An article was prepared by Anastasia Smetanina, consultant, Confidence Group
Russian companies that attract or just planning to attract of foreign citizen for employment, one way or another are faced with the necessity of registration of permits for foreign employees, but given the complexity and intricacy of the Russian migration legislation may not always make the right decision and to issue the correct permits.
In this article we would like to dwell on such a category of visa with for the purpose of travel - “maintenance” (hereinafter referred to as the “maintenance” visa), which is one of the possible options for implementing certain types of activities in the Russian Federation without issuing permits (work permit).
In the list of travel purposes published in the Order of the Ministry of Foreign Affairs of the Russian Federation, the Ministry of Internal Affairs of the Russian Federation and the Federal Security Service of the Russian Federation of December 27, 2003 N19723A/1048/922 “On Approving the List of “Purposes of Travel ”, there is such a purpose of entry - “maintenance”, which minimizes the number of necessary documents for the implementation of activities related to the provision of services free of charge by the host organization in the Russian Federation.
This type of visa is intended only for foreign citizens who are employees of foreign legal entities who, upon entering, can carry out installation (installation supervision) works related to servicing previously delivered equipment (tuning, warranty, and post-warranty service).
To apply for such a visa, an organization registered in the territorial department of the Ministry of Internal Affairs for Migration of the Russian Federation needs to apply for an invitation, which will state: the purpose of the trip is “maintenance”, and the category / type of visa is indicated as “ordinary business”.
Some Consular offices in the EU countries accept invitations for a “maintenance” visa, issued on the letterhead of the inviting organization in the Russian Federation in accordance with international treaties.
A “maintenance” visa may be:
- single / double, giving the right to single / double entry into the Russian Federation during the validity period of a visa from 1 to 3 months;
- multiple, giving the right to multiple entry into the Russian Federation during the validity period of a visa from 6 to 12 months with a total stay in the Russian Federation - 90 days out of every 180 days.
In order to apply for a “maintenance” category visa, an organization, as a rule, does not need to attach additional documents to the standard package of documents for a business invitation. But the documents confirming that the conditions prescribed by law for obtaining a “maintenance” visa have been met - such as: an agreement between the employer of the invited employee and the inviting party to the Russian Federation and documents confirming the fact of equipment delivery to the Russian Federation, may be required when applying for visas by the Consul of the Russian Federation. In addition, authorities will probably be interested in documents at the time of the migration inspection.
On the basis of issued business invitation with the purpose of a trip “maintenance”, a foreign citizen applies to the Russian consulate, receives a visa and enters the territory of the Russian Federation.
It should be noted that a foreign citizen must follow the rules of entry and exit, in due time make the migration registration in the place of stay, comply with the terms of stay in the Russian Federation and the purpose of entry. Responsibility for compliance with the purpose of entry and duration of stay will be borne by the inviting party.
The provisions of Clause 4, Articles 13, 115-ФЗ “On the Legal Status of Foreign Citizens in the Russian Federation” stipulate that the employer and the customer of works (services) have the right to attract and use foreign workers without permits, provided that they are employees of foreign legal entities (manufacturers or suppliers), perform installation (installation supervision) works, warranty service, as well as post-warranty repair of technical equipment supplied to the Russian Federation.
We pay special attention to the fact that this option of attracting foreign workers in practice applies exclusively to foreign citizens from visa countries, as only in such a document as a “visa” does this purpose of the trip exist - “maintenance”. Accordingly, citizens from visa-free countries, given the fact that they enter the Russian Federation without a visa, the purpose of the trip is “maintenance” is not provided.
In addition, this type of visa is quite specific. A foreign citizen really should only perform actions aimed at fulfilling the obligations of his foreign employer - the supplier / manufacturer in the field of installation (installation supervision) works, warranty services, as well as post-warranty repair of technical equipment supplied to the Russian Federation, as fixed in the relevant agreement. Once again, we would like to draw your attention to the fact that he has the right to perform exclusively the actions prescribed in this agreement, and these actions should not contain signs of labor activity by the Russian inviting party.
The migration office of the Main department on migration issues of the Ministry of Internal Affairs of the Russian Federation is rather wary of this category of visas and, and as a rule, in the case of inspections of a foreign citizen with a “maintenance” visa pays closer attention.
If it is founded that a foreign employee has carried out activities not fixed by agreements between the manufacturer or supplier of technical equipment and the organization on whose territory installation (installation supervision) works, after-sales and warranty service, as well as post-warranty repair of technical equipment delivered to the Russian Federation, the actions of a foreign citizen can be equated with labor activity, which means that there is a risk of being brought to administrative responsibility of both the company and the foreign citizen himself.
Moreover, the legislation provides for the following punishment for this violation, namely the imposition of an administrative fine:
- for citizens in the amount of from 2 to 5 thousand rubles;
- for officials - from 25 to 50 thousand rubles;
- for legal entities - from two hundred fifty to eight hundred thousand rubles or administrative suspension of activities for a period of fourteen to ninety days.
Violations committed in federal cities of Moscow or St. Petersburg or in the Moscow or Leningrad Region entail the imposition of an increased administrative fine of up to one million rubles.
Due to the fact that it is quite difficult to prove that the actions performed by a foreign citizen for the organization do not fall under the signs of labor relations, we recommend carefully inform the foreign citizen about the purpose of his stay not only in the organization, but in general in the territory of the Russian Federation.
The company that attracts the foreign citizen must give clear instructions on what and how (s)he should speak during the inspections of the relevant authorities. In addition, he should avoid concepts such as work, permanent work, etc.
To confirm his status indicated in the issued visa, a foreign citizen should always have copies of the following documents translated into Russian:
- an agreement that lays down the obligations of its employer to a foreign organization-manufacturer or supplier of technical equipment for the performance of which he sent to the Russian Federation (It should also be tracked and communicate with the inviting party in Russia);
- an employment agreement with a foreign employer by a foreign manufacturing organization or supplier of technical equipment;
- documents confirming the delivery of technical equipment in the Russian Federation.
Therefore, you and I were convinced that this visa is suitable for attracting foreign citizens in very limited cases, and therefore cannot be an alternative to issuing work permits, but if the relationship becomes long-term, it is strongly recommended that you issue a work permit and entry visa for the purpose of "Employment".
