Labor rights of foreigners in Russia
According to paragraph 16 of Art. 13.3 of Law No. 115-FZ, the employer must not involve a foreign employee in work outside the Russian Federation, where he has been issued a permit, that is, business trips abroad for a non-resident of Russia are excluded. If the document contains information about the profession, qualifications, position or types of work of a foreign citizen, then he cannot be hired in another specialty.
The patent is issued at the territorial branch of the Federal Migration Service of Russia (FMS) of the constituent entity of the Russian Federation where the foreign citizen will work. If the specified person wishes to work in another field, then he will again have to apply for approval and obtain a work patent from the local office.
Certificates of right to work are issued for a period of one month to one year. The validity of the document can be extended several times, but the total period should not exceed twelve months. Therefore, if an employer intends to renew an employment contract with its foreign specialist, it is necessary to ensure that the latter applies for renewal of papers (no later than 14 days before the expiration of the previous document).
Checking the validity of a patent is not an empty formality for an entrepreneur. The administrative fine for violating the law is:
- for officials – up to 50 thousand rubles;
- for legal entities - up to 800 thousand rubles, and in some cases even suspension of the enterprise for up to 90 days.
Checking the authenticity of a foreign employee's documents. New employer responsibility?
From time to time, all enterprises update their staff and are faced with a situation where they have to formalize an employment relationship with a foreigner. HR specialists sometimes (or rather, often) doubt the authenticity of documents of foreign citizens who are seeking to obtain a particular position.
An experienced HR specialist, if desired, will be able to refuse employment if there is any suspicion of forged documents. But the HR specialist, that is, the personnel officer, can be put under pressure by the heads of workshops, departments, and other middle managers, demanding to hire a foreign worker as soon as possible.
As a result, the HR specialist has a fair question:
Should he check the authenticity of a foreigner’s papers?
Not the presence, but the authenticity of documents?
And since it all comes down to money, the honest question is:
Will a personnel officer or an enterprise face a large fine for falsifying documents of a foreigner?
- What does the law say?
- Review of court decisions on counterfeit patents
- Review of court decisions on fake passports
- What documents need to be checked?
- Legal stay documents
- Patent for work
- Checking a patent through the Ministry of Internal Affairs website
- Documents of a foreign candidate from the EAEU
- conclusions
Obligation to check the documents of a foreigner in law
What does the law say on the issue of verifying the authenticity of a foreigner’s documents?
The legislation of the Russian Federation does not provide for the obligation to verify the authenticity of documents.
The Labor Code of the Russian Federation, Federal Law No. 115-FZ on the legal status of foreigners do not contain any rules obliging the employer to independently determine this issue.
This is also recognized by the Ministry of Labor.
But law enforcement practice is such that even in the absence of an obligation to examine documents for authenticity, the employer can and will be punished.
The Deputy Director of the Department explains in a letter to a question from a commercial company about the obligation to verify the authenticity of foreign documents, that responsibility has not been established, but you will still bear it if you accept a foreigner with invalid documents. Here he provides a link to the decision of the Leningrad Regional Court.
Review of court decisions on counterfeit patents
If an employee has provided a fake patent, then it is difficult for the employer to defend himself in court, despite the absence of a direct obligation to verify the authenticity of permits and patents. Violating enterprises are given administrative fines of enormous amounts.
Here are the court decisions of the appellate instances not in favor of employers:
- Decision of the Arbitration Court of the Vologda Region dated March 26, 2012 No. A13-14/2012 (upheld by the Resolution of the Federal Antimonopoly Service of the North-Western District dated September 26, 2012 No. A13-13/2012);
- Resolution of the Lyublinsky District Court of Moscow dated December 9, 2015 No. 12-1000/2015 (upheld by the Decision of the Moscow City Court dated November 26, 2015 in case No. 7-12588/2015);
- Decision of the Leningrad Regional Court of June 26, 2012 No. 7-316/2012, No. 7-320/2012.
In all of the above processes, the company’s lawyers referred to the fact that the employees themselves provided forged documents giving them the right to work. The judicial authorities reject this argument as untenable, reporting a missed opportunity to verify the authenticity of a patent on the migration service’s web resource.
At the same time, the court does not take into account that the site is malfunctioning, and in 30% of cases it does not provide information at all.
There is also a proposal from judges to send a request to the Office of Internal Affairs about the authenticity of the patent.
But 1 month is allotted for consideration of requests of this kind, plus time for postal work.
If construction organizations send requests for each candidate to the Department of Migration Issues, the number of defrauded shareholders may increase.
In fact, the courts impose on employers a duty similar to due diligence when choosing a counterparty from among legal entities. Only when choosing foreign workers.
But the concept of due diligence is enshrined in law
Review of court decisions on fake passports
There is already a judicial precedent for bringing to justice a company that hired a foreigner using a fake passport.
During an inspection of the enterprise, a citizen of Uzbekistan was identified with a false passport of a citizen of Kyrgyzstan. And for citizens of the EAEU, a passport is a permit document.
The plot of the case is as follows:
a citizen of Uzbekistan was fined and expelled from the country back in 2015. Having changed his last name and nationality (!!!), he has been living in Russia for 2 years using a passport of a citizen of Kyrgyzstan, which he bought at the Juno market for $100.
There is no information about his search for deportation by the migration service. Using a “fake” passport, an employee gets a job, the fact of a fake passport comes up at work, and the police come to the workplace to pick him up. He also introduces himself to police officers as a citizen of Kyrgyzstan (although in fact he remains a citizen of Uzbekistan). As a result, even the police were able to establish his identity only through fingerprinting.
After an administrative investigation, the employer is punished with a maximum fine of almost a million!!
The question of the guilt of the company’s employees was not particularly clarified.
Interestingly, the foreigner was not brought to administrative or criminal liability for knowingly forging a document.
How could personnel officers detect a fake passport? There was no way they could.
Does the Ministry of Internal Affairs web resource allow you to find out about the authenticity of a foreign document, for example, Kazakh, Armenian, Kyrgyz? Doesn't allow it.
Was there an intention to hire an illegal worker? No.
Has the employee actually started performing his job duties? Actually worked.
Pay a million fine!
What documents need to be checked
The task of the HR specialist is to find out 2 questions when hiring a foreigner:
- legality of stay on the territory of the Russian Federation;
- legal right to work or provide services under a civil contract.
In the Russian Federation, visa-free foreigners are allowed to work, who are divided into groups:
- citizens of EAEU countries - labor relations are formalized without a patent under an employment contract;
- citizens of Ukraine, Uzbekistan, Tajikistan, Moldova, Azerbaijan - by patent.
Legal stay documents
Documents confirming the legality of stay in Russia for both categories of foreign citizens are identical:
- passport
Particular attention to the date of last entry - if more than 2 years have passed since the date of last entry, the foreigner is an illegal immigrant;
- migration card
There are 2 important fields in the migration card:
- purpose of entry,
- border crossing date.
To work under a TD or GPA, the purpose of “work” must be indicated, and the date of entry must coincide with the stamp in the passport.
- migration registration
- not always and not everyone needs it, but it’s good when it is available, especially when a foreigner stays in the Russian Federation for more than 1 month.
If a company provides housing to an employee, then it must register for migration itself.
The information specified in the passport must match the information reflected in the migration card.
Availability of a patent and payment of patent fees
Citizens of Uzbekistan, Tajikistan, Moldova, and Azerbaijan must work under a patent. The minimum payment period for a patent is 1 month, payment is confirmed by receipts.
Review the advance payment dates carefully. If there are violations of the terms of payment for a patent for a work, such a patent is considered invalid.
Checking a patent through the Ministry of Internal Affairs website
Any employer knows about the service for checking a patent for work through the website of the Ministry of Internal Affairs of Russia - services.guvm.mvd.rf.
The only and very small plus is that you can check the fact that a patent was issued.
The service was launched back in 2011, during the time of the Federal Migration Service.
But both in 2011 and in 2021, the service does not work very well.
Issued patents appear in this database with a very long delay. Sometimes up to several weeks from the date the patent was issued. A request from the site is not recognized as official information.
Minuses:
- do not check whether this patent is paid for by a foreign worker,
- failure to check the authenticity of the migration card and migration registration,
- failure to check documents of employees from EAEU countries.
What documents do applicants from EAEU countries provide?
Applicants from Russia-friendly countries that are members of the EAEU are equal to Russians in labor rights, and they are not required to provide permits. They only need to present a passport of a citizen of one of these countries.
Only the legality of being on the territory of the Russian Federation is checked. If everything is in order, you can formalize the employment relationship with a contract and immediately allow you to work by sending a notice of the conclusion of the TD.
But don’t forget the legal precedent with the Kyrgyz passport.
Summary:
Advice:
If your company has a large staff and high staff turnover, conduct a migration audit at least once every 3 months.
Check the completeness and accuracy of the documents submitted by foreign workers.
If there are no specialists on staff, you can order a migration audit from our company.
Migration Audit. Prices, terms, procedure
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Rules for hiring foreigners
Having hired a migrant and concluded an employment contract with him, after some time you need to find out whether his patent has been revoked? This can happen if the employee has not submitted to the Federal Migration Service a copy of his contract with the employer (no later than two months from the date of issue of permits).
After the adoption of Law 109-FZ, the employer is not obliged to issue a foreigner with a residence permit at the place of registration of the activity (Article 2).
That is, a worker without Russian Federation citizenship has the right to register for migration at the place of employment, but whether the employer has residential premises at the registration address or not, does not matter.
The essence of migration registration: the ability to quickly find a foreign citizen at the place of residence, and the address of temporary registration at the place of residence may be different (due to their similarity, these terms are mistakenly combined into one).
Who, why and in what situations checks a patent
The main purpose of verification is to verify authenticity. This is necessary when hiring a foreign citizen to work in the Russian Federation, since violations of the law lead to sanctions.
The following are authorized to check permissions:
- Immigration control authorities;
- Heads of enterprises;
- HR departments.
In addition to availability and authenticity, the following is also checked:
- Validity;
- Fact of payment.
What did the mistake mean for the organization?
An organization can hire a foreign citizen if he has a work permit or a patent.
A patent is issued to a foreign citizen for a period of 1 to 12 months.
The validity period of a patent can be repeatedly extended for a period of one month. In this case, the total validity period of the patent, taking into account extensions, cannot be more than 12 months from the date of issue of the patent.
The court found that the organization hired a foreign employee with a fake patent.
However, she did not take any measures to check it. In defense of its position, the firm pointed out that the law does not impose such obligations on employers.
The court did not agree with this. In his opinion, the company should have checked the validity of the patent.
Since this was not done, he recognized the lawfulness of imposing a fine on the employer in the amount of 400 thousand rubles on the basis of part 4 of article 18.15 of the Code of Administrative Offenses of the Russian Federation.
This conclusion was reached by the Moscow City Court in its decision dated December 2, 2020 in case No. 7-14102/2020.
Officials also agree with this approach. Thus, the Ministry of Labor, in letter No. 14-2/B-966 dated December 4, 2018, noted that the Labor Code does not oblige employers to check the authenticity of documents that a foreign citizen presented when hiring.
Because in this case, liability threatens, first of all, the employee himself. For falsifying documents, he can be fined under Article 327 of the Criminal Code.
However, an organization may be held administratively liable for registering a foreigner in violation of the requirements of migration legislation if, during an inspection, an employee is found to have a fake work permit.
Previously on the topic:
An error in the notification of the admission of a foreigner will be costly
Nuances of an employment contract with a foreign worker - Rostrud
When will a company be fined for foreign workers?
Options for checking the validity of a patent
You can obtain reliable information about the validity period of a migration document in the following ways:
- go to the website of the Ministry of Internal Affairs;
- go to the web portal of the Federal Migration Service;
- come to the FMS office.
Visual inspection
In order not to wait a week, you can first verify the authenticity of the issued permit. How to check a patent visually? You need to check the sample available on the portal for the presence of details and protective elements:
- the document must have a hologram, watermarks, and an individual barcode;
- the banknote detector will highlight green lines and the inscription “UFMS of Russia” with ultraviolet light;
- the first two digits of the document number must correspond to the year of issue (for example, a patent issued in 2021 will have the number 18000001);
- colors, prints and fonts must be clear, blurred contours are a sign of a fake.
Both Russian entrepreneurs and foreign citizens should remember that migration services do not cooperate with intermediaries. Advertisements offering assistance in obtaining a permit without the presence of the migrant are scams.
Details for checking the validity of a migration patent on the FMS website
In order to check the validity of a patent, you will need the following data from a foreign worker:
Using ultraviolet
Using the latest technical capabilities, fraudsters can easily create false documents. Therefore, visual inspection alone is not enough to determine authenticity. It is recommended to additionally use a device that provides viewing through streams of ultraviolet waves.
When exposed to ultraviolet rays, green marks appear that are invisible to the naked eye. On the front side there are stripes, and on the back, at the bottom, there is the abbreviation UFMS.
Important! On some counterfeits, the listed security marks may also be present, but they look vague, with not very pronounced shades.
Checking the validity of a patent by requesting the Main Department of Migration Affairs of the Ministry of Internal Affairs
Most employers prefer to personally contact the Main Department of Migration Affairs of the Ministry of Internal Affairs and make a request. In this case, they may require the provision of additional documents - for example, a power of attorney from a representative of the organization in which it is planned to hire a foreigner.
Those who are interested in where and how to check a patent for work in Moscow and the Moscow region should contact the multifunctional migration center online:
- Go to the Moscow MMC website mc.mos.ru>;
- Select the “Check Patent” service;
- In the appropriate fields, enter the series and number of the patent, the series and number of the foreigner’s passport, as well as his citizenship.
After a few seconds, the system will respond to the request.
How to check your work permit?
If you are hiring a foreign citizen, then you are probably asking the question “How to check the authenticity of his work permit?” This is exactly what we will talk about today in our video.
How can a foreigner legally get a job in Russia if he is in the Russian Federation on a visa? First of all, a foreign citizen must obtain a work permit. According to Russian legislation, such permission is provided by the Ministry of Internal Affairs authority authorized in the field of migration.
You can find out whether a work permit has expired in public information systems in the manner determined by the federal executive body in the field of migration. According to paragraph 9 of Article 18-115 of the Federal Law “On the Legal Status of Foreign Citizens”, information in the system must appear no later than three working days from the date of cancellation of the decision to work or patent or their expiration.
Where can I check my work permit?
You can check the validity of a work permit and patent on the official website of the Main Directorate for Migration Issues of the Ministry of Internal Affairs of Russia. You can do this by following the link.
To check the authenticity of a work permit, you will need the following details: the number and series of the document and the form on which it was issued, the type of activity and the foreign citizen’s passport number. All this information is indicated on the work permit itself.
To check the data, use the special form. In the “service type” window, select Patent or Work Permit. Then fill out the document series, enter its number, as well as the series of the document form. Next, enter the number of the document form, fill out the column about the type of activity of the foreigner and enter his passport number.
The information on the official website of the Ministry of Internal Affairs may not have time to be updated, so do not make hasty conclusions. The absence of information in the database does not always indicate the lack of authenticity of the document.
If you have not found the document after a while, we advise you to contact the territorial division of the Ministry of Internal Affairs. In your written request, indicate all the document details and passport details of the foreign person, as well as a request to inform you whether the work permit is genuine or not.
Lawyers will be able to competently and professionally assist in obtaining a work permit for a foreigner in Russia. Fill out the form and we will promptly advise you on this issue:
