Kazakhstan, like many other countries, has an established permit procedure for employing foreign workers. In this case, obtaining a permit for engagement of foreign workers is the responsibility of an employer.
In practice employers frequently commit violations when engaging foreign workers owing to incomplete knowledge of the appropriate procedures. Most of these violations involve fines for employers and have a negative impact on the engagement of non-residents in the future. Often, employers do not have a holistic view of all phases of the process of engaging such workers.
Below, you will find an overview of the main aspects of engaging foreign workers in Kazakhstan.
- MAIN STAGES OF THE PROCEDURE OF ENGAGING FOREIGN LABOUR
According to the Labour Code of the Republic of Kazakhstan, entering into an employment contract with a foreign citizen temporarily residing in the territory of Kazakhstan shall not be permitted until the employer obtains the relevant permit from the local executive body (hereinafter - 'Work Permit'). Work Permits are now issued by the Territorial State Administration 'Office on Employment and Social Programs'.
Thus, the first step in the process of engaging foreign workers is for the employer to obtain the permit for engaging foreign workers.
The basic regulatory act that determines the procedure for obtaining a work permit is the Rules and Conditions for the Issue of Work Permits to Foreign Workers and to Employers to Engage Foreign Workers (approved by the Resolution of the Government of the Republic of Kazakhstan No. 45 dated 13.01.2012)) (hereinafter - the 'Rules').
The legislation of Kazakhstan distinguishes Work Permits depending on the category of workers, establishing different conditions of validity, extension, etc.
In particular, Work Permits are issued to engage the following categories of workers:
- first category — chief executives and their deputies;
For this Permit to be issued, at least 70% of the total number of employees of this category must be Kazakh citizens.
- second category — managers and specialists meeting qualifying requirements set forth by 'the Skills Reference Book of Occupations of Managers, Specialists and Other Officials';
For this Permit to be issued at least 70% of the total number of employees of this category must be Kazakh citizens
- third category — specialists meeting qualifying requirements set forth by 'the Skills Reference Book of Occupations of Managers, Specialists and Other Officials';
For this Permit to be issued at least 90% of the total number of employees of this category must be Kazakh.
- fourth category — qualified workers, who comply with the job specification established by 'the Uniform Wage Rates and Skills Reference Book and the Wage Rates and Job Specifications of Occupations of Manual Workers'.
For this Permit to be issued at least 90% of the number of employees of this category must be Kazakh citizens.
Please note that since 11 March 2012 the requirements for a listed number of employees, who are citizens of the Republic of Kazakhstan, when engaging foreign labour increased by 20%.
The above restrictions on the number of Kazakhstani employees shall not apply to:
- small business entities;
- state institutions;
- subsoil companies of Karachaganak, North Caspian and Tengiz projects, and their operators, contractors and subcontractors (except for organisations engaged by sub-contractors). This exception applies until 1 January 2015, subject to the provision of certain documents established by the Rules.
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In accordance with the Rules, obtaining a Work Permit is required for foreign nationals, who are planning to engage in labour activities in the territory of the Republic of Kazakhstan, except for foreigners and stateless persons of the following categories:
- those who are members of crews of sea and river vessels, air planes, trains and motor vehicles;
- nationals of the member-states of the Treaty on the Legal Status of Working Migrants and Their Family Members dated 19 November 2010 (Belarus and Russia);
In this case, before 11 March 2012, the citizens of Belarus and Russia had to obtain Work Permits on a common basis.
- those who work as CEOs in branches or representative offices of foreign legal entities;
- those who are CEOs of the companies that entered into contracts with the Government of Kazakhstan for amounts of investments over 50 mln USD;
- those who are CEOs of Kazakhstani legal entities engaged in investment activities in priority sectors and which have signed a contract with the authorised body on investments;
- those who are on a business trip, the duration of which in total does not exceed 120 calendar days during the same year.
Before 11 March 2012, the travel period limitation was 60 calendar days during the same calendar year.
This list is not exhaustive and includes only the most common cases. However, in most cases, engagement of all other foreign workers to work in Kazakhstan requires Work Permits.
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Pursuant to the Rules, a Work Permit is issued in accordance with the quota for foreign labour, which is set annually by the Government of the Republic of Kazakhstan. The decision on the quota amount shall be based on the analysis of the domestic labour market and related applications from employers.
To obtain Work Permits, the employer shall take the following actions:
1.1. Make a search for the respective candidates within the internal labour market. The search is performed by sending information about the hot vacancies to the Territorial Authorised Agency at the place of employment of an engaged foreign worker.
This requirement does not apply when engaging foreign workers for the territory of a special economic zone, as well as among ethnic Kazakh nationals and former compatriots.
In this case, according to the laws in effect before 11 March 2012, during the search it was also required to publish a vacancy announcement in national and local periodicals.
1.2. An employer has to obtain from the authorised body a certificate stating that it was not able to find the appropriate candidate in the internal labour market to meet the demand on labour, or, in the opposite scenario, the list of appropriate candidates. The employer must interview those candidates to determine their suitability for the vacant job.
1.3. In the event that no suitable candidate is found in the domestic labour market, the employer no earlier than 15 calendar days after the search (item 1.1) shall provide an application for engaging foreign labour with the corresponding list of documents.
As of 11 March 2012, the application must also include:
- medical insurance;
- medical certificate confirming the absence of disease preventing from the employment at chosen speciality;
- references concerning the presence or absence of prior conviction.
Moreover, please note that before 11 March 2012 the legislation additionally required that the above application be submitted no later than 2 months after the search (item 1.1).
The decision on whether to issue or refuse the issue of the Work Permit shall be made within 15 business days of the date of the document’s acceptance. The authorised agency shall notify the employer in writing of the decision made within 5 business days.
1.4. After the receipt of the notice, the employer within 20 business days shall provide the Territorial Authorised Agency with the documents that guarantee the departure of the foreign workers to their permanent places of residence upon the expiry of the Work Permit. In particular, the employer shall submit a copy of the deposit agreement between a bank and the employer, as well as a document confirming the guarantee fees to the bank account of the employer.
Moreover, in practice, the territorial authorised agency requires a certificate from an air agency with the information about the cost of a one-way trip from the place of work to the permanent place of residence.
1.5. The territorial authorised agency shall issue the Work Permit within 3 business days of the receipt of the notice and all the attached documents.
The validity period of Work Permits are directly established by the Rules.
- first category — up to 3 years, except for small business entities;
The Rules provide for the annual renewal of the Work Permit under this category for 1 year.
Employers which are small business entities are allowed to obtain this type of Work Permit for 1 year with the option to renew it no more than twice.
- second category — 1 year;
The Work Permit may be renewed for 1 year and not more than twice.
- third category — 1 year;
The Work Permit may be renewed for 1 year and not more than twice.
- fourth category — 1 year.
The Work Permits for this category cannot be renewed.
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Please further note that since 11 March 2012 the Rules provide for a mechanism for self-employment of a foreign worker. Under this mechanism, a foreign worker may independently obtain a work permit.
In general, control over compliance with the requirements of regulatory act governing the engagement by Kazakhstani employers of foreigners and stateless persons, is becoming more strict.
Amendments to the legislation allow to minimise gaps in the process of engagement of foreign workers and to improve the protection of the Kazakhstani labour market.