Article is prepared by Maria Komissarova, a consultant of Confidence Group, 29.03.2016
A foreign legal entity that is commercial organization has the right to carry out activities in Russia through a branch or a representative organization right after the receipt of the corresponding accreditation.
When the certificate of registration in the register of accredited branches / representative offices of foreign legal entities in Russia is received, organizations are invited to certify the number of foreign workers in their companies, who are later issued with a certificate of personal accreditation. As a rule, there are no difficulties to certify up to five foreign workers. Branches / representative offices, intending to attract more than five foreign workers from the developed countries, may increase the number of foreign workers, but an increase of foreign workers from the "migratory-dangerous" countries is very difficult and unwarranted process for them.
Many employers believe that the phrase "certifying the number of foreign workers" automatically gives the right to hire foreign workers without a work permit, while others believe a work permit is not required for the employees who are working in Russia, but concluded an employment contract with the parent company located abroad which is paying the salary. Is it right? Is it necessary to issue a work permit for the employees of accredited branches / representative offices after all? Moreover, what is the FMS position on this issue?
In accordance with paragraphs 12 and 13, clause 1, Article 2 of the Federal Law as of July 25, 2002 № 115-FZ "On the Legal Status of Foreign Citizens in Russia" (hereinafter - the Law), the foreign workers are the foreign citizens temporarily residing in Russia and working under an employment contract or a civil contract on the execution of works (services).
The employers have the right to attract foreign workers if there is a permit to attract and use foreign workers, and the foreign citizen has the right to work if he/she reached the age of eighteen years with a work permit or a patent (Clause 4, Art. 13 of the Law).
Therefore, as a general rule the attracting of foreign citizens for work and services under an employment contract or civil contracts in Russia should be carried out only if the organization got the permission to hire foreign labor and a foreign citizen obtained a work permit (or patent).
According to the law the employer is a person or a legal entity received in the prescribed manner the permission to employ foreign workers on the basis of the employment contracts with them (clause. 2, Art. 13 of the Law). This federal law does not provide any exemptions for foreign legal entities. Taking into account the above rules, the employer can be any organization, employing foreign citizens in Russia, including acting as members of representative offices of the foreign organization, accredited in Russia.
Exceptions are accredited employees of representative offices of foreign legal entities in several countries on the basis of the principle of reciprocity in accordance with international treaties with Russia, and providing their compliance with certain conditions, a work permit is not required.
Such international treaties concluded with France, South Korea, as well as the EEU member countries, namely, Kazakhstan, Belarus, Armenia and Kyrgyzstan.
The fact that the FMS has always accepted and will continue to accept documents for the issue of work permits for this category of foreign citizens, confirms the need for a work permit for the employees of branches / representative offices. Upon that, it doesn’t matter whether there is a personal accreditation of such a foreign citizen or not. Moreover, the employer may issue a number of work permits, exceeding the certified number of foreign workers for this organization.
Therefore, the certifying a number of foreign workers with a further issue of personal accreditation of branch / representatives employees, when it comes along with the legalization of foreign citizens in Russia, is rather secondary item. And such a certifying is not a basis for work with the exception of cases provided by international treaties, as described above.
Foreign employees of branches / representative offices are supposed to be issued with the work permit under the standard procedure (obtaining a permit to employ foreign labor with a further issue of work permit up to 1 year), as well as under the program for highly qualified specialists for a period of up to 3 years.
Foreign employees of branches / from visa-free countries have to issue the patent for work.
Please note that the Chamber of Commerce and Industry of RF (the CCI) requires the provision of the original work permit when getting a visa support to foreign employees of branches of foreign legal entities.
It is also possible to use visa support by direct apply of the employer in the FMS.
Once the organization is registered, the branches / representative offices are entitled to issue invitations and visas for their employees on the basis of and for the duration of previously obtained work permits, bypassing the CCI.
In summary, we would like to point out once again, that we do not see any grounds to fail the issue the work permit for foreign employees working in Russia by representative offices and branches of foreign companies. Moreover, the penalties for illegal employment of foreign citizens in Russia are very impressive, and the cases of sanctions are not so rare.
