Russian migration policy traditionally aims to satisfy two opposing purposes.
The first one is that the Russian government is improving the existing migration rules, developing new migration instruments that aim to encourage skilled foreign professionals to come to Russia and not curtail inflow of investments into the economy. In recent years, Russia has developed a number of effective migration instruments that allow foreign employees to be brought to Russia rather quickly. For example, a simplified procedure for obtaining migration employment permission for highly qualified foreign specialists1 has been introduced. In addition, Russia has signed several bilateral treaties with other states that also establish simplified rules for citizens of such states who wish to work in Russia2. Additionally, as Russia has joined the World Trade Organization (WTO), the government is now developing new instruments aimed at improving the investment climate, including simplifying the migration regime for investors from the WTO countries. Thus, currently the State Duma (the Lower Chamber of the Russian parliament) is considering a draft law establishing special rules for key personnel of corporate investors from the WTO countries.
On the other hand, the Russian authorities are trying to protect the Russian domestic labour market and prevent illegal immigration. For this purpose they use different legal mechanisms. For example, they establish legal requirements and procedures that should be observed by companies when hiring foreign employees, as well as setting measures of liability, including severe financial penalties, for those who do not observe the relevant procedures and requirements.
Thus, along with the simplified rules and procedures for obtaining migration permission that are necessary for a foreign national specialist to work in Russia (i.e. a work permit and a work visa3) there is also a regular procedure for obtaining such migration permissions. This procedure has been in effect since 15 January 2007, and is rather complicated and time-consuming. It includes several consecutive steps that should be completed within a period provided for by law. Generally, the procedure takes around four months to complete, not taking into account the very first step, which is obtaining a quota for hiring foreign national employees. That involves a separate procedure taking about a year.
This aspect should be taken into account when companies plan investments. Bringing foreign national specialists should be carefully planned and may become one of the important milestones in starting business operations in Russia.
Importantly, granting quotas for hiring foreign national specialists is one of the measures aimed at protecting the domestic labour market and at providing a balance between human resources in the Russian regions. The quota is limited at both levels, at Federal level and at the level of each Russian Region. The limits of the quota are set according to two major criteria: the number of foreign national specialists and the nature or level of their professions/qualifications.
Thus, generally, to be able to obtain migration permissions for foreign national specialists under the regular procedure, the employing entity in Russia should first obtain a quota for hiring foreign specialists. Having such a quota is a mandatory preliminary condition for filling most job positions for which employers plan to obtain employment permits under the regular migration procedure. This requirement applies when an employing entity in Russia plans to hire foreign national specialists to perform employment duties under employment agreements, as well as under civil law contracts (i.e. as contractors providing services).
In accordance with the current quota rules, employers should file a quota application for the next year with an authorized state authority between 1 January and 30 April of the current year.
Notably, for several years, only existing entities could participate in the quota setting under the above rule. Companies that were created after 30 April of a current year could not file quota applications for the year in which they were created, as well as for the next year, which seriously hindered their business operations, as they could not hire foreign specialists under the regular procedure for two years (i.e. in the year when the company was created and next year, as the company was not able to timely file an application).
Therefore, after extensive discussions with representatives of foreign businesses in Russia this rule has been changed. Now, along with initial quota applications for the next year companies may file additional “corrective” quota applications for the current year. That is to say that a company that was created after 30 April will be able to file a quota application next year, as a “corrective” application. However the deadline for filing these applications is the same: before 30 April of a relevant year.
To file the application, employers should take the following main steps :
- register their company at the site www. migrakvota.gov.ru;
- complete an electronic application at the site;
- print out two copies of the completed application;
- send the printed application to the proper authority of the constituent entity of the Russian Federation where it is proposed that foreign nationals will undertake employment activity.
As mentioned above, filing the application in good time is a necessary condition precedent to ensure that a quota may be obtained and subsequently to receive migration permissions for foreign employees to be hired in Russia in the calendar year in question. However, regrettably, even if a company participates in the quota campaign, this does not guarantee that quotas will be granted and, as a result, that migration permits to hire foreign national employees for relevant job positions will be issued. The reasons for this are the following.
When making a decision on granting the quota, an authorized body takes into account the following aspects:
- priority of national labour resources, i.e. whether the need for employees can be met using national resources, including Russian employees from other Russian regions who have similar professions/qualifi cations and/ or by retraining unemployed Russian nationals who have other professions/qualifications;
- outstanding breaches of Russian migration law in the previous and the current year by employers who are requesting a new quota;
- outstanding salary payments for a period exceeding three months, as well as outstanding outstanding breaches of the Russian labour law that were discovered by the State Labour Inspectorate in the current year and in the previous years;
- it being impossible to provide foreign employees with accommodation in the locations where employers plan to hire foreign employees.
If the need for labour resources may be satisfied by using domestic resources, or an employer has committed any of the above violations, the authorized state body may refuse to grant the quota in part or in full.
Notably, the above list of grounds for refusing a quota is exhaustive. State bodies responsible for granting quotas may not interpret it extensively. Therefore, if a responsible state body refuses to grant a quota to an employer for any reason other than listed above, such employer has a good chance of successfully challenging the refusal. In addition, an employer has the right to challenge any negative decision regarding the quota if they consider that such decision is incorrect. Alternatively, as mentioned above, an employer may also fi le an additional “corrective” quota application next year, so that the state body could reconsider the decision (i.e. grant a quota or increase/decrease the quota previously granted).
Moreover, when preparing a quota application, an employer should give the following information regarding foreign employees they plan to hire next year:
- job position titles4;
- the number of employees for each job position;
- the citizenship of each foreign national employee.
Thus, an employer needs to know such data well in advance. Unfortunately, this is not always possible in practice, as business needs change.
Thus, as is seen from the above, the regular procedure for hiring foreign national employees and, in particular, the first part relating to obtaining a quota, is rather complicated. Additional administrative and/or financial resources may be required to make the necessary estimates and plans. In some cases it may appear rather unreasonable to obtain migration permits under the regular migration procedure for hiring foreign national specialists owing to the time necessary to obtain such permits and the high cost that compliance with migration rules and requirements may entail.
For this reason, when companies plan investments which involve bringing foreign specialists to Russia, we recommend that along with the regular procedure for obtaining migration permissions they consider alternative migration instruments, where the quota requirement does not apply.