temporary residency permits can be hired without obtaining special permits;

Permanent residency (permanent residency is a status obtained by foreigners who have received a residence permit in Russia). A residence permit is a document that verifies a foreigner’s right to permanently reside in Russia and to enter and exit the country freely. Regional internal affairs offices issue residence permits. Foreign nationals who have residence permits can be hired without obtaining special permits.

In labor relations, stateless persons are treated as foreign nationals (a stateless person is a person that is not a Russian citizen and does not have proof of citizenship/allegiance to a foreign country (Article 2 of Law 115-FZ dated July 25, 2002). The concept of “foreign national” also includes “stateless person” with the exception of situations where special rights that are different from rights for foreign citizens are established for stateless persons.

foreign national staying in Russia in a situation that does not require a visa is a foreign national staying in Russia in a situation that does not require a visa (with the exception of a foreign national in Russia without a visa under a procedure established for a separate category of foreign nationals (including those who hold diplomatic or official passports, passengers of cruise ships, crew members of sea liners, riverboats, or other methods of transportation, those who are transiting through Russian territory, and residents of border territories), as well as foreigners staying in Russia without a visa under a procedure established for specific purposes, including commercial and economic activities in border territories, tourism, or construction).

It is not necessary to obtain a permit to arrange the hiring and employment of foreign nationals that are in Russia without a visa and have temporary residency status (Article 13.1, Point 9 of Law 115-FZ dated July 25, 20020). In this case, a labor agreement is the basis of the relationship between the employer and the employee. Before signing a labor (civil-legal) agreement, the foreign national should receive a work permit.

The organization should notify the migration service and employment administration (committee) about the signature or dissolution of a labor agreement. This should be done within three business days from when the labor (civil-legal) agreement is signed.

Processing work permits for foreign nationals that come to Russia without a visa and have temporary residency status can find work:

  • Independently;
  • Through an organization;
  • Via their own authorized agent.

This is stipulated in Article 13.1, Point 2 of Law 115-FZ dated July 25, 2002.

The amount of time that a foreign national can temporarily stay in Russia in a situation not requiring a visa cannot exceed 90 days. A work permit is required to extend a foreigner’s temporary stay in Russia. If the foreign national needs a work permit, they may sign a labor agreement and submit it to their regional office of Russia’s Federal Migration Service; a work permit is then processed for the same time period as the validity of the labor agreement, but not longer than one year, and the time limit is counted from the date that the foreign national entered Russia (Article 5, Point 1, Paragraph 2 and Article 13.1, Point 2 of Law 115-FZ).

Permits are issued within the framework of an established quota. If the foreign national had a work permit valid for 90 days issued to him before the labor or civil-legal agreement was signed, then another work permit is issued to him outside of the quota (Article 13.1, Point 6 and Point 7.3 of Law 115-FZ). Quotas do not apply to some professions; the list of these professions can be found in Orders from Russia’s Ministry of Health and Social Development and it is updated annually.

In order to process a personal work permit for a foreign employee who has come to Russia without a visa and has temporary residency status, the following documents must be submitted to a regional office of the migration service:

  • Application;
  • Documentation verifying the foreign national’s identity;
  • Migration card;
  • Receipt showing payment of state duty in the amount of 2,000 rubles for the issue of the work permit (Article 333.28, Point 1, Subpoint 13 of the Tax Code);
  • Labor agreement or civil-legal agreement on performing work (rendering services);
  • Fingerprinting;
  • Russian language knowledge test.

Such lists of documents can be found in Point 46 (and subpoints) of the regulations established by Order 1/4/1/2 of Russia’s Federal Migration Service (FMS), Ministry of Health and Social Development, Ministry of Transportation and State Fishery Committee dated January 11, 2008.

The FMS must issue a work permit or notification that a work permit is being refused to a foreign national who came to Russia under circumstances not requiring a visa, no later than ten business days from the day that it receives the foreign national’s application for a work permit. A work permit is issued to the foreign national personally when they present documentation verifying their identity and which is recognized as such by the Russian Federation. A decision to refuse to grant a work permit to a foreign national may be appealed in a federal executive body that deals with migration issues or in court within three business days from the day that the foreign national in question receives the notification. This procedure is stipulated in Article 13.1, Point 7 of Law 115-FZ.

Within 30 days of receiving a work permit that is valid for more than 90 days, the foreign national should present the following to the migration service:

  • Medical certificate verifying that they do not have a drug addiction;
  • Medical certificates verifying that they do not have any of the communicable diseases listed the Russian government’s Resolution 188 dated April 2, 2003;
  • Certificate verifying that they are HIV-negative.

In practice, the FMS will not issue a work permit if the medical certificates are not presented at the time the work permit is issued/received (Order 1/4/1/2 of Russia’s FMS, Ministry of Health and Social Development, Ministry of Transportation and State Fishery Committee dated January 11, 2008).

The foreign national has the right to work only in the area of the Russian Federation that is indicated in the permit. The exception to this rule is for foreign citizens that have the professions included in the list established by the Ministry of Health and Social Development’s Amendment N 564n dated July 28, 2010). However, the foreign national may work in a different location within Russia only for a limited period of time. For example, a foreign national who has temporary residency may be sent on a business trip to a different location within Russia for no more than 40 or 90 consecutive days if the employee’s permanent work is performed on the road or is of an itinerant nature and this is determined by their labor agreement, and 30 days per year during the validity of the work permit for highly qualified specialists.

Table 1

Please click the Link to display the summary of possible legal statuses of a foreign individual in Russia.


Table 2

Foreign nationals arriving in Russia in an arrangement that does not require a visa are treated as foreign nationals of those countries with which Russia has signed agreements on visa-free travel (Table 3).

 

Countries which have signed agreements on visa-free travel with Russia (Table 3)

[1] In Russia, citizens of Belarus have rights to employment, pay and other social-legal guarantees equal to those of citizens of Russia (agreement “On Equal Rights of Citizens” dated December 25, 1998). Accordingly, the established procedure for hiring foreign workers does not apply to citizens of Belarus; they are hired just as Russians would be.

Agreement on the Legal Status of Migrant Workers 

– Vyacheslav Filippov, specialist with the company Konsultant-Plus:

 

First, the term migrant worker must be defined. For Russian employers, this status is afforded to citizens of Belarus or Kazakhstan who are in Russia legally and performing work legally. This type of worker should not be living in Russia permanently; in other words, they do not possess a residency permit.

 

  • The Agreement stipulates that citizens of the countries which are parties to the Agreement do not require a work permit in the Russian Federation. They may be hired for any type of employment regardless of any restrictions that may be in place for protection of the national labor market.

 

It’s important to note that this new development is especially pertinent for citizens of Kazakhstan, as this rule has already been in place for citizens of Belarus for some time now. According to Points 1 and 2 of the High Council of the Community of Belarus and Russia’s Decision N 4 “On Equal Rights of Citizens to Employment, Compensation and Other Social-Labor Guarantees,” dated June 22, 1996, the general procedure for hiring and employing foreign workers does not apply to citizens of Belarus. Even in the past, citizens of Belarus were not required to obtain work permits. Now, citizens of Kazakhstan are no longer required to do this either.

 

  • In addition, Russian employers now have the right to hire citizens of Kazakhstan for positions which were previously subject to restrictions established by the Russian government in pursuance of Point 5 of Article 18.1 of Law N 115-FZ “On the Legal Status of Foreigners in Russia” dated July 25, 2002 (hereinafter – Law N 115-FZ). Recall that the Russian government establishes an admissible number of foreign workers that can be hired in various sectors of the economy on an annual basis. The number is verified with regard to the economic entities that are conducting business in one or several locations in Russia or all over the country. This means that employers do not have the right to hire more foreign workers than the numbers that are set for these types of business which are determined by the Russian government.

 

Since citizens of Belarus are not issued a migration card, only citizens of Kazakhstan must present one.

 

  • Upon being hired, foreign workers need to present documents that have been provided to them by the legislation of the country of employment, as well as documents verifying that they are in that country legally. According to Article 2 of Law N 115-FZ, one of the following documents may be used to verify that one is in Russia legally:- Residency permit;- Temporary residency permit;- Visa and/or migration card;- Any other document provided for by federal law or international agreement which confirms the foreign citizen’s right to stay (reside) in Russia.

 

Since citizens of Belarus are not issued a migration card (Letter N MS-2/559 of Russia’s FMS dated January 21, 2005), only citizens of Kazakhstan must present one. Otherwise, the list of documents necessary for employment is the same as for Russian citizens. This list has been established in Article 65 of Russia’s Labor Code.

 

  • Another important benefit stipulated by the Agreement is that migrant workers and members of their family have 30 daysto register (registering according to their place of residence) from the date that they enter their country of employment.

 

Previously, they were required to inform the migration authorities of their arrival to Russia no later than seven working days from their date of entry (Article 20, Point 3, Subpoint 2 of Federal Law N 109-FZ “On Migration Registration of Foreign Nationals and Stateless Persons in the Russian Federation” dated July 18, 2006). The maximum amount of time that a migrant worker and their family may temporarily stay is dependent on the duration of their labor agreement with their employer (Article 5, Part 2 of the Agreement).

 

  • It should be noted that neither labor legislation in general, nor the Agreement in question establishes a special basis for a fixed-term labor agreement to be signed with the foreign national. Thus, the employer may sign either a fixed-term or open-term labor agreement with migrant workers. Recall that the list of bases on which to sign a fixed-term labor agreement is established in Article 59 of Russia’s Labor Code.
  • However, if the labor agreement with the foreign national is terminated before it expires, the foreigner loses the status of working migrant since they are no longer performing work activities. Consequently, they cannot stay in Russia for more than 90 days from their date of entry; after this, they will have to leave the country (Article 5, Point 1, Paragraph 2 of Law N 115). If the foreign national has already been in Russia for more than 90 days when the labor agreement is terminated, they have the right to sign a new labor agreement within 15 days. If they are unable to do so within the designated amount of time, they must leave the country.
  • A very important new development is that the children of migrant workers have the right to attend preschool and receive education in accordance with the country’s employment legislation (Article 12 of the Agreement). However, the children must be living together with the foreign national. Russian preschools and educational institutions do not have the right to refuse admittance to children due to the fact that they are not Russian citizens.

 

In order for their children to enter kindergarten or school, the working migrant should submit an application and provide documentation verifying their status as a migrant worker. Such documentation would be a migration card (for citizens of Kazakhstan) and a labor agreement with a Russian employer.

 

  • As far as medical care is concerned, the Agreement stipulates that the right to receive such care is regulated by the laws of the country of employment and by the international agreements to which they are a party.

 

For example, Belarusians who are temporarily staying or residing in Russia and are working there on labor agreements have equal rights with Russian citizens to receive medical care in state and municipal health care facilities. This is stipulated by Article 6 of the Agreement between the governments of the Russian Federation and the Republic of Belarus “On Providing Medical Care to Citizens of the Russian Federation in Belarusian Healthcare Facilities and to Citizens of Belarus in Russian Healthcare Facilities” dated January 24, 2006.

 

Migrant workers from Kazakhstan who are temporarily staying, but not residing, in Russia must pay for prearranged medical care.
However, it should be noted that, as of January 1, 2010, payments and other compensation given to foreign nationals and stateless persons temporarily staying in Russia, in accordance with labor and civil-legal agreements (including commissioning contracts), are not taxed for insurance contributions (Article 9, Part 1, Point 15 of Federal Law N 212-FZ dated July 24, 2009). This means that only citizens of Belarus who are permanently residing (have residency) in Russia or temporarily residing in Russia (have a temporary residency permit) are entitled to mandatory medical insurance. They are issued mandatory medical insurance in accordance with Federal Law N 326-FZ “On Mandatory Medical Insurance in the Russian Federation” dated November 29, 2010.

 

Citizens of Belarus who are temporarily staying in Russia are not eligible for mandatory medical insurance, are not issued such policies, and payments and other compensation received in accordance with their labor agreements, are not taxed for insurance contributions as established in Law N 212-FZ.

 

However, Russia’s Ministry of Health and Social Development has stated that, regardless of the availability of a mandatory medical insurance policy, Belarusian citizens who are Heroes of the Soviet Union and have been decorated with three classes of the Order of Glory medal, as well as Belarusians who are temporarily staying in Russia and working on labor agreements, should receive medical care in state and municipal healthcare facilities at the expense of appropriations provided for by the budget of the territorial subject of the Russian Federation (see Informational Letter N 20-1/10/2-7112 dated July 21, 2011).

 

Migrant workers from Kazakhstan who are temporarily staying but not residing in Russia, receive prearranged medical care for a fee in accordance with an agreement on provision of medical services or an agreement on voluntary medical insurance. This is established by Regulations on rendering medical care to foreign citizens in the Russian Federation, as approved by Russia’s Government Resolution N 546 dated September 1, 2005.

 

However, urgent and emergency medical care should be provided to citizens of Kazakhstan, Belarus and Kyrgyzstan the same as it would be for Russian citizens. In this case, Article 2 would be applied of the Agreement between the governments of the Republics of Belarus, Kazakhstan, Kyrgyzstan and the Russian Federation “On the Mutual Provision of Urgent and Emergency Medical Care to Citizens of the Republics of Belarus, Kazakhstan, Kyrgyzstan and the Russian Federation” dated November 24, 1998.

 

 

We are also ready to provide you with the following services:

  • Visa support for work permit holders.
  • Work permits for corporations.
  • Consulting on labor law compliance.
  • Representation of the client during labor disputes.

More about services on site: LEGAL SUPPORT

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Larisa Ryazantseva

Senior Lawyer

l_ryazantseva@acg.ru

Office : +7 495 988-21-91

Chet Bowling 

Managing Partner 

ch_bowling@acg.ru

Office : +7 495 988-21-91