What to do if the employer has submitted documents for the HQS, and the foreign citizen has not entered the Russian Federation

The article was prepared by Olga Makarova, lawyer of Confidence Group

Hiring of foreign citizens in the Russian Federation involves a certain set of complex actions and stages, which, in turn, have a lot of nuances. Often, not all employers know about them, which can lead to very serious consequences.

In this article, we would like to explain how to avoid mistakes when hiring foreign labor.

Let's look at the situation when an employer submitted documents for a work permit for the High Quality Specialist (HQS), made the notification of the conclusion of an employment contract the Ministry of internal Affairs, and a foreign citizen did not enter the territory of the Russian Federation.

In order to apply for a work permit for a highly qualified specialist, the employer must submit to the territorial division of the Ministry of internal Affairs an already concluded employment contract, which takes force after obtaining a work permit. Since the contract with a foreign employee is concluded, the employer must submit a notification to the territorial division of the Ministry of internal Affairs within a period not exceeding 3 working days following the date of conclusion of such a contract (paragraph 8 of article 13 of Federal law No. 115 from 25.07.2002).

The date of conclusion of the contract is the date of its direct signing by the parties - thus, the employer has no more than 3 working days from the date of signing the contract to submit a notification of the conclusion of the employment contract.

However, there are cases when, for some reason, after signing an employment contract, a foreign citizen refuses to work, as well as does not enter the territory of the Russian Federation.

In accordance with the law, the employer has not possibility to terminate a labor or civil contract that has been concluded but has not entered into force. Based on the Russian labor code, It can only annul a labor contract and the law does not provide for such a procedure as notification of the cancellation of an labor contract. There is only a procedure for notifying the conclusion/termination of an employment or civil contract with a foreign citizen.

In this case, the employer has a question of what to do with previously submitted documents, what additional actions need to be taken, and what migration risks may occur in such a situation.

The Ministry of internal Affairs cannot clearly answer the question of what an employer should do. Different divisions of the Ministry of internal Affairs give different recommendations for solving the situation.

Migration authority of The Ministry of internal Affairs in Moscow region is categorical in providing an employer notification of termination of the employment contract, while they can't tell what date we need to specify in the relevant notification.

Employees of Migration authority of The Ministry of internal Affairs in Moscow are in solidarity in the necessity to serve a notification of termination of the labor contract, but with "open dates". At the same time, it is recommended to submit cover letters in free form for entering information into the database of the Ministry of internal Affairs of the Russian Federation.

It is obvious that the Migration authority of The Ministry of internal Affairs in Russian Federation has no reason to oblige the employer to apply the notification of termination of the labor contract, to write newsletters or in any other way to inform about the fact of no visits or absence of a foreign citizen, with whom he had signed an labor contract and filed a notice of its conclusion.

However, in order to avoid problems with attracting foreign workers in the future, we still recommend informing the Ministry of internal Affairs of such facts by sending a letter in free form describing the situation.

If the employer decides not to take any action, there is no liability in this situation, but there are a number of difficulties that the employer may face in the future, given that the database of the Ministry of internal Affairs will "hang" information about the concluded labor contract with this foreign employee.

In particular, it may be difficult to attract a foreign employee to a similar position. So, for example, if the employer has applied previously for registration of HQS work permits for the position of General Director of the company, having concluded the employment contract and filed a notification of conclusion of the labor contract, and the General director did not drive in Russia, the company force out to apply for the issue of a work permit for a new General Director. In this case, the database of the Ministry of internal Affairs will contain 2 signed labor contracts for the same position, which, in turn, will definitely raise questions from the Ministry of internal Affairs.

In addition, at the moment, the main reason for refusal to issue permits to attract foreign labor from the Ministry of internal Affairs is the discrepancy between the declared number of foreign employees of the organization specified when applying for a permit to attract foreign labor and the information contained in the database of the Ministry of internal Affairs. The employer is sure that the foreign citizen who got into the described above situation is not an employee of the organization, but the database of the Ministry of internal Affairs will add it to the total number of foreign citizens working in the organization - thus, the employer's data and the data of the Ministry of internal Affairs will be differ.

If such situations occur, we recommend that you contact professional legal practitioners for advice in order to minimize all possible risks.