The Supreme Court of the Russian Federation has amended the inconsistencies of some provisions of the Administrative Regulation * (hereinafter – the Regulation) to the provisions of the Federal law “On the legal status of foreign citizens inside the Russian Federation” of the 25 July 2002, No. 115-F3 (hereinafter – the Law).
According to par.1 of Article 136.25 and par.1 of Article 136.27 of the Regulation, the announcement about the prolongation of the effective term of the work permit for highly qualified specialists (hereinafter – HQS) is being rejected, while previously issued work permits to HQS personnel are being annulled in case if the employer or the party ordering the works (services) has violated the terms of attracting HQS personnel to employment inside the Russian Federation, which stipulates the transfer of salary (remuneration) in the amount of or exceeding 2 million Rubles for the period not exceeding one year.
The Law stipulates a closed list of grounds upon which the employer or the party ordering the works (services) can receive a rejection for the prolongation of a work permit granted to HQS personnel. One of the grounds for the rejection is the violation of terms provided for the attraction of HQS personnel to work upon a previously granted work permit and assuming the transfer of salary (remuneration) to the HQS personnel in the amount of or exceeding 2 million Rubles. However, according to the Law, the given provision must be fulfilled not within a period not exceeding one year as stipulated by the Regulation, but within a period corresponding to 365 calendar days.
In addition, the Law does not provide an annulment of the work permit for the HQS personnel upon grounds of a violation of terms concerning the level of transferred salary (remuneration). As a result, the migration authorities have no authority to annul a previously granted license to HQS personnel even in the case if the level of transferred salary (remuneration) received by HQS personnel has not reached 2 million Rubles in the period of one year (365 calendar days).
In its decision of 16 October, 2012, No. GKPI12-1250, the Supreme Court of the Russian Federation has decreed the provisions of the Regulation to be ineffective with regard to the fact that they contradict the provision of the Law and can lead to ambiguity of its interpretation and, as a result, its arbitrary application. The Supreme Court has confirmed that upon the above stated issues, the Law must act as the main guideline.
Regardless of the fact, the employers should remember that in case of violation as a result of their negligence of obligations taken upon themselves before HQS personnel (including issues of transfer of salary (remuneration) for one year (365 calendar days)), they can be held responsible and be forbidden to attract foreign citizens as HQS personnel for a period of 2 years from the day, when the corresponding provisions were made known to the federal executive authorities of the migration service.
Note: *- The administrative regulation of the provision of the Federal migration service, of the executive authorities responsible for the subjects of the Russian Federation, fulfilling the delegated responsibilities of the Russian Federation concerning the provision of assistance to the labor force, by the Federal agency of sea and river transport services and the Federal agency of fisheries of the government service for the issuance of decrees about the attraction and use of foreign workers, the licenses for the attraction and employment of foreign workers, and also the work permits for foreign citizens and individuals without citizenship, as decreed by the Federal migration service of the Russian Federation, the Ministry of health and social development of the Russian Federation, the Ministry of transportation of the Russian Federation, the Government committee for fisheries of the Russian Federation as of the 11 January, 2008, N 1/4/1/2.