Engagement of foreign workers: work permits and visas (Elvira Khairoullina, Senior Associate International Law Firm Integrites, Kazakhstan)
Engagement of foreign workers: work permits and visas
International Law Firm Integrites, Kazakhstan
Under the laws of the Republic of Kazakhstan, the work of foreign employees in Kazakhstan requires in certain instances a work permit and a work visa.
Foreign Work Permits
There are two types of work permits:
1)a work permit issued to a foreign employee; and
2)a permit issued to an employer for engaging foreign employees.
The laws of Kazakhstan establish an extensive list of foreign workers who do not need a work permit. This list includes, among others, the following persons:
·the workers from the Russian Federation and the Republic of Belarus;
·chief executive officers of branches and representative offices of foreign legal entities; and
·chief executive officers of organizations who entered into investment contracts with the Government of the Republic of Kazakhstan for over 50 million US Dollars and chief executive officers of Kazakhstani legal entities which make investments in the priority activities and enter into the relevant contract(s) with the competent investment authority.
The work permit mentioned in clause 1 above is issued to foreign employees specified in the List of Occupations for Self-Employment of Foreign Workers in Kazakhstan. The List contains 30 names of occupations, including certain categories of engineers, specialists in the field of information technologies, professionals in the field of aviation and space, and others.
The work permit indicated in clause 2 above is issued to an employer for engaging a certain number of foreign workers within the quota as distributed by the competent labor authority.
Both of the above mentioned work permits are issued by the local executive body.
The procedure for obtaining a work permit is regulated by the Rules and Conditions for Issuing a Work Permit, as approved by Resolution of the Government of the Republic of Kazakhstan No.45 dated January 13, 2012 (the «Rules»).
Set forth below are the conditions and the procedure for issuing a permit for engaging foreign employees.
For the purposes of issuing the above type of work permit, the Rules determine 4 (four) categories of foreign employees:
·the 1st category - chief executives and their deputies;
·the 2nd category - heads of a company’s departments;
·the 3rd category -professionals; and
·the 4th category - skilled workers.
Based upon the relevant category, the competent authority determines special conditions to be performed by an employer with respect to a certain number of Kazakhstani nationals. Such conditions include:
·training and re-training of Kazakhstani nationals in certain skilled and professional occupations;
·professional development of Kazakhstani nationals; and
·creation of new vacancies for Kazakhstani nationals.
The fulfillment of special conditions is mandatory. A non-fulfillment thereof might in the future result in the competent authority’ refusal to issue a new work permit or to extend an existing work permit.
Prior to applying for a work permit, an employer must, among other things:
·ensure that: (i) the number of 1st and 2nd category foreign specialists to be engaged by him does not exceed 30% of the total number of his 1st and 2nd category Kazakhstani workers; and (ii) the number of 3rd and 4th category foreign specialists to be engaged by him does not exceed 10% of the total number of his 3rd and 4th category Kazakhstani workers; and
·deliver to the competent authority information about available vacancies (such information shall be delivered no later than 15 calendar days prior to the date of filing the application).
Provided that the employer agrees to fulfill the established special conditions, meets the above ratio between the local and foreign employees, and observes the other terms and conditions under the Rules and there are no required professionals or workers in the Kazakhstani labor market, the employer is granted to a permit for engaging foreign employees.
With respect to the 1st category of employees, such permit is issued to an employer which is not a small business entity for up to 3 years with an annual extension thereof for a period of 12 months. The 1st category permit to an employer which is a small business entity is issued for a period of 12 months, with a possible extension thereof no more than twice. For the 2nd and 3rd categories, the work permits are issued for 12 months with a possible extension thereof no more than two times, each time for up to 12 months. For the 4th category, a work permit is issued for up to 12 months. The 4th category work permit is non-renewable.
In practice, the work permit to an employer is issued within a period of 1.5 months.
As mentioned above, foreign nationals arriving to Kazakhstan for employment need to have a work visa.
There are 5 categories of work visas: M1, M2, M3, M4, and M5.
The M1 visa is issued to:
·foreigners to work on the basis of a work permit; and
·foreigners who do not need a work permit under the laws of the Republic of Kazakhstan or international treaties.
The M2 visa is for family members who are dependents of individuals receiving the M1 visa.
The M3 visa is for people traveling to Kazakhstan to provide the local executive bodies with the documents necessary to obtain a permit for work in Kazakhstan.
The M4 visa is for business immigrants.
The M5 visa is for seasonal foreign workers.
The above work visas are issued based upon a visa support. For visa support, it is necessary to submit the following documents to the Ministry of Foreign Affairs of the Republic of Kazakhstan (MFA):
• a letter in the established form, containing confirmation by the employer of his invitation with respect to the relevant foreigner;
• a copy of the employer’s charter (notarized in the current year);
• a statement of state registration (re-registration) of the employer as a legal entity;
• power of attorney from the employer;
• confirmation that the employer has no outstanding taxes;
• notarized copy of work permit; and
• receipt for payment of consular fee.
As a matter of law, visa support is provided within 5 business days.
In addition to visa support, to obtain a work visa, the following is required:
• completed application form;
• the applicant’s passport;
• photo 3,5 x 4,5 cm; and
• receipt for payment of consular fee.
Visas are issued:
1)if in Kazakhstan, by the MFA; or
2)if abroad, by the foreign establishments of the Republic of Kazakhstan, which include diplomatic missions and consular offices of the Republic of Kazakhstan abroad.
The statutorily established timing for issuing a visa is 5 business days from the date of submission of all of the required documents.