This article was prepared by Maria Lazareva, Сonsultant of Сonfidence Group
What is a patent and its renewal?
Patent is a document which confirms the right of a foreign citizen who arrive in Russia in order not requiring a visa, except for certain categories of foreign citizens (point 4 article 13 115-Federal Law "On legal status of foreign citizens in the Russian Federation" (hereinafter-115-Federal Law); point 1, Art. 97 of the “ Contract about Eurasian Economic Union"), on temporary labor activity on the territory of the Russian Federation.
There are several actions available in relation to a patent: a Patent can be issued (primary process documentation), prolongated (up to 12 months by paying fees in advance), and reissued (possible only if a foreign citizen already has a patent and works on it.
However, please note that some departments of the Ministry of internal Affairs suppose that in order to reissue a patent, a foreign citizen must work only for one employer (under an existing patent), and in the case of working under one patent for two or more employers, it is impossible to reissue a patent and only a new patent can be issued.
In this article, we propose to consider the process of re-issuance of a patent, the features, and responsibilities that arise for both the employer and the foreign citizen.
To renew a patent is possible in UVM GU MVD of Russia, for this purpose you need to contact the Ministry of interior must be submitted no later than 10 working days prior to the expiration of 12 months from the date of issuance of a valid patent, but we recommend to start the process a month before the end of the patent in order to have sufficient time to address emerging issues in the filing, and in extreme cases - exit and entry into the Russian Federation and issue a new patent.
The main advantage of reissuing a patent (as opposed to issuing a new one) is that you do not need to leave/enter the Russian Federation to get a new migration card required for filing documents (i.e. you can stay in the territory of the Russian Federation without leaving for 24 months).
The procedure for reissuing a patent is different in different regions. As a rule, the Ministry of internal Affairs delegates the authority to prepare / execute documents to a commercial organization, for example, a Multifunctional migration center (MMC) in Moscow (United migration center (UMC) in the Moscow region or MMC in Saint Petersburg).
You must have the following documents with you:
- original passport;
- original migration card, marked "Work" in the column " Purpose of entry»;
- original detachable part of the current notification of migration registration;
- original and copy of the current patent;
- original (if available) and copies of advance payments for the entire period of the current patent;
- the employer's application asking to renew the patent;
- a copy of the current labor/civil contract;
- a copy of the notification of the conclusion of an labor / civil contract;
- a document confirming the possession of a certain level of the Russian language, knowledge of the history of Russia and the basics of the legislation of the Russian Federation (if available).
- copy of the labor/civil law contract, with a mark of the Ministry of interior Affairs (confirming a copy of the contract in the corresponding division of the Ministry of internal Affairs within 2 months from the date of issuance of a valid patent).
Important: when accepting documents, the Ministry of internal Affairs checks for the presence of a notification of the employer about the conclusion of a labor / civil contract, as well as the provision of a copy of the employment/civil contract by a foreign citizen. If there is no information in the database of the Ministry of internal Affairs about filing a notification and providing a copy of the employment contract, the reissue will be refused.
Keep in mind that by law, as the notification of conclusion of the labor contract by the employer and a copy of the labor contract can be
sent, including by the post office, but if the documents were sent to the Ministry of interior affairs by post office, as a rule, the information is not included in the database, even the presence of the original of mailing list and the check is not accepted by Ministry of internal Affairs as proof of compliance with obligations on the part of the employer and foreign citizen. For entering information into the database in the event of a notification of labour contract or copy of a labour/civil law contract by mail, we recommend the employer, as well as foreign visit the office of the Ministry of interior affairs, which were sent the documents with the original of mailing list and receipts confirming the postal area with the request to submit the relevant information.
Further, the foreign citizen should pay for the services of Migration Center (the preparation of the application, medical examination, notarial translation of the passport, the examination on the Russian language, the basics of the history and legislation of the Russian Federation, etc.).
We do not recommend to prepare in advance the application form, the translation of the passport or other documents required for the renewal of a patent, as services are paid to Migration center in the complex, i.e. even if you bring your completed application the cost of Migration center’s services will not decrease.
After payment for services of Migration center a foreign citizen is sent for medical examination and passing the exam on knowledge of Russian language, Russian history and fundamentals of legislation of the Russian Federation (if necessary), after receiving the results (on the same day, except Saturday-Sunday) the documents are submitted to the Ministry of interior affairs for the renewal of a patent.
The processing time for reissuing a patent, in accordance with the regulations of the Ministry of internal Affairs, is 10 working days, but in practice the registration process may take longer. A foreign citizen may obtain a patent only himself at UVM GU MVD of Russia.
Important: depending on the region of exercise of occupation, different authorities of the Ministry of internal Affairs, responsible for patent registration have different attitudes to the transfer of advance payments. If the advance payments were made in a larger amount (i.e. if there is an overpayment for an existing patent), then when the patent is reissued, the overpaid payments may be partially or fully offset against the new (reissued) patent, but it is also possible that the transfer credit will not take place and you will need to pay an advance payment at the time of reissue of the patent (overpaid payments may be refunded through the tax service of the Russian Federation).
Obligation of an employer and a foreign citizen after receiving a reissued patent
Many foreign citizens, as well as their employers, mistakenly believe that the reissued patent is an extension of the primary patent and take any action to provide documents to the Ministry of internal Affairs is not required.
The fact is that the wording of the current legislation suggests that the first issued patent and the reissued patent are different patents (despite the same number), this follows from paragraph 5, article 13.3 of the Federal law-115:
- A patent is issued to a foreign citizen for a period of one to twelve months. The term of validity of the patent may be repeatedly extended for a period of one month or more. In this case, the total term of validity of the patent, including extensions, may not exceed twelve months from the date of issue of the patent.
Since the period of validity of the first patent was repeatedly (or once) extended for 12 months, it is not possible to extend it for a longer period.
After receiving a reissued patent (if an employment contract has already been concluded with a foreign citizen), the employer is obliged to conclude an additional agreement to the employment contract, in which the details of the reissued patent must be entered. You do not need to provide notifications about the conclusion of an additional agreement.
In accordance with point 7 Article 13.3, 115-Federal Law, during two months from the date of issuance of a patent a foreign citizen working the persons referred to in the first subparagraph of paragraph 1 of this article, must submit personally or send by registered mail with acknowledgment of receipt in territorial department of Federal enforcement authority in sphere of internal Affairs, issued patents, a copy of labor contract or civil law contract on execution of work (rendering of services).
But in practice, in some regions (e.g. Moscow and Moscow region) the situation is different, territorial department of federal authority of Executive power in the sphere of internal Affairs, issued patents, copies of employment/civil contracts and additional agreements will not accept, and directs citizens to provide copies of employment/civil contracts and additional agreements to the territorial office of the Ministry for Home Affairs at the place of migration registration.
Consequently, in the case of conclusion of the additional agreement to the existing employment contract, with details of the reissued patent, of the citizen's obligation providing copy (original for verification) of the additional agreement (with the data of the new patent), and also we recommend to provide a copy of the employment contract (stamp of the Ministry for Home Affairs, supplied previously, when making the primary patent) to the appropriate Department of the Ministry of interior (territorial body of the Federal authority of Executive power in the sphere of internal Affairs, issued patents, in accordance with the current legislation of the Russian Federation), no later than two months from the date of grant of the patent (the date indicated on the back side of the patent).
In view of the divergence of requirements of the Federal law with the requirements of the Ministry for Home Affairs (in some regions) is recommended to provide copies of concluded contracts (additional agreements) to the territorial departments of the Ministry of internal Affairs at the place of migration registration personally (to receive the mark of the Ministry for Home Affairs on the reception of documents), as well as duplicate copies of contracts and additional agreements by mail to the territorial body of the Federal authority of Executive power in the sphere of internal Affairs, issued patents, thus complying with the requirements of Federal law.
It should be noted that post notifications should be sent to the Department of business correspondence and work with citizens and organizations of the Ministry of internal Affairs (i.e. the secretariat) of the respective unit of the Ministry of interior (in accordance with paragraph 4 of part I. of MIA Order № 707 dated 12.09.2013 of the year "On approval of Instruction on organization of consideration of references of citizens in system of the Ministry of internal Affairs of the Russian Federation".
In accordance with paragraph 16 of part III The MIA order No. 707 informing of citizens on the system of the MIA of Russia is carried out by telephone, and by posting on the official websites of the MIA of Russia, its territorial authorities and organizations*(16) in the information-telecommunication network Internet*(17), at information stands and (or) information booths*(18) the following information:
16.1. The procedure and terms of consideration of references and normative legal acts, regulating the issues for their consideration).
Thus, before sending documents by post mail, you must make sure that the recipient's name and address are correct.
Important: it is possible to reissue a patent only once, i.e. if a foreign citizen continues to work for more than 2 years, it will be necessary to issue a new patent, which will require the foreign citizen to leave the Russian Federation and enter, after which it is possible to apply to the Ministry of internal Affairs for a new patent. At the time of applying to the Ministry of internal Affairs for a new patent, the validity of the migration card should not exceed 30 days (the recommendation of the Ministry of internal Affairs more than 20 days), indicating the purpose of entry "work".
Advance payment
In accordance with clause 5 of Article 13.3 of the Federal law 115-Federal Law, a patent is issued to a foreign citizen for a period of one to twelve months. The term of validity of a patent may be repeatedly extended for a period of one month or more. In this case, the total term of validity of the patent, including extensions, may not exceed twelve months from the date of issue of the patent.
The term of validity of the patent is considered extended for the period for which the tax on personal income was paid in the form of a fixed advance payment. In this case, an appeal to the territorial bodies of the Federal Executive authority in the field of internal Affairs is not required.
If payment of advance payments was not made or was made in violation of the established deadlines, in accordance with paragraph 5, article 13.3 of Federal law 115 "on the legal status of foreign citizens in the Russian Federation", the term of the patent expires on the day following the last day of the period for which the tax on personal income was paid in the form of a fixed advance payment
The patent is considered valid for the period for which the advance payment is paid.
Please note that the patent expiration date is considered a day earlier than it is written. In other words, if the patent has the date of issue on June 9, then payment in the next month must be made no later than July 8. This means that from July 9, in case of non-payment, the patent will be considered invalid.
In order not to make mistakes in the payment dates, you should focus on the date indicated on the back of the patent.
If something went wrong
The most common problems are related first of all to advance payments (late payment or default of payments), as well as obligation default after obtaining a patent.
In the event that payment of advance payments was still not made or the established deadlines were violated, the patent is considered to have expired at the time when payment of advance payments was last made correctly.
If the patent is not valid (expired), and the foreign citizen continues to engage in labour activities and this fact is revealed, then he will be brought to administrative responsibility in accordance with article 18.10 of the Administrative Violations Code of the Russian Federation for illegal employment of a foreign citizen or a person without citizenship in the Russian Federation -the imposition of an administrative penalty in the amount of five thousand to seven thousand rubles with administrative deportation from the Russian Federation.
In turn, in accordance with article 18.15 of the Administrative Violations Code of the Russian Federation, the employer will be administratively liable for illegal employment in the Russian Federation of a foreign citizen or person without citizenship, if this foreign citizen or person without citizenship does not have a work permit or patent, which entails the imposition of an administrative fine:
- for citizens in the amount of five thousand to seven thousand rubles;
- for officials - from thirty-five thousand to seventy thousand rubles;
- for legal entities-from four hundred thousand to one million rubles or administrative suspension of activity for a period of fourteen to ninety days.
Thus, we recommend that foreign citizens take a responsible attitude, and employers monitor the timely payment of advance payments.
What should to do if you found that advance payments were not paid on time or if these payments were not made at all, or if the obligation to provide a copy of the labor contract (additional agreement) was not fulfilled by a foreign citizen, but the patent has not yet been canceled on this basis.
For the beginning, you need to understand when the patent expires or has expired (a foreign citizen has not longer to make advance payments), from the next day after the expiration of the patent, it is possible to suspend a foreign citizen from work for up to one month (with following employee termination, if necessary) or immediately dismiss them at their own request. The end of the patent validity period is the basis for suspension from work for the period of registration of a new permit document, but no more than one month.
After a month from the date of suspension, if a new document allowing you to work is not provided, the foreign citizen must be dismissed.
A foreign citizen must leave the Russian Federation and enter to get a new migration card (the purpose of entry is "work") and will contact the Migration center no later than 30 days from the date of entry/The Ministry of internal Affairs to issue a new patent, while we recommend that the employer write a letter of justification for the Ministry of internal Affairs in connection with which a new patent is required, since the database of the Ministry of internal Affairs, the existing patent will usually be listed as valid.
After receiving a new patent a foreign citizen is allowed to work, additional agreement is made with the details of the new document, and if the contract was terminated, you need to conclude a new labor contract and provide to the Ministry of internal affairs the contract note of the employment contract. Also, a foreign citizen must provide a copy of the employment contract (additional agreement) to the relevant Department of the Ministry of internal Affairs within two months from the date of receipt of the patent.
These recommendations are suitable only if the patent is valid and the Department of internal Affairs of the Russian Federation in Moscow (or another region) does not decide to cancel the reissued patent until the new patent is received.
Important: you can never cancel a patent on your own application. It is critical that the patent has expired, and not been canceled. In accordance with paragraph 24 of Article 13.3 of the Federal law 115, if a foreign citizen was refused to grant or reissue a patent or a previously issued patent was canceled, this foreign citizen has the right to re-apply for a patent not earlier than one year from the date of refusal to grant or reissue a patent or cancellation of a previously issued patent.
Thus, having cancelled a patent at their own request, a foreign citizen can apply for a new patent no earlier than one year after the cancellation of the existing patent.
