FOREIGN WORK PERMITS. VISAS. LICENCING

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1 2013 FOREIGN WORK PERMITS. VISAS. LICENCING Head of Legal Practice: Dmitry Chumakov, Partner

2 FOREIGN WORK PERMITS The procedure for obtaining foreign work permits in Kazakhstan (the "Work Permit") is quite complicated. It is governed by Resolution of the Government of the Republic of Kazakhstan No. 45 dated 13 January There are quotas for foreigners who are permitted to work in Kazakhstan determined by law and these quotas are distributed between oblasts (Kazakhstan provinces). Violations of the rules for obtaining work permits entail negative consequences both for employers and foreign workers. Moreover, such violations may have a general adverse effect on your business in Kazakhstan. There have been instances when companies faced difficulties in expanding their presence in the country precisely because they could not obtain a sufficient number of Work Permits. Foreign Work Permits may be granted either to the employer or directly to foreign workers for the occupations included into the list of persons who are permitted to independently seek employment in Kazakhstan. No Work Permit is required for the following categories of workers who: 1) are not immigrants in accordance with the Law of the Republic of Kazakhstan On Migration of the Population dated 22 July 2011 (the Law ), other than persons staying in Kazakhstan for up to 90 calendar days for the purposes not provided for by the Law; 2) permanently reside in the Republic of Kazakhstan; 3) are ethnic Kazakh repatriates (Oralmans); 4) are business immigrants; 5) have been granted the status of refugee or asylum seeker; 6) are immigrants coming to the country for humanitarian motives in accordance with the Law, 7) are sentenced by courts of the Republic of Kazakhstan to imprisonment, conditional sentences and sentence not involving confinement; 8) are victims of human trafficking for the duration of the proceedings in a specific criminal case related to human trafficking until the court judgment becomes effective; 9) are adults entering the Republic of Kazakhstan for family reunion purposes, spouses of citizens of the Republic of Kazakhstan who have remained for at least three years in marriage recognized by the laws of the Republic of Kazakhstan; 10) are studying full-time and working part-time during studies in educational institutions of the Republic of Kazakhstan 11) are on a business trip the duration of which does not exceed in aggregate 120 calendar days within one calendar year; 12) are citizens of the member states of the Agreement on the Legal Status of Migrant Workers and Their Family Members dated 19 November 2010; 13) are working in the capacity of chief executive officers of branches or representative offices of foreign legal entities; 14) are working in the capacity of chief executive officers of organizations who have investment contracts with the Government of the Republic of Kazakhstan for over 50 mln US dollars and chief executives of legal entities of the Republic of Kazakhstan who make investments in priority activities and have contracts with the competent investment authority; 1

3 15) are members of marine and riverine craft and aircraft, rail and road transport facilities; 16) are working in the capacity of actors, directors, conductors, choirmasters, choreographers, artists, private tutors, athletes and coaches; 17) are working in the Almaty city regional financial centre in the capacity of executives and specialists holding post-secondary and tertiary degrees with valid documents confirmed in the manner prescribed by the laws of the Republic of Kazakhstan; 18) are professionals specializing in construction of the space missile complex and operation of the ground space infrastructure engaged under international agreements on aerospace co-operation signed by the Republic of Kazakhstan; 19) are working in the national management holding company, National Medical Holding JSC and health care organizations whose charter capital is fully owned by National Medical Holding JSC and holding job titles of at least heads of structural subdivisions and higher education degrees documented in the manner prescribed by the laws of the Republic of Kazakhstan; 20) are employed as members of boards of directors (supervisory boards) of the national management holding company National Medical Center JSC and healthcare organizations whose charter capital is fully owned by National Medical Holding JSC; 21) are engaged in health care and consulting activities in the National Medical Holding JSC and healthcare organizations whose charter capital is fully owned by National Medical Holding JSC; 22) are employed by independent educational organizations, their institutions, and by the Nazarbayev Fund as chief executives, managers and specialists holding a tertiary (college or university) degree; 23) are seconded to an independent educational organization under agreements on introduction and fulfilment of education programs and/or provision of educational services; and 24) are working in higher education institutions the development of which is stipulated by government industry and innovation development programs in the capacity of chief executive officers and tutors holding tertiary degrees as evidenced by documents in the manner prescribed by the legislation of the Republic of Kazakhstan; 25) are working in the capacity of teachers/tutors in general secondary, technical, vocational, postsecondary and higher educational organizations of the Republic of Kazakhstan in accordance with the international treaties on cooperation in the field of education, but not exceeding 25% of the staff; 26) are faculty members of higher educational organizations awarded special status in accordance with the laws of the Republic of Kazakhstan; and 27) are working in the Central Asian Regional Environmental Center operating under the Agreement on the Operating Conditions of the Central Asian Regional Environmental Center. Foreign Work Permits are granted for four categories of foreign workers: 1) 1 st grade chief executives and their deputies; 2

4 2) 2 nd grade senior managers of structural subdivisions meeting the qualification requirements set out in the occupational skills guide for senior managers, professionals and other employees and standard job descriptions for senior managers, professionals and other workers; 3) 3 rd grade skilled professionals meeting the qualification requirements set out in the occupational skills guide for senior managers, professionals and other employees and standard job descriptions for senior managers, professionals and other workers; 4) 4 th grade skilled workers meeting the qualification requirements set forth in the Unified Salary and Wage Rates, Occupations and Skills Guide for skilled workers and standard job descriptions for skilled workers. Prior to applying for a Work Permit in Kazakhstan, the employer must determine and consider the following: 1) the number of foreign workers to be employed in Kazakhstan and their country of citizenship; 2) effective 1 January 2012, the number of 1 st and 2 nd grade foreign specialists must not exceed 30% of the total number of 1 st and 2 nd grade workers); 3) effective 1 January 2012, the number of 3 rd and 4 th grade foreign specialists must not exceed 10% of the total number of 3 rd and 4 th grade workers); 4) the region in Kazakhstan where it is intended to employ foreign workers; 5) job titles of foreign workers; 6) professional credentials/recommendations of foreign workers taking into account the specific features of the vacancy: work record; and education; 7) the age of foreign workers (not younger than 23 and not older than 63 for men and 58 for women); 8) whether special conditions of the work permits issued in the previous and current year have been met; 9) parameters and qualities showing that foreign workers have an objective advantage over Kazakhstan professionals; 10) local workers hiring plans; 11) plans for substitution of foreign workers with local personnel; and 12) plans for training/re-training and professional development of local personnel. The below is a description of the Work Permit obtaining procedure: Step One. The employer performs a search for eligible candidates in the relevant labour market and notifies the competent authority for the relevant foreign labour market of available vacancies in accordance with the Law of the Republic of Kazakhstan On Employment of 23 January The competent authority accepts the employer s foreign work permit application only in fifteen calendar days after the notice of the available vacancies. Step Two. The required documents are filed with the competent government authority. In order to obtain a foreign work permit, the employer or its authorized person has to file an application (accompanied by the below documents) through the E-licensing Government Database (in digital form) or with the local competent authorities in the location where the given foreigner performs its labour activities (a hardcopy). 3

5 The following documents must be presented to the competent authority: 1) results of the Kazakhstan candidates search in the employment authorities information database; 2) information on compliance with the special requirements (if any) of the Work Permits issued for the previous and current calendar year, if such requirements are due. 3) information on foreign job seekers ; 4) documents confirming qualifications of foreign job seekers; 5) notarized translation of education certificates; 6) work record of the worker appending thereto written proof of such worker's work experience on the official letterhead of the employer who previously employed the worker or any other documented confirmation of such employment recognized in the Republic of Kazakhstan; 7) calculation of Kazakhstan personnel content in accordance with the prescribed form; 8) opinion of the central science and education executive body of the Republic of Kazakhstan confirming that the foreign worker meets professional qualification requirements for foreign nationals and stateless persons to be employed as faculty members or research workers of higher education and research organizations; 9) a notarized copy (together with translation into Kazakh or Russian) of the employment contract between the foreign employer and foreign job seeker specifying the amount of compensation of such foreign worker as may be required by the laws of the Republic of Kazakhstan; and 10) a notarized copy (together with a translation into Kazakh or Russian) of the contract for performance of work or provision of services, as may be required by the laws of the Republic of Kazakhstan; Through the E-licensing Government Database or in writing, the competent authorities must notify the employer, within three business days after the receipt of the application, of its decision either to issue/refuse to issue the foreign work permit or to extend/refuse to extend the foreign work permit. Step 3. The employer assumes one or several special conditions: 1) professional training of Kazakhstan nationals in skilled and professional occupations which are in demand in the regional labour market in accordance with the list approved by the competent authority; 2) re-training of citizens of the Republic of Kazakhstan in skilled and professional occupations which are in demand in the local labour market in accordance with the list approved by the competent authority; 3) professional development of the citizens of the Republic of Kazakhstan; and 4) creation of new jobs for citizens of the Republic of Kazakhstan. Step 4. Upon the receipt of notification on the issuance or extension of a foreign work permit (either through the E-licensing Government Database or in writing), the employer must, within twenty business days, provide the competent authorities with the documents guaranteeing the departure of the foreigner from Kazakhstan after his/her work permit expires (a copy of the agreement between a bank and the employer and the documents certifying a security deposit in the employer s bank account). 4

6 Step 5. Within three business days from the receipt of the documents guaranteeing the departure of the foreigner from Kazakhstan, the competent authorities must issue the permit either through the E-licensing Government Database or in writing. The competent authority will refuse to issue a Work Permit when: 1) not all required documents are filed and/or the documents are not in due form; 2) the special requirements (if any) of Work Permits issued for the previous and current calendar year have not been met in due time; 3) the distributed quota has been exceeded; 4) the foreign job seeker does not meet category and qualification requirements; 5) the employer engages other expatriates without work permits (in such case the work permit is not issued within twenty months from the date when such fact is established); and 6) the employer does not meet the ratio between the local and foreign employees. Once a foreign work permit is granted by the competent authority, it may not be transferred to other employers and will be valid only within the particular administrative and territorial unit for which it is granted; employers are also prohibited to send foreign workers for whom work permits have been granted to business trips to companies and organizations which are located in other administrative and territorial units for a period exceeding sixty calendar days within one calendar year. For a foreign worker to be allowed to perform his or her job functions in several administrative and territorial units for more than sixty calendar days within one calendar year, the competent authority, upon the employer s request and upon approval from the competent labour authority, will grant or extend the foreign work permit to be valid in two or more administrative and territorial units. Work Permits may be extended maximum twice depending on the categories of workers. A failure to comply with the procedure for employment of foreign workers may entail: for the employer's chief executive administrative liability (fine) or criminal (in the event of several instances of violation) liability; for the employing company administrative liability (fine); and for the foreign worker administrative liability (fine and deportation). If the foreign worker is deported, Kazakhstan migration authorities may deny new visas or entry to Kazakhstan for such worker in the future. Violations of the work permits statutory requirements and regulations may also entail refusal of future Work Permits for foreign workers to be employed in the Republic of Kazakhstan. 5

7 VISAS The visa regime for foreigners staying in the country is determined by Kazakhstan migration laws. Under this regime, foreigners are required to obtain a visa to enter the territory of the country and register with local authorities. There are several types of visas. Each type of visa is issued for specific purposes of stay of foreign nationals in Kazakhstan. The most popular visas for business purposes are investor visas, business visas and work visas. These visas may be issued as single-entry, double-entry, tripleentry and multiple-entry visas. Investor Visa Investor visas are issued to CEOs and top managers of foreign firms and companies that are investing in Kazakhstan s economy and have contracts with the Government of the Republic of Kazakhstan if such contracts investment value is over 50 mln US dollars. With an investor visa, visa holders may bring their family members to stay with them in Kazakhstan. Investor visas give their holders the right to enter, stay in and leave the Republic of Kazakhstan within the period specified by the visa. Investor visas are usually issued for a period of up to one year. Investor visas are issued by departments of the Ministry of Foreign Affairs abroad or, if the foreign national is in Kazakhstan, by the Ministry of Foreign Affairs at the request from government authorities and agencies of the Republic of Kazakhstan and foreign state missions accredited to the Republic of Kazakhstan. Business Visa Business visas are issued to foreign nationals arriving and staying in the Republic of Kazakhstan for business purposes (e.g., a business trip, business negotiations that are of strictly business and commercial nature, etc.). Under the standard procedure, business visas require a letter of invitation from the inviting party and, in certain events, permission from internal affairs authorities. In addition to the standard procedure, business visas may be obtained under the simplified procedure, when only a written application of a foreign national is sufficient. The simplified procedure is applicable to citizens of USA, Canada, France and certain other countries (a list of such countries is determined by the laws of the Republic of Kazakhstan). Business visas are issued by departments of the Ministry of Foreign Affairs abroad or, if the foreign national is in Kazakhstan, by the Ministry of Foreign Affairs and the Ministry of Internal Affairs, the Department of Internal Affairs of oblasts and the cities of Astana and Almaty for a period of up to 1 year. If the place where the visa is obtained is different from that specified in the letter of invitation (also a visa support document ), the visa is issued at the place of application (apart from consulates in the Republic of Kazakhstan ) subject to subsequent notification thereof to the Ministry of Foreign Affairs of the Republic of Kazakhstan. Business visas do not give the right to family members of business visa holders to enter Kazakhstan. Work Visa Work visas are issued to foreign nationals arriving to Kazakhstan for employment purposes. 6

8 In order for a foreign national to obtain a work visa, the inviting party (employer) is required to have a foreign Work Permit. Certain categories of foreign nationals and stateless persons, including, among others, chief executive officers of branches or representative offices of foreign legal entities (a list of such categories is determined by the laws of the Republic of Kazakhstan), are exempt from the requirement to have a work permit in Kazakhstan. Work visas are issued by departments of the Ministry of Foreign Affairs abroad (or, if there is no such department abroad, by authorized representatives of the Republic of Kazakhstan) for a period of up to 1 year and may be extended upon expiration of the initial term through a new visa issued by the Ministry of Internal Affairs or internal affairs authorities. Family members of the work visa holder entering the country together with such work visa holder are not permitted to work in Kazakhstan. Any subsequent employment of such family members in Kazakhstan is subject to a foreign work permit obtainable by their employer (save for when such permit is not required) and a new work visa. Registration of Foreign Nationals Foreign nationals must get registered with relevant authorities by submitting their passports for registration. Depending on visa types and categories and the issuing body, passports are registered by departments of the Ministry of Foreign Affairs abroad or border control departments of the Border Police of the National Security Committee. Passports are registered by putting a stamp or mark on visa stickers or by issuing a migration card at the time of issuing the visa or crossing the border. Registration is issued for a period of maximum 90 days after the visa issuance date, but not exceeding the term of the visa. Registration may be extended by internal affairs authorities at the place of temporary stay of the foreign visitor. 7

9 LICENSING Activities that are subject to licensing are determined by the legislation of the Republic of Kazakhstan. The principal law governing licensing is Law of the Republic of Kazakhstan On Licensing No. 214-III of 11 January A license is a permit issued by a competent authority to a private individual or legal entity to carry out certain types of activities. Licensable activities may be carried out only subject to a license. Licenses are issued to applicants by licensors who are determined by legislative acts of the Republic of Kazakhstan and/or the Government of the Republic of Kazakhstan. The Government authority supervising relevant competent authorities in the field of licensing is appointed by the Government of the Republic of Kazakhstan (currently, these functions are performed by the Ministry of Economy and Budget Planning of the Republic of Kazakhstan). Areas of Licensing Licensing is required for certain activities in the following areas: 1) industry; 2) utilization of nuclear energy; 3) circulation of poisonous substances; 4) transportation; 5) circulation of narcotic drugs, psychotropic substances and precursors; 6) information security; 7) special technical devices for performance of investigation activities; 8) circulation of arms, military equipment and certain types of weapons, combustible substances and items containing combustible substances; 9) use of the outer space; 10) informatization and communications; 11) education; 12) mass media; 13) agriculture; 14) health care; 15) services to individuals and legal entities; 16) gambling; 17) veterinary; 18) forensics subject to the provisions of the Law of the Republic of Kazakhstan On Forensic Activity in the Republic of Kazakhstan; 19) culture; 20) financial field and activities related to concentration of financial resources; 21) architecture, urban planning and construction; 22) manufacture of state symbols of the Republic of Kazakhstan; 8

10 23) production and circulation of ethyl alcohol and alcohol products, production of tobacco goods; 25) exports and imports of goods; and 27) commodities markets. Information on specific types of licensable activities may be obtained from our office. There are various types of licenses that differ as follows: 1. By the licensee: 1) issued to individuals and legal entities of the Republic of Kazakhstan; and 2) issued to foreign legal entities, foreign nationals, stateless persons and international organizations. 2. By scope: 1) general issued to carry out a certain activity for an indefinite term; 2) single-term issued to carry out a certain business activity within the permitted term, scope, weight or quantity (either in kind or in cash), to carry out activities in gambling within the term as determined by the Law of the Republic of Kazakhstan On Gambling and to carry out activities on development of construction of residential buildings from the funds of interestholders within the limits set by the Law of the Republic of Kazakhstan On Interest Holding in Residential Construction Projects; and 3) operational to carry out certain banking operations and classes of insurance. The following documents are required to obtain a license: 1) an application; 2) for legal entities - a copy of the applicant's Charter (other than for export and import operations) and a copy of the applicant's certificate of state registration as a legal entity (must be notarized if the copies are provided without the originals for verification purposes); 3) for individuals - a copy of a personal identity document; 4) for sole proprietors - a notarized copy of the applicant's certificate of state registration as a sole proprietor (must be notarized if the copies are provided without the originals for verification purposes); 5) a copy of the applicant's registration with tax authorities (must be notarized if the copies are provided without the originals for verification purposes); 6) a copy of the document certifying the payment of the license fee for certain activities (must be notarized if the copies are provided without the originals for verification purposes); and 7) information and documents in accordance with qualification requirements. Legal acts on certain types of licensable activities may also set additional and specific requirements to the list of documents. In the manner established by law, the applicant is liable for the accuracy, completeness and promptness of the information contained in its documents. Unless otherwise is required by legal acts, licenses are issued within 15 business days after the application and all supporting documents are submitted. 9

11 In certain cases, licensors may require that the licensee provides proof of its compliance with the qualification requirements by the time set by the licensor. No license is granted if: 1) the laws of the Republic of Kazakhstan prohibit licensees of a particular category to carry out a particular activity; 2) the license fee to carry out a particular activity has not been paid if the application is for such activity; 3) the applicant does not meet the qualification requirements; 4) the license issuance has not been approved by the relevant authorities; 5) a court ruling prohibiting the licensee to carry out a particular activity has taken effect; and 6) a court, upon a petition made by a law-enforcement officer, has prohibited to issue the license. Licenses are terminated only in the following events: 1) expiration of the license term; 2) full performance of the activities (operations) for which the license is issued; 3) revocation of the license; 4) cessation of the activities of an individual, liquidation of a legal entity, and/or reorganization of a legal entity, other than reorganization in the form of merger, acquisition, spin-off or transformation; 5) voluntary return of the license and/or the appendix thereto to the licensor; 6) removal of a particular category and/or subcategory of activity from the list of licensable activities; 7) removal of the licensee from the list of those requiring a license; and 8) in other events provided for by the laws of the Republic of Kazakhstan. Licenses are re-issued in the following cases: 1) change of the first name, middle name (if any) or surname of an individual; 2) re-registration of a self-employed entrepreneur or change of his name or address; 3) reorganisation of a legal entity by way of merger, acquisition, spin-off or restructuring; and 4) change of name and/or registered address of a legal entity. The licensee shall submit an application for re-issuance of a license within thirty calendar days. The application must be supported by the documents certifying the payment of license fee applicable to license re-issuance. When the licensee fails to pay the license fee, the licensor refuses to re-issue the license and/or appendix thereto. When a license and/or appendix thereto is lost or damaged, the licensee may obtain a duplicate copy of such license and/or appendix thereto. When a license is issued in hardcopy, the licensee may convert it into an electronic format without obtaining a duplicate hardcopy. Any lost or damaged licenses and/or appendices thereto are deemed invalid from the date of the licensee s written notice of the licenses/appendices loss or damage. 10

12 Within two days after such notice, the licensor must issue a duplicate copy of the license and/or appendix thereto. The duplicate copy shall be assigned a new number and bear the DUPLICATE sign in the right upper corner. Duplicate copies of licenses and/or appendices thereto are executed in an electronic format. When an applicant or licensee requests a hardcopy of a license and/or appendix thereto, such license and/or appendix thereto are executed in an electronic format, printed out and affixed with the seal and signature of the licensor s CEO. A license is suspended or revoked when the licensing legislation is violated. A license for certain activities may be suspended for a period of up to six months. A license for certain activities may be revoked only through the court. 11