Notice of salary payment. List of professions for highly qualified specialists

The procedure for employment of foreign employees is significantly different from the employment of citizens of the Russian Federation. The conditions of employment in the Russian Federation for such specialists imply a differentiated payment of wages.

The main document regulating legal relations with foreigners staying on the territory of the Russian Federation is Federal Law No. 115-FZ of July 25, 2002 “On the Legal Status of Foreign Citizens in the Russian Federation” (hereinafter referred to as Law No. 115-FZ).

Law No. 115-FZ defines the legal status of foreign citizens in the Russian Federation, and also regulates relations between foreign citizens, on the one hand, and state authorities, local governments, officials, on the other hand, arising in connection with the implementation by foreign citizens on the territory RF labor, entrepreneurial and other activities.

HQS salary differentiation

The HQS is paid wages in the amount (clause 3, clause 1, article 13.2 of Law No. 115-FZ):

1) at least 83,500 rubles per one calendar month - for HQS who are researchers or teachers, if they are invited to engage in research or teaching activities, as well as for HQS involved in labor activities by residents of industrial production, tourist and recreational, port special economic zones (with the exception of individual entrepreneurs):

1.1) not less than 58,500 rubles per one calendar month - for foreign citizens involved in labor activities by residents of the technology-innovative special economic zone (with the exception of individual entrepreneurs);

1.2) not less than 1 million rubles per one year (365 calendar days) - for HQS who are medical, pedagogical or scientific workers, if they are invited to engage in relevant activities on the territory of the international medical cluster;

2) without taking into account the requirement for the amount of wages - for foreign citizens participating in the implementation of the Skolkovo project:

2.1) not less than 83,500 rubles per one calendar month - for foreign citizens employed by legal entities operating in the territories of the Republic of Crimea and the federal city of Sevastopol;

3) not less than 167,000 rubles per calendar month - for other foreign citizens.

Employers are allowed to conclude contracts with such HQS on preferential terms:

without obtaining permission to attract and use foreign workers (clause 2, clause 4.5, article 13 of Law No. 115-FZ);
compliance with quotas for issuing invitations to enter the Russian Federation for labor activities and quotas for issuing work permits to foreigners (clause 2, article 13.2 of Law No. 115-FZ);
restrictions that relate to the allowable share of foreign workers used in certain types of economic activity.

The status of an HQS depends on the amount of salary he receives.

The employer independently determines the level of qualification, and with it the amount of wages, and, if necessary, bears the corresponding risks. To assess the competence and skill level of the invited HQS, the employer uses documents and information confirming that this specialist has professional knowledge and skills.

The employer did not pay (or paid part of) the salary of the HQS

Since the majority of visiting foreign specialists are employees from the category of “other foreign citizens”, let us consider the consequences of non-payment of wages (at least 2 million rubles per year) to such specialists.

For “other foreign citizens” HQS, the salary must be at least 167,000 rubles per month, for a year it turns out - at least 2,004,000 rubles. The amount of income is set in the employment contract with the HQS, so it can be significantly higher.

The real income of an employee may be lower due to being on unpaid leave (for example, unpaid leave at the initiative of the employee), on sick leave, etc.

In practice, it happens that the employer does not pay the salary of the HQS. At the same time, various pretexts are found, up to the annulment of an employment contract with a foreigner.

In judicial practice, there are cases when an employer who has wage arrears to a HQS canceled an employment contract with him.

So, in one of the cases, the employer canceled the employment contract almost a year later due to the fact that the employee allegedly did not start work. Documents were presented in court, witnesses were interviewed, and a notification by the employer of the FMS of Russia about a working foreign specialist was included in the case materials. This circumstance indicates that the employee has started work.

According to the court, if the employer illegally terminated the employment relationship with the employee, but did not provide data on wages, then the employer should be charged wages in accordance with the calculation of the employee, as well as compensation for the delay in wages. In addition, the court concluded that it was necessary to recover compensation from the employer for moral damage, guided by the requirements of Article 237, Article 394 of the Labor Code of the Russian Federation (Decision of the Khimki Court dated February 18, 2016 in case No. 2-1112/16).

In the Appellate Ruling of the Voronezh Regional Court dated 04/06/2016 No. 33-2113/2016, the court also ordered the negligent employer to pay off debts to the HQS.

The employer should not forget about criminal liability for non-payment of wages. An employer may be held criminally liable for partial non-payment of wages for more than three months or complete non-payment of wages for more than two months (Article 145.1 of the Criminal Code of the Russian Federation). If the non-payment of wages entailed serious consequences for the employee, then on the basis of Part 3 of Article 145.1 of the Criminal Code of the Russian Federation, the employer may, among other things, be imprisoned from two to five years.

With regard to the HQS itself, questions arise (in addition to salary debts) regarding the loss of its HQS status if the actual income turns out to be less than 2 million rubles a year.

In this case, the loss of the status of the HQS does not occur and the possibility of applying the personal income tax rate of 13% remains (Letter of the Ministry of Finance of the Russian Federation of 04.05.2012 No. 03-04-06 / 6-130).

To develop the company, business owners often resort to attracting experience from abroad, in particular, they hire those who are called highly qualified foreign specialists. In 2017, organizations are looking for innovative methods to solve the problems they face, so the issue of attracting qualified employees is quite acute.

It should be noted that foreign citizens, as highly qualified specialists, can only be recruited by organizations. According to the law, individual entrepreneurs do not have such an opportunity. However, the involvement of HQS is possible: no one forbids entrepreneurs from hiring such specialists in a general manner (for example, as temporary residents).

But who can be considered a highly qualified specialist? HQS employees are foreign workers who have work experience, skills, outstanding achievements in a certain field of activity, and their involvement in the project implies that the work will be paid.

Salary for HQS

It should be noted that the involvement of specialists imposes certain obligations on the employer. For example, certain specialists have their own minimum wage threshold. List of highly qualified foreign specialists whose salary should not be less than 83,500 rubles per month:

Researchers, teachers who work in educational institutions of higher education, research centers, state academies of sciences on educational programs accredited by the state;
Specialists who were involved in work by residents of industrial-production, tourist-recreational, port special economic zones;
Specialists who were attracted by companies that are engaged in scientific activities, innovative developments, tests and experiments.
Specialists who were involved in labor activities by organizations operating in the territories of the Republic of Crimea and the city of Sevastopol.

The minimum salary of a highly qualified foreign specialist of 58,500 rubles is set for citizens who were recruited by residents of the technology-innovative special economic zone.

Highly qualified specialists - foreigners who do not belong to any of the groups listed above can receive a salary of at least 167,000 rubles per calendar month.

To establish the actual salary for the attracted specialist, the employer independently analyzes the skills and knowledge of the employee. It is worth noting that certain qualification requirements have been established for managerial positions in the field of trade, which the attracted specialist must meet. Thus, a foreign general director must have a higher professional education and at least 5 years of experience in senior positions in trade.

Employment of a foreign highly qualified specialist

Engaging a HQS to work as a highly qualified specialist, obtaining a work permit for him and, if necessary, an invitation to enter Russia requires certain actions from the employer. It is necessary to send a package of documents to the Main Directorate for Migration of the Ministry of Internal Affairs of Russia: a photo of the employee, an application for his involvement, an employment contract, an obligation to pay the costs associated with the possible deportation of the employee.

Each highly qualified foreign specialist is issued a work permit in the form approved for such specialists: a separate form for workers who arrived on a visa basis, a separate one for those who arrived on a visa-free basis. Such a permit can be obtained by a specialist from the Ministry of Internal Affairs of Russia (Department for Migration), as well as from the representative office of the Ministry of Internal Affairs of Russia abroad (if any).

When registering an employee, the employer must require from the specialist documents for concluding an employment contract, a migration card or a work visa, as well as a medical insurance policy that is valid in Russia, a work permit. It is also possible to present a permit after the conclusion of an employment contract.

An employment contract is drawn up in the usual manner, indicating the specifics of the specialist's work activity. You can conclude a fixed-term employment contract or a contract for an indefinite period - it all depends on the plans of the employer.

Then an order is issued for hiring, a Russian-style work book is issued (if it is not available), an employee's personal card. Not later than three days from the day when a work contract was concluded with a foreign specialist, the employer must notify the territorial division of the Ministry of Internal Affairs of Russia about this. This must be done using the notification form on the conclusion of an employment contract with a foreign citizen. When terminating the employment contract, you will also need to report this to the Ministry of Internal Affairs of Russia.

The notification form is filled in Russian, legibly by hand or using a computer. Be careful when filling out: words must be written in full, without shortening, avoiding corrections.

In accordance with paragraph 6 of Article 13.2 of the Federal Law of July 25, 2002 No. 115-FZ “On the Legal Status of Foreign Citizens in the Russian Federation”, to issue a work permit to a highly qualified specialist and to extend, for this purpose, the period of his temporary stay in the Russian Federation, and also, in order to issue him an invitation to enter the Russian Federation for the purpose of carrying out labor activities, the employer or customer of works or services shall submit the following documents to the federal executive body in the field of migration or its authorized territorial body:

a petition to attract a highly qualified specialist;
an employment contract or a civil law contract for the performance of work or the provision of services with an engaged highly qualified specialist, the entry into force of which is conditional on the receipt by this highly qualified specialist of a work permit;
a written obligation to reimburse the expenses of the Russian Federation related to the possible administrative expulsion from the Russian Federation or the deportation of a highly qualified specialist attracted by him.

What documents are submitted for the renewal of work permits for foreign citizens - highly qualified specialists?

In accordance with paragraph 17 of Article 13.2 of the Federal Law of July 25, 2002 No. 115-FZ “On the Legal Status of Foreign Citizens in the Russian Federation”, in order to extend the validity of a work permit for a highly qualified specialist, the employer or customer of works or services no later than thirty days before the expiration of such permit, submit the following documents to the federal executive body in the field of migration or its territorial body:

application of the employer or the customer of works (services) on the extension of the validity of a work permit for a highly qualified specialist;
an employment contract or a civil law contract for the performance of work or (rendering of services) with a highly qualified specialist, concluded and executed in accordance with the legislation of the Russian Federation;
a copy of the contract (policy) of medical insurance or the contract concluded by the employer or the customer of works (services) with a medical organization for receiving primary health care and specialized medical care by a highly qualified specialist and members of his family permanently residing in the Russian Federation who are foreigners citizens;
information on the amount of wages (remuneration) paid to a highly qualified specialist by the employer or the customer of works (services);

documents confirming the registration of a highly qualified specialist at the place of stay;

The amount of salary is the main criterion for the status of a highly qualified specialist, which must be at least 2 million rubles before tax.
According to part one of Article 129 of the Labor Code of the Russian Federation, wages (remuneration of an employee) are remuneration for work depending on the qualifications of the employee, the complexity, quantity, quality and conditions of the work performed, as well as compensation payments (surcharges and allowances of a compensatory nature, in including for work in conditions that deviate from normal, work in special climatic conditions and in territories exposed to radioactive contamination, and other compensation payments) and incentive payments (additional payments and bonuses of an incentive nature, bonuses and other incentive payments). At the same time, bonus payments are also included in the salary.

In accordance with the new rules, the employer has broad powers in terms of self-assessment of the qualifications of a specialist of interest to him. Accordingly, now the employer bears the risks associated with determining the level of qualification. There are also risks that the employer bears in connection with non-compliance with obligations to a highly qualified specialist in relation to the provisions of the employment contract, i.e. under the obligation to pay fixed wages and provide health insurance

Should the date of the proposed entry into Russia in the application for attracting a highly qualified specialist correspond to the date of taking up the position in accordance with the employment contract? If the date specified in the employment contract coincides with the actual date when a highly qualified specialist must begin his duties, and he needs to enter Russia earlier than this date to resolve personal issues, how can you get an invitation to enter the Russian Federation before the date work permits

Guarantees of the host party regarding the material, medical and housing support of foreign citizens in accordance with Decree of the Government of the Russian Federation No. 167 of March 24, 2003 must be submitted to the FMS of Russia as a separate document

The current legislation allows a foreign specialist to stay on a business trip on the territory of a constituent entity of the Russian Federation, which is not covered by the work permit, for no more than 10 days during the period of validity of the work permit. For specialists who have a condition in the employment contract on the traveling nature of the work, it is allowed to extend this period up to 60 days. This rule is currently being reviewed with a view to extending the allowable travel period to 30 days. However, employers are advised to apply for a work permit for several regions at once in order to avoid possible complications associated with migration requirements.
Clause 12 of Article 13.2 of the Federal Law of July 25, 2002 No. 115-FZ “On the Legal Status of Foreign Citizens in the Russian Federation” (hereinafter referred to as the Federal Law) also provides that if, in accordance with an employment contract or a civil law contract for the performance of works (provision of services) it is assumed that a highly qualified specialist will carry out labor activities in the territories of two or more constituent entities of the Russian Federation, this highly qualified specialist is issued a work permit valid in the territories of these constituent entities of the Russian Federation.

Will it be possible to issue a work permit for 1, 2 or 3 years for a foreign employee who is already in Russia on a work visa? Will it be possible to extend a valid work visa under a new work permit for a period of 1, 2 or 3 years, or will it be necessary to issue a new invitation for a work visa with the obligatory departure of a citizen from the country

in cases of termination of employment contracts (civil law contracts for the performance of work, the provision of services) with a highly qualified specialist;
granting unpaid leave for more than one calendar month during the year;
on the fulfillment of obligations to pay wages to a highly qualified specialist (clause 13, article 13.2 of the Federal Law of July 25, 2002 No. 115-FZ “On the Legal Status of Foreign Citizens in the Russian Federation” (hereinafter referred to as the Federal Law) provides for a quarterly notification, however it is not established until what date following the reporting date the employer must notify about payments to a highly qualified specialist).

Consequently, when a foreign worker moves from one legal entity to another, there is no need to leave the country to obtain a visa for a highly qualified specialist to apply for a job as a highly qualified specialist

It is not possible to provide a specific date for the entry into force of the Administrative Regulations for the provision of the Federal Migration Service of Russia with the state service for issuing work permits, invitations and visas for highly qualified specialists, since the revised regulations are currently undergoing the approval procedure

Is the procedure for attracting a highly qualified specialist to representative offices of foreign legal entities applicable?

The regime for attracting a highly qualified specialist does not apply to representative offices of foreign legal entities, including representative offices of airlines, which are exempted from the need to issue permits for attracting and using foreign labor and work permits for foreign specialists within the limits of the number agreed during the accreditation of the representative office by the authorized body of the Russian Federation, on the basis of the principle of reciprocity in accordance with the international treaties of the Russian Federation, provided that such treaties provide for the said exemption.

A highly qualified specialist is a foreign citizen who, among other things, has a salary (remuneration) in the amount of two or more million rubles a year. Are bonus payments included in the remuneration?

The amount of salary is the main criterion for the status of a highly qualified specialist, which must be at least 2 million rubles before tax.

According to part one of Article 129 of the Labor Code of the Russian Federation, wages (remuneration of an employee) are remuneration for work depending on the qualifications of the employee, the complexity, quantity, quality and conditions of the work performed, as well as compensation payments (surcharges and allowances of a compensatory nature, in including for work in conditions that deviate from normal, work in special climatic conditions and in territories exposed to radioactive contamination, and other compensation payments) and incentive payments (additional payments and bonuses of an incentive nature, bonuses and other incentive payments). At the same time, bonus payments are also included in the salary.

Is it possible not to indicate the salary in the text of the contract (put it in an attachment), and when submitting documents to the Federal Migration Service to attract a foreign citizen as a highly qualified specialist, provide the main part of the contract (without an attachment) and a letter of guarantee stating that the salary of this of a citizen under this agreement (full name and details of the agreement are indicated) is guaranteed in the amount of at least 170,000 rubles per month?

Wages must be specified in the text of an employment contract or a civil law contract for the performance of work (rendering services), and not in a letter of guarantee or any other separate document. At the same time, if the annex or additional Agreement is an integral part of the contract, then the salary may be indicated there.

The Government of the Russian Federation has the right to reduce the specified wage requirements. On the basis of what criteria and supporting documents is it possible to reduce the wage bar?

In accordance with paragraph 1 of Article 13.2 of Federal Law No. 115-FZ of July 25, 2002 “On the Legal Status of Foreign Citizens in the Russian Federation” (hereinafter referred to as the Federal Law), a foreign citizen who has work experience, skills or achievements in a specific field of activity, if the conditions for engaging him in labor activity in the Russian Federation require him to receive a salary (remuneration) in the amount of two or more million rubles for a period not exceeding one year. Based on the priorities of the development of the Russian economy, the Government of the Russian Federation has the right to reduce the specified requirements for the amount of wages (remuneration) of such foreign citizens in the amount of more than two million rubles for a period not exceeding one year.
In this regard, the legislation of the Russian Federation enshrined the powers of the Government of the Russian Federation to reduce the requirements for wages by issuing a relevant act of the Government of the Russian Federation. Significant changes in the economy can serve as criteria for the decline. The requirements for the level of wages set out in paragraph 1 of Art. 13/2 of the Federal Law of July 25, 2002 No. 115-FZ "On the Legal Status of Foreign Citizens in the Russian Federation" are determined by the current economic situation. The requirements can only be reviewed and subsequently amended in the law in case of significant changes in the economy, or in relation to certain categories of workers.

The employer independently assesses the competence and skill level of foreign citizens and bears the corresponding risks. The law contains a list of documents and information required for such an assessment. How should they be drawn up and certified, is it necessary to use the entire list or selectively? What risks does the employer bear, and what is the degree of responsibility of the employer?

Do I need a diploma of higher education to obtain a work permit for a highly qualified specialist? If there is no diploma, what document should be submitted?

Higher education is not a prerequisite for establishing the status of a highly qualified specialist. A diploma of higher education does not always clearly indicate the high qualification of a specialist and is only one of the possible documents. Documents and information provided to the Federal Migration Service must be verifiable and must contain confirmation that, in the opinion of the employer, this specialist deserves to receive a salary of 2 million rubles a year.

Should the position of a highly qualified specialist indicated in the employment contract and application correspond to the classifier of positions and professions?

Positions of highly qualified specialists do not have to comply with the All-Russian Classification of Positions and Professions, which was adopted in 1993 and currently does not quite meet the realities and requirements of the current economic situation and business requirements. In the near future, it is planned to begin work on improving the classifier.

In many European companies, the terms "Partner" and "Managing Partner" are widely used for middle and senior management positions. The Federal Migration Service of Russia requires them to be changed to equivalents that are traditional for Russian business practice. At the same time, these positions are mentioned in all internal documents of companies, and their replacement is associated with great difficulties for companies in the field of document management, etc. How can this problem be solved?

In the application and the employment contract submitted to the Federal Migration Service of Russia when applying for a work permit, it is recommended that next to the position "Partner" / "Managing Partner" in brackets, decipher this position indicating the function and area of activity of the specialist (for example, head of department, etc. .).

What is the form of a written offer to enter the Russian Federation for negotiations?

The form of this document is currently under development. The corresponding normative legal act will soon be adopted and published.

The procedure for issuing and issuing a work permit to a highly qualified specialist, extending its validity, the form of the said permit, etc. are established by the federal executive body in the field of migration - the procedure has not yet been agreed upon, there are no samples of all documents.

This statement is incorrect. In short, the procedure for attracting a HQS consists in submitting an application with the attachment of the documents specified in paragraph 6 of Art. 13.2 of the Federal Law, as well as receipts for payment of state duty in the amount of 2000 rubles and 2 color photographs 3.5 x 4.5 cm in size on a white background. Documents are submitted in Moscow to the Center for Citizens' Appeals for Passport and Visa Issues of the Federal Migration Service of Russia at the address: st. Upper Radishchevskaya, 4, bldg. 1B.

Is it possible to simultaneously obtain a work permit and an invitation for a visa for a highly qualified specialist?

The relevant documents provided for by subparagraphs 1 - 4 of paragraph 6 of Article 13.2 of the Federal Law of July 25, 2002 No. 115-FZ “On the Legal Status of Foreign Citizens in the Russian Federation” (hereinafter referred to as the Federal Law) are submitted by the employer to the Federal Migration Service of Russia for issuance of a permit to a highly qualified specialist to work, as well as to issue him an invitation to enter the Russian Federation in order to carry out labor activities.

Is the personal presence of a highly qualified specialist required when obtaining a work permit?

According to paragraph 15 of Article 13.2 of the Federal Law of July 25, 2002 No. 115-FZ “On the Legal Status of Foreign Citizens in the Russian Federation” (hereinafter referred to as the Federal Law), a work permit is issued to a highly qualified specialist upon presentation of an identity document recognized by the Russian Federation in this capacity. Based on this norm, it follows that a work permit for a highly qualified specialist is issued personally.

What is the procedure and terms for issuing invitations for family members?

Documents for visas for a highly qualified specialist and his family members are submitted simultaneously, therefore, the terms for issuing invitations for family members correspond to the deadlines established for issuing invitations for highly qualified specialists.

How to register foreign citizens who come with a highly qualified specialist as his domestic help?

A citizen of a foreign state, located on the territory of Russia, can invite servants only on a visitor visa and on condition that he permanently resides in Russia (i.e. has a residence permit). He can also invite citizens of countries that have visa-free entry to the territory of the Russian Federation. There is no special procedure for inviting domestic workers for foreign citizens. A servant cannot be equated in status with family members and cannot enter the Russian Federation under the same procedure.

Why is it necessary to fill in the column in the application, which indicates the organizations providing employment and recruitment services?

Where is a work permit issued for a highly qualified specialist if it is issued for work in several constituent entities of the Russian Federation?

Currently, work permits for a highly qualified specialist are issued by the FMS of Russia in Moscow, while a work permit for a highly qualified specialist can be obtained from the territorial bodies of the FMS of Russia. Since most foreign and large companies have offices in Moscow, the centralized submission of documents is carried out through the aforementioned center on the street. Upper Radishchevskaya. Work permits for highly qualified specialists, valid in several subjects, are issued only in Moscow, at the office on the street. Upper Radishchevskaya.

Is it necessary to conclude a new employment contract when applying for a work permit for a highly qualified specialist in accordance with the new procedure?

The employer is not obliged to conclude a new contract with a foreign employee in order to obtain a work permit if the current contract already meets the requirements for the level of salary, provision of medical insurance, etc. Missing provisions can be included by concluding an additional agreement to the employment contract.

Can an employment contract with a foreign citizen involved as a highly qualified specialist be concluded for a period of more than 3 years?

Although the work permit is limited to three years, an employment contract can be concluded for more than three years, or have an unlimited duration.

Is the requirement of employees of the Federal Migration Service at the Document Reception Center to also give the original contract with a foreign citizen when submitting documents justified? If not, is it possible to inform directly those employees who accept documents about the possibility of presenting the original and submitting only a copy?

Subparagraph 2 of paragraph 6 of Article 13.2 of the Federal Law of July 25, 2002 No. 115-FZ “On the Legal Status of Foreign Citizens in the Russian Federation” (hereinafter referred to as the Federal Law) provides that one of the documents submitted by the employer for issuing a work permit to a highly qualified specialist , is an employment contract with a highly qualified specialist involved. When submitting documents for a work permit, the original employment contract should not be withdrawn. The representative of the employer must provide the original and a copy of the contract. It is desirable to certify a copy of the contract with the signature and seal of the company's personnel department. After verifying the original and the copy, the original is returned to the representative of the employer.

If the employment contract with a highly qualified specialist was terminated ahead of schedule due to objective reasons (personal circumstances of the employee, completion of the project ahead of schedule, sending a foreigner to the head office, etc.), how should the employer confirm that he has fulfilled his obligations to pay wages in accordance with the established requirements?

In the event of early termination of the contract, the employer must inform the FMS of Russia of the reasons for the termination and provide documents confirming the payment of wages for the period worked.
It should be clarified that in accordance with paragraph 13 of Article 13.2 of the Federal Law of July 25, 2002 No. 115-FZ “On the Legal Status of Foreign Citizens in the Russian Federation” (hereinafter referred to as the Federal Law), employers are required to notify the Federal Migration Service of Russia on a quarterly basis about the fulfillment of obligations under payment of wages (remuneration) to highly qualified specialists, as well as cases of termination of employment contracts with these highly qualified specialists and cases of granting them leave without pay for more than one calendar month during the year.

In this case, it is allowed for the employer to indicate the date of actual entry into the Russian Federation additionally on the reverse side of the application, certifying the mark with the signature of an authorized person and the seal of the organization.

Decree of the Government of the Russian Federation No. 167 dated March 24, 2003 "On the procedure for providing guarantees for material, medical and housing support for foreign citizens and stateless persons for the period of their stay in the Russian Federation" does not spell out whether these guarantees should be indicated directly in the employment contract employee.

Guarantees of the host country regarding material, medical and housing support for foreign citizens in accordance with Decree of the Government of the Russian Federation No. 167 of March 24, 2003 must be submitted to the FMS of Russia as a separate document.

Are there still restrictions on the terms of business trips to the regions of the Russian Federation that are not specified in the work permit for highly qualified specialists?

Clause 12 of Article 13.2 of the Federal Law of July 25, 2002 No. 115-FZ “On the Legal Status of Foreign Citizens in the Russian Federation” (hereinafter referred to as the Federal Law) also provides that if, in accordance with an employment contract or a civil law contract for the performance of works (provision of services) it is assumed that a highly qualified specialist will carry out labor activities in the territories of two or more constituent entities of the Russian Federation, this highly qualified specialist is issued a work permit valid in the territories of these constituent entities of the Russian Federation.

When canceling Decrees of the Government of the Russian Federation No. 183 “On approval of the rules for the employer or customer of works (services) to submit notifications of the involvement and use of foreign citizens and (or) stateless persons who arrived in the Russian Federation in a manner that does not require a visa , and having a work permit "and No. 681" On the procedure for issuing permits for foreign citizens to carry out temporary labor activities in the Russian Federation "what should the employer be guided by?

In connection with the cancellation of Decree of the Government of the Russian Federation No. 183 “On approval of the rules for the employer or customer of works (services) to submit notifications of the involvement and use of foreign citizens and (or) stateless persons who arrived in the Russian Federation in a manner that does not require obtaining a visa and having a work permit "the form, procedure and terms of notifications on the conclusion and termination of labor or civil law contracts with foreign citizens, granting them unpaid leave, as well as on the fulfillment by employers of obligations to pay wages, were approved by the Order of the Federal Migration Service of Russia dated June 28, 2010 No. 147 "On the forms and procedure for notifying the Federal Migration Service about the implementation of labor activities by foreign citizens on the territory of the Russian Federation."

Has a form for quarterly reporting on accrued personal income tax been developed?

The form for quarterly reporting on the amounts of personal income tax paid in relation to HQS is currently being developed. All questions regarding tax reporting should be addressed to the tax authorities.

Are there any plans to change the rules of migration registration of foreign citizens, in particular, in relation to a highly qualified specialist?

Currently, work is underway to study the possibilities of simplifying the rules of migration registration.
The federal law provides for preferences regarding the removal of foreign citizens from migration registration when they change their place of residence within the territory of the Russian Federation. Currently, a foreign citizen who is registered at the place of stay, upon departure to another place of stay within the territory of the Russian Federation, does not return the detachable part of the notice of arrival to the receiving party.
Upon the arrival of a foreign citizen at a new place of stay within the territory of the Russian Federation, the detachable part of the notification of arrival is provided to them by the receiving party at the new place of stay for filling out the Notification form and subsequent submission (sending) to the territorial body of the FMS of Russia at the new place of stay simultaneously with other documents, necessary for the registration of a foreign citizen for migration registration.
When applying independently to the territorial body of the FMS of Russia, located in the new place of residence, a foreign citizen, along with a completed new notice of arrival and other necessary documents, submits the tear-off part of the notice of arrival that he has.
After a foreign citizen is registered at a new place of residence, the relevant information is sent to the territorial body of the FMS of Russia at the former place of residence in order to remove him from the migration register.

Are the requirements of the employees of the territorial divisions of the Federal Migration Service of Russia to a foreign citizen to send a tear-off part of the notification of arrival by fax when moving from one subject of the Russian Federation to another justified?

Such claims are unfounded.

For what violations specific to the HQS recruitment regime can an employer be punished by a ban on recruiting a highly qualified specialist for a period of 2 years?

Clause 26 of Article 13.2 of the Federal Law of July 25, 2002 No. 115-FZ “On the Legal Status of Foreign Citizens in the Russian Federation” (hereinafter referred to as the Federal Law) provides that an employer who, through his own fault, has not fulfilled his obligations to a highly qualified specialist, established by this Federal Law, as well as the mandatory terms of an employment contract concluded with a highly qualified specialist, are entitled to re-engage highly qualified specialists not earlier than two years from the date when the relevant circumstances became known to the federal executive body in the field of migration.
For the purpose of establishing such punishment, the migration authorities consider two main violations: the payment of wages in the amount of less than the established one, the failure to provide health insurance for a highly qualified specialist and his family members.
In addition, subparagraph 2 of paragraph 5 of this article establishes a ban on the involvement of foreign highly qualified specialists by employers who, within two years prior to the date of filing an application for the involvement of highly qualified specialists, were subject to administrative punishment for illegally recruiting foreign citizens or stateless persons to work in the Russian Federation, as well as having, at the time of filing such a petition, unfulfilled decisions on the imposition of an administrative penalty for the commission of these administrative offenses.

Can a foreign citizen who has received a residence permit change employer or get a second job at will?

The federal law does not provide for the cancellation of a residence permit in the event of early termination of an employment contract and the expiration of the deadlines established by Article 13.2 of the Federal Law of July 25, 2002 No. 115-FZ “On the Legal Status of Foreign Citizens in the Russian Federation” (hereinafter referred to as the Federal Law), is not provided.
In addition, paragraph 11 of the above article 13.2 establishes that within 30 working days from the date of early termination of the employment contract, a highly qualified specialist has the right to search for another employer, and in the event that a foreign citizen has not concluded a new employment contract within this period, he is obliged leave the Russian Federation within 30 working days. Thus, the residence permit is recognized as valid within 60 working days.
A residence permit is issued to a foreign citizen for the duration of the employment contract, but not more than the validity of the foreign citizen's passport. If the employment relationship is prematurely terminated, then the residence permit is considered valid for 30 working days to find another employer, and after this period, in the absence of a new employment contract, the residence permit remains valid for another 30 working days for the foreign citizen to leave the Russian Federation (Clause 11 of Article 13.2).
If the company is considering the possibility of concluding an employment contract with a foreign citizen who has a residence permit, it must check the validity of the documents provided by the foreign citizen in order to avoid violating migration laws.

What should be indicated in the “position” column in the documents for a highly qualified specialist when applying for a work permit on the basis of a civil law contract? What position, in this case, will be indicated in the work permit for a highly qualified specialist?

It is advisable to indicate the equivalent of the position corresponding to the functions performed, in accordance with the contract.

In cases specified by law, a foreign worker who is in the Russian Federation on a work visa can be issued a work permit for a period of more than 1 year. A valid work visa can be extended for a period of more than 1 year without the foreign citizen leaving the Russian Federation.

A work permit for a highly qualified specialist can be issued for up to 3 years. At the same time, the administrative regulations of the Russian Foreign Ministry and the Russian Federal Migration Service provide for the possibility of issuing work visas only for a period of 3 months or 1 year. Will changes be made to the administrative regulations to allow highly qualified specialists to obtain work visas for the duration of the work permit?

The Administrative Regulations for the provision of public services by the Federal Migration Service of Russia are currently being amended.

According to paragraph 27 of Art. 13.2 of the Federal Law of July 25, 2002 No. 115-FZ “On the Legal Status of Foreign Citizens in the Russian Federation” (hereinafter referred to as the Federal Law), a residence permit can be issued to a highly qualified specialist for the duration of the employment contract. According to the Administrative Regulations of the FMS of Russia, the decision to issue a residence permit is made within 6 months. This is too long a consideration period, given that highly qualified specialists need to start working in the Russian Federation as soon as possible. Is it planned to shorten the period for making a decision on issuing a residence permit?

The start of work of a highly qualified specialist in the Russian Federation is not connected with obtaining a residence permit. He will be able to start work on the basis of an employment contract and a work permit. At the same time, we inform you that it is planned to reduce the period for consideration of an application for a residence permit for a highly qualified specialist and his family members to 3 months. Appropriate changes are being made to the Administrative Regulations on the provision by the Federal Migration Service of a state service for issuing residence permits to foreign citizens and stateless persons in the Russian Federation.

Should a medical policy of voluntary medical insurance be issued by a Russian insurance company? Will it be enough to have a corporate international insurance policy that a foreign citizen and his family already have, or will it still be necessary (in addition) to conclude an agreement on behalf of the employer with a Russian or foreign insurance company, directly in the Russian Federation and draw up another policy? As a rule, all foreign employees already have corporate international insurance, and in Moscow SOS International provides medical assistance under this insurance.
Is an employer obliged to insure under a voluntary medical insurance contract, in addition to the most highly qualified specialist, members of his family arriving with him? Or is it their personal responsibility to insure family members of a highly qualified specialist from the day they enter the territory of the Russian Federation?

Based on the content of paragraph 14 of Article 13.2 of the Federal Law of July 25, 2002 No. 115-FZ “On the Legal Status of Foreign Citizens in the Russian Federation” (hereinafter referred to as the Federal Law), a highly qualified specialist and members of his family from the date of entry into the Russian Federation must be insured under a contract of compulsory medical insurance.
In accordance with the Regulations on the health insurance of foreign citizens temporarily staying in the Russian Federation, approved by Decree of the Government of the Russian Federation dated December 11, 1998 No. 1488, Russian insurance organizations provide medical insurance for foreign citizens temporarily staying in the Russian Federation on the basis of a license issued by in accordance with the established procedure by the federal executive body for supervision of insurance activities.
The organization and financing of medical care for foreign citizens temporarily staying in the Russian Federation, whose medical insurance is carried out by a foreign insurance organization that has concluded an agreement with a Russian insurance organization that has a license to carry out insurance of this type, or with a service organization that provides organization of medical care, is carried out by a Russian insurance company. organization (service organization) in the amount not less than provided for by the said Decree of the Government of the Russian Federation.

When submitting quarterly information on the payment of wages in the established amount, as well as on granting leave at one's own expense and termination of the employment contract, will it be necessary to provide additional documents (for example, confirming the fact of payment of wages in the established amount)?
We ask you to determine specific deadlines for notifying the FMS in each of the following cases (or clarify by-laws that will clarify the procedure for notification procedures):

In cases of termination of employment contracts (civil law contracts for the performance of work, the provision of services) with a highly qualified specialist;
- granting unpaid leave for more than one calendar month during the year;
- on the fulfillment of obligations to pay wages to a highly qualified specialist (clause 13, article 13.2 of the Federal Law of July 25, 2002 No. 115-FZ “On the Legal Status of Foreign Citizens in the Russian Federation” (hereinafter referred to as the Federal Law) provides for a quarterly notification, however, it is not established by what date following the reporting date the employer must notify the payment to a highly qualified specialist).

The form, procedure and terms of notifications on the conclusion and termination of labor or civil law contracts with foreign citizens, granting them unpaid leave, as well as on the fulfillment by employers of obligations to pay wages are determined by Order of the FMS of Russia dated June 28, 2010 No. 147 "On the forms and procedure for notifying the Federal Migration Service about the implementation of labor activities by foreign citizens on the territory of the Russian Federation."

Does the Russian Federal Migration Service plan to install state duty payment terminals in its offices?

Installation of terminals is currently not planned, since the FMS of Russia, in accordance with the General Permit to open accounts for accounting for funds received from entrepreneurial and other income-generating activities, does not have a source for the formation of budget funds from rent and payment of utility bills during the operation of installed terminals.

Foreign employees of representative offices of foreign airlines that provide technical support for flights on the apron need a pass to enter the apron, which is signed (or approved), including by the FMS of Russia division at the airport (any) provided that they have a work permit in the relevant subject. In connection with the latest changes in the legislation, will the requirement to present work permits to obtain a pass to the platform be canceled, since these employees already have personal accreditation cards from the Ministry of Transport? If yes, when will it happen?

Foreign citizens who are employees of representative offices of foreign legal entities accredited in the Russian Federation in accordance with the established procedure and registered in the Russian Federation in accordance with the procedure established by law, within the limits of the number agreed during the accreditation of these representative offices by the authorized accrediting body, on the basis of the principle of reciprocity in accordance with international treaties of the Russian Federation Federations are entitled to carry out labor activities without issuing a work permit, provided that such international treaties contain the specified provisions on exemption from obtaining work permits.

If a foreign worker moves from one legal entity to another, and in this other legal entity he is hired as a highly qualified specialist, is there a need for him to leave the country to obtain a HQS visa, or is it possible to extend a valid visa obtained by a previous employer?

Clause 11 of Article 13.2 of the Federal Law of July 25, 2002 No. 115-FZ “On the Legal Status of Foreign Citizens in the Russian Federation” (hereinafter referred to as the Federal Law) provides that within thirty working days from the date of early termination of the employment contract or civil law contract for the performance of works (rendering of services), a highly qualified specialist has the right to search for another employer or customer of works (services) and obtain a new work permit in the manner and under the conditions provided for in this article. During the specified period, a work permit issued to a highly qualified specialist, as well as a visa and residence permit issued to such a highly qualified specialist and members of his family, are considered valid.
Consequently, when a foreign worker moves from one legal entity to another, in order to apply for a job as a highly qualified specialist, there is no need to leave the country in order to obtain a visa for a highly qualified specialist.

If a company changes its legal address or location of its office, for example, from Moscow to the Moscow Region, what should be the procedure for reissuing work permits for foreign employees?

In this case, a foreign citizen is obliged to apply to the territorial body of the FMS of Russia to amend the information contained in the work permit.

A foreigner who falls into the category of a highly qualified specialist already has a “foreign employee” visa to work in a branch of a foreign company, can this visa be exchanged for a 3-year visa of a highly qualified specialist when submitting the necessary documents to the Federal Migration Service of Russia along with documents for a work permit ? Is it necessary to leave the country in this case?

A highly qualified specialist can submit statutory documents for obtaining a visa when submitting documents to the FMS of Russia for obtaining a work permit without having to leave the country.

In order to develop uniform approaches to the procedures for accepting documents for a highly qualified specialist, please inform us about the date of entry into force of the administrative regulations for issuing work permits, invitations, visas for a highly qualified specialist, indicating the uniform requirements for applications and accompanying documentation.

In order to inform the business community in the regions of the Russian Federation, we ask you to find the possibility of conducting explanatory work with the territorial bodies of the Federal Migration Service of Russia regarding the favorable regime for attracting a highly qualified specialist, since at present the Federal Migration Service of Russia in a number of constituent entities of the Russian Federation does not have the necessary information regarding the hiring of a highly qualified specialist .

In order to inform the territorial bodies of the FMS of Russia about the favorable regime for attracting highly qualified specialists, a series of video conference sessions were held with the leadership of the territorial bodies of the FMS of Russia located in the centers of federal districts. Issues related to the entry into force of the Federal Law of May 19, 2010 No. 86-FZ “On Amending the Federal Law “On the Legal Status of Foreign Citizens in the Russian Federation” and Certain Legislative Acts of the Russian Federation” and its practical implementation norms, the activities of the territorial bodies of the FMS of Russia in the framework of this issue are analyzed.

We ask you to find an opportunity to post on the official website of the Federal Migration Service of Russia a sample of filling out a receipt for paying the state fee for issuing a work permit for a highly qualified specialist, invitations to enter the Russian Federation, as well as extending work visas for a highly qualified specialist.

In accordance with paragraph 1 of Article 333.28 of the Tax Code of the Russian Federation, the state fee is charged for issuing a work permit to a foreign citizen or stateless person in the amount of 2.0 thousand rubles without specifying the qualifications of a specialist.
Therefore, we consider it inappropriate to place on the official website of the FMS of Russia a sample of filling out a receipt for the payment of the state fee for issuing a work permit for highly qualified specialists, since the specified receipt is filled out in the same way, both for a highly qualified specialist and for other involved specialists.
Details when filling out the payment document should be specified in the territorial body of the FMS of Russia at the place where the work permit was issued.

Due to the absence in the Application for the involvement of a highly qualified specialist of the fields for specifying the information necessary for issuing an Invitation to enter the Russian Federation (the address of the place of work of a highly qualified specialist abroad, the name of the employer abroad, the position of a highly qualified specialist abroad, data on the Consular Office of the Russian Federation abroad where it is planned to obtain a highly qualified specialist of a multiple work visa, etc.), we ask you to consider the possibility of making appropriate changes to the Application form, or provide for the possibility for the employer to provide the above or other additional information in the cover letter to the Application.

In the form of an application by the employer, customer of works (services) to attract a highly qualified foreign specialist, information about the previous employer is contained in the section "Information used to assess the competence and skill level of the invited highly qualified foreign specialist".

Please provide for the issuance of an official confirmation by the Federal Migration Service to an authorized representative of the employer applying for a highly qualified specialist after the relevant established forms and supporting documentation are accepted for consideration (for example, a certificate of acceptance of documents or affixing the seal of the Federal Migration Service of Russia on a copy of the Application).

Currently, it is planned to issue an official confirmation of the acceptance for consideration of documents for issuing a work permit for a highly qualified specialist using the seal of the Federal Migration Service of Russia.

Employment conditions in the Russian Federation HQS imply a differentiated payment of wages. At what personal income tax rate are HQS incomes taxed, is it possible to apply the benefit under Article 217 of the Tax Code of the Russian Federation? What insurance rate is applied to HQS income?

The HQS has a high level of salary, which leads to a high amount of "salary" taxes. For example, at least 83,500 rubles per calendar month - for researchers or teachers if they are invited to engage in research or teaching activities; not less than 1 million rubles per year for medical, pedagogical or scientific workers; not less than 83,500 rubles per one calendar month - for foreign citizens involved in labor activity in the territories of the Republic of Crimea and Sevastopol; not less than 167,000 rubles per calendar month - for other foreign citizens.

An exception in terms of the salary requirement is made for HQS participating in the implementation of the Skolkovo federal project.

Now let's consider what "salary" taxes should be paid by the employer from the income of the HQS.

The procedure for calculating personal income tax

Based on paragraph 3 of Art. 224 of the Tax Code of the Russian Federation, the personal income tax rate of 30% is established in respect of income for the performance of labor duties in the Russian Federation received by individuals who are not tax residents of the Russian Federation, with the exception of income received, in particular, from employment as a HQS in accordance with the Law 115-FZ, for which the tax rate is set at 13%.

As a general rule, the employer is a tax agent in terms of personal income tax when paying remuneration to the HQS (clause 1, article 226 of the Tax Code of the Russian Federation). At the same time, the status of an HQS must be confirmed by a work permit issued by the FMS authorities (Letter of the Federal Tax Service of the Russian Federation dated April 26, 2011 No. KE-4-3 / 6735).

With regard to the income of a HQS for the performance of labor duties in the Russian Federation, a tax rate of 13% is applied (Letters of the Ministry of Finance of the Russian Federation of May 17, 2018 No. 03-04-06 / 33293, May 23, 2016 No. 03-04-06/29406, dated April 1, 2016 No. 03-04-06/18552).

That is, the personal income tax rate of 13% is applied to income directly related to the implementation of labor activity, such as the amount of average earnings retained by the HQS for the period of the next vacation and business trip, as well as compensation for unused vacation paid upon dismissal.

However, for other payments in cash or in kind (material assistance, gifts, reimbursement of the cost of paying for housing, etc.), a personal income tax rate of 30% is applied if HQS are not tax residents of the Russian Federation (Letters of the Ministry of Finance of the Russian Federation dated 05.08.2014 No. 03-04-06/38542, dated 06/30/2014 No. 03-04-06/31385, dated 06/21/2013 No. 03-04-06/23539).

A few words about tax deductions. Despite the fact that personal income tax is levied on the salary of a HQS from the first day of work at a rate of 13%, this does not mean that such employees receive the status of a resident of the Russian Federation. Thus, it is possible to reduce the amount of personal income tax for tax deductions provided for in Articles 218-220 of the Tax Code of the Russian Federation (standard, social and property deductions) after the HQS becomes a tax resident of the Russian Federation.

Payment of HQS compensation upon dismissal. Is it possible to apply the benefit under clause 3 of article 217 of the Tax Code of the Russian Federation?

As a general rule, in terms of personal income tax, there is a benefit provided for by paragraph 3 of article 217 of the Tax Code of the Russian Federation. So, all types of compensation payments established by the legislation of the Russian Federation (within the limits established in accordance with the legislation of the Russian Federation) related, in particular, to the dismissal of employees, are not subject to personal income tax, with the exception of compensation for unused vacation, and also with the exception of the amount of payments in the form severance pay, average monthly earnings for the period of employment, compensation to the head, deputy heads and chief accountant of the organization in the part exceeding in general three times the average monthly salary or six times the average monthly salary for employees dismissed from organizations located in the Far North and equivalent to them areas (clause 3 of article 217 of the Tax Code of the Russian Federation). The amounts of the above payments upon dismissal, exceeding three times the size (six times the size) of the average monthly earnings, are subject to personal income tax in the prescribed manner.

In this regard, the question arises - what personal income tax rate is applied when paying a foreign employee - HQS compensation upon dismissal? Is it possible not to tax these payments with personal income tax within the limits of three times the size (six times the size) of the average monthly earnings?

Upon dismissal of a HQS by agreement of the parties, compensation payments are not subject to personal income tax in the general manner. Upon dismissal of the HQS by agreement of the parties, compensation payments are exempt from personal income tax. The amount exempt from personal income tax should not exceed a total of three times the average monthly earnings. And for the regions of the Far North - six times the average monthly salary.

The Tax Code of the Russian Federation does not provide for any specifics in the calculation of personal income tax upon dismissal of a HQS.

When paying HQS income, a personal income tax rate of 13% is applied on income that is directly related to labor activity. This rate applies, among other things, to compensation payments made upon dismissal of an employee in accordance with paragraph 1 of Art. 77 of the Labor Code of the Russian Federation in terms of the amount exceeding three times the average monthly salary (Letters of the Federal Tax Service of the Russian Federation of March 15, 2019 No. BS-4-11 / 4681 @, the Ministry of Finance of the Russian Federation of October 08, 2018 No. 03-04-06 / 72202) .

The procedure for calculating insurance premiums

As a general rule, HQSs with the status of “temporarily staying in the Russian Federation” and working under employment contracts in the Russian Federation are not subject to mandatory pension insurance, that is, the payment of remuneration to them is not subject to contributions to the Pension Fund of the Russian Federation (clause 1, article 7 of Law No. 167-FZ , Clause 1, Article 2 of Law No. 255-FZ, Letters of the Ministry of Finance of the Russian Federation of January 29, 2019 No. 03-15-06 / 5081, Federal Tax Service of the Russian Federation of November 22, 2017 No. GD-4-11 / 26208@, Ministry of Labor RF dated November 18, 2015 No. 17-3 / V-560).

Payments in favor of HQS employees with the status of "permanently or temporarily residing in the territory of the Russian Federation" are subject to taxation only by insurance premiums for mandatory pension insurance and compulsory social insurance in case of temporary disability and in connection with motherhood (Letter of the Ministry of Finance of 08/01/2018 No. 03-04-06/54287). Persons with the status of temporary residents are not subject to such insurance (Article 2 of the Federal Law of December 29, 2006 No. 255-FZ).

HQS is subject to injury insurance on a general basis. Consequently, insurance premiums “for injuries” are accrued on the remuneration paid to him within the framework of labor relations (Article 20.1 of the Federal Law of July 24, 1998 No. 125-FZ).

What insurance premiums a HQS must pay depending on its status are systematized in the table:

Conclusion- as soon as the HQS receives a residence permit, that is, acquires the status of "permanently residing in the territory of the Russian Federation", then the payment of remuneration to him will be subject to insurance premiums to the Pension Fund of the Russian Federation, the FSS of the Russian Federation and the FFOMS of the Russian Federation (Letter of the Ministry of Labor of the Russian Federation of December 18, 2015 No. 17 -3/B-620).

Highly qualified foreign specialists are attracted to work in our country according to special rules, and special requirements are imposed on their earnings (I must say, rather big ones). From April 24, 2015, all employers accepting HQS are required to inform the migration service on a quarterly basis that they are fulfilling all salary obligations. After all, even if the employee was sick or on vacation, he still received the minimum wage.

T ore activities of foreign citizens - highly qualified specialists are regulated by Art. 13.2 of the Federal Law of July 25, 2002 No. 115-FZ "On the Legal Status of Foreign Citizens in the Russian Federation" (hereinafter - Law No. 115-FZ).

Not every foreigner VKS

A hired foreign citizen is recognized as a highly qualified specialist if the following conditions are simultaneously met.

Condition 1. He has work experience, skills or achievements in a particular field of activity. The employer (customer) independently assesses his competence and skill level - this issue is not regulated by law.

Condition 2. Attracting him to work in the Russian Federation involves receiving a certain salary (remuneration).

The amount of earnings of foreign workers with the status of a HQS must meet special requirements.

History of the problem...

In order to understand the full scale of the current situation and assess the consequences, let's remember what advantages a foreign worker has the status of an HQS.

Advantage 1. Work permits required by foreign workers are issued by HQS and their family members outside the established quotas, without taking into account the allowable share of foreign workers in the relevant industry or in the constituent entity of the Russian Federation (Clause 2, Article 13.2 of Law No. 115-FZ).

Advantage 2. During the period when the HQS does not have the status of a tax resident of the Russian Federation, personal income tax on his income received from labor activity is calculated at a rate of 13% (Clause 3, Article 224 of the Tax Code of the Russian Federation).

Advantage 3. The employer does not accrue insurance premiums for any payments in favor of the HQS, since such a foreign worker is not recognized as an insured person within the framework of:

compulsory pension insurance (Article 7 of Federal Law No. 167-FZ of December 15, 2002 “On Compulsory Pension Insurance in the Russian Federation);
compulsory social insurance (Article 2 of the Federal Law of December 29, 2006 No. 255-FZ “On Compulsory Social Insurance in Case of Temporary Disability and in Connection with Motherhood”);
compulsory health insurance (Article 10 of Federal Law No. 326-FZ of November 29, 2010 “On Compulsory Medical Insurance in the Russian Federation”).

It is obvious that recognition of a foreign HQS worker is very beneficial for an employer.

It is important to note that the original wording of paragraph 1 of Art. 13.2 of Law No. 115-FZ allowed, in the general case, to recognize a foreign HQS employee subject to one requirement: engaging him in labor activity in the Russian Federation implies receiving a salary (remuneration) in the amount of at least 2 million rubles. based on one year (365 calendar days).

Thus, it was enough to indicate in the employment contract the salary of 167,000 rubles. (167,000 rubles × 12 months = 2,004,000 rubles), and the “salary” condition was considered fulfilled.

Further, wages were accrued according to general rules, in proportion to the hours worked. Therefore, in cases where a foreign worker did not actually work due to temporary incapacity for work or the granting of leave without pay, the amount of accrued wages was less than 167,000 rubles. per month. And despite the fact that the actual remuneration for the year did not reach the established amount, there were no formal grounds for presenting claims to the employer.

example

The court declared illegal the refusal to issue a work permit to a foreign worker due to the fact that the amount of wages received by him for the year turned out to be less than 2 million rubles. At the same time, it was noted that the employer provided evidence that the obligations undertaken by him to the foreign worker were fulfilled in accordance with the terms of the contract, while the payment of wages in the amount of less than 2 million rubles. due to the fact that the employee was granted unpaid leave twice during the period under review (Decree of the Federal Antimonopoly Service of the Moscow District of 06/03/2013 in case No. А40-83319/12-153-861).

Similar explanations were given by the tax authorities: in order to calculate personal income tax on the income of these employees, it is precisely the presence of a concluded employment contract that matters, according to which the remuneration of the HQS is at least 2 million rubles. per year, and not the annual income actually received by him (Letters of the Ministry of Finance of Russia dated 04.05.2012 No. 03-04-06 / 6-130, the Federal Tax Service of Russia dated 02.10.2012 No. ED-4-3 / 16395).

Quite logically, questions arose: how to control whether the employee was really granted leave without pay, were they not fictitious, for what periods was he actually released from work? Obviously, this cannot be controlled.

Some employers, taking advantage of this situation, resorted to various schemes.

The employment contract indicated the salary required by law (167,000 rubles), while the parties agreed that the employee would receive, for example, 80,000 rubles. It is not difficult to calculate the amount of time worked, which should be shown in the time sheet - 0.48 norms (80,000 rubles: 167,000 rubles), i.e. 10 working days out of 21, 11 working days out of 23, etc. e. The rest of the days were documented as unpaid leave, temporary disability (since the employee is not entitled to benefits, there are no requirements for documenting the release from work), etc.
Every month, the employee receives a salary, the amount of which is less than 167,000 rubles. (for example, the same 80,000 rubles), and at the end of the year of work, he was promised a bonus of 1,040,000 rubles. (80,000 rubles × 12 + 1,040,000 rubles = 2,000,000 rubles). But if the employee leaves earlier, then the amount of the bonus decreases.

And now let's think about why companies hire foreign citizens if today there is enough “own” labor force in the labor market? Perhaps a foreigner is less demanding, including the amount of payment for his work. This explains the presence of foreign workers - janitors, car washers, construction workers, etc., who are not HQS. And the HQS are those foreign specialists who have unique (for our country) knowledge, experience, and skills. A high level of remuneration must fully correspond to their qualifications.

Hence the next fair question. How much does the organization need a unique and highly paid specialist who is sick or solves personal problems most of the time while on unpaid leave?

Recall that, as a general rule, established by Art. 128 of the Labor Code of the Russian Federation, an employee, upon his written application, may be granted unpaid leave (for family reasons and other valid reasons), the duration of which is determined by agreement between the employee and the employer. We are not talking about the benefits provided for certain categories of workers to whom the employer is obliged to meet halfway.

Therefore, the employer has the right to refuse to grant the employee unpaid leave, even if the latter has good reasons. The same rules apply to foreign workers, including (and first of all) HQS - they were invited to work and the conditions of payment for their work allow the employer to demand particularly effective labor activity.

Of course, the employer may not agree with this, but then the state reserves the right to intervene and resolve the situation in its own way.

In general, such tricks were quickly uncovered, for example, by the tax authorities, and it became clear that it was necessary to more strictly formulate the “salary” condition and strengthen control over its implementation.

…and its solution

Federal Law No. 56-FZ of 08.03.2015 clarified the requirements of interest to us. Since April 24, 2015, the minimum amount of remuneration for HQS has been set for a month, and not for a year, as it was before.

A foreigner is a HQS if, according to the agreement concluded with him, the amount of the monthly remuneration will be:

not less than 58,500 rubles. - for foreign citizens involved in labor activity by residents of the technology-innovative special economic zone;
at least 83,500 rubles. - for videoconferencing:

- who are researchers or teachers, if they are invited to engage in research or teaching activities in state-accredited educational programs;
– attracted to labor activity by residents of industrial-production, tourist-recreational, port special economic zones;
– involved in labor activity by legal entities operating in the territories of the Republic of Crimea and the federal city of Sevastopol;

not less than 167,000 rubles. - for other foreign citizens.

In two cases, special rules apply.

Without taking into account the requirement for the amount of wages, the status of a HQS is assigned to foreign citizens participating in the implementation of the Skolkovo project.
The amount of remuneration (not less than 1 million rubles) is determined on a one-year basis (365 calendar days) for HQS who are medical, pedagogical or scientific workers, if they are invited to engage in relevant activities on the territory of the international medical cluster.

At the same time in Art. 13.2 of Law No. 115-FZ, a new paragraph 1.4 was introduced, which removed questions about a break in the implementation of HQS labor activities in the Russian Federation in connection with his illness, being on leave without pay or other circumstance due to which, for the period of the specified break, payment of his salary was not produced or not produced in full. In this case, the condition for attracting this HQS in terms of the amount of salary received by him is considered to be met if its total value for three calendar months during the reporting period is three times the amount of the monthly minimum amount of his salary.

Notification of the FMS of Russia

note

The notification to the territorial body of the FMS of Russia is submitted in the form approved by the order of the FMS of Russia dated June 28, 2010 No. 147 (Appendix No. 7).

Control over compliance with migration legislation, including in relation to the involvement of HQS, is entrusted to the FMS of Russia and its territorial bodies.

In order to exercise their powers, the bodies of the FMS of Russia must receive relevant information in a timely manner.

In this regard, the employer is obliged to quarterly, no later than the last working day of the month following the reporting quarter, notify them of the fulfillment of obligations to pay wages (remuneration) to highly qualified specialists (Clause 13, Article 13.2 of Law No. 115-FZ). Moreover, this obligation does not depend on the status of the HQS: a foreign citizen temporarily staying, temporarily or permanently residing in the Russian Federation.

The employer can submit a notice both on paper and in electronic form using public information and telecommunication networks, including through a single portal of state and municipal services.

The notification shall contain, in particular, information on the fulfillment of obligations for the payment of wages (remuneration) in general for the reporting period (quarter) and on a monthly basis. In case of early termination of the contract, the FMS should be informed about the payment of wages for the period worked.

At the same time, the employer no longer has to notify the Federal Migration Service about the provision of unpaid leave to the HQS. (Order of the Federal Migration Service of Russia dated December 8, 2014 No. 640). This information is now irrelevant - for the reporting period, the condition for the payment of the minimum wage must be met, regardless of the presence or absence of such holidays.

How to comply with salary requirements

So, the legislator put forward his demand: regardless of any circumstances, in each reporting period (quarter), the HQS must receive a three-month minimum wage. How to ensure the fulfillment of this condition, each employer decides independently.

Don't lose sight

At the same time, no one cancels the general rules of the Labor Code of the Russian Federation: the salary part of the salary is calculated in proportion to the time actually worked during the month. The full salary is received only by the employee who has fully worked out the norm established for the given month by the production calendar. Accordingly, if during the month the employee was sick or was on vacation without pay, then the salary part of the salary is reduced.

At the same time, in addition to the salary, other payments are included in the salary, it is with the help of them that the employer can fulfill the requirements for the minimum monthly earnings of the HQS.

Method 1. List and amount of incentive payments (Article 129 of the Labor Code of the Russian Federation) Each employer determines (Article 135 of the Labor Code of the Russian Federation). The presence of bonuses that increase the amount of monthly payments (provided that the bonuses are accrued in excess of the salary set at the minimum allowable amount of 167,000 rubles) will allow you to comply with the condition on the amount of wages for the quarter, even if not all days are worked out in a particular month.

Method 2. No one forbids employers to provide for various social benefits (Article 57 of the Labor Code of the Russian Federation). Thus, you have the right to include in the employment contract with the HQS, for example, a condition for paying at his own expense for his days of incapacity for work and (or) a condition for granting him additional paid leave for personal reasons (instead of unpaid leave).

Note that if the employer accrued insurance premiums to the Pension Fund of the Russian Federation and the FSS of Russia (1.8% for a foreign worker temporarily staying in the Russian Federation), then for the year from wages (2,004,000 rubles) the amount of insurance premiums would be 297,780 rubles . (711,000 rubles × 22% (2,004,000 rubles – 711,000 rubles) × 10% 670,000 rubles × 1.8%). The amount “saved” on insurance premiums can be used by the company for the implementation of these incentive and social payments.

Method 3. As we have already mentioned, the employer has the right not to provide the HQS with unpaid leave.

Responsibility

Violation	Sanction (consequences)	Base
Failure to notify or violation of the established procedure and (or) form of notification by the employer, involving the HQS, the territorial body of the Federal Migration Service on the fulfillment of obligations to pay wages (remuneration) to highly qualified specialists	Administrative penalty: for officials - from 35 thousand to 70 thousand rubles; for legal entities - from 400 thousand to 1 million rubles.	Paragraph 5 of Art. 18.15 of the RF Code of Administrative Offenses
Non-fulfillment by the employer of the obligations assumed, arising from the terms of the employment contract concluded with the HQS, in particular the terms on the amount of the monthly remuneration	Deprivation for two years of the right to attract foreign citizens to work in the Russian Federation as an HQS	Paragraph 26 of Art. 13.2 of Law No. 115-FZ

Summing up

Law No. 115-FZ does not cancel or change the rules established by labor legislation, and does not require the accrual of full wages to an employee who has not worked a full month (which is reflected in the time sheet).

At the same time, since the status of a HQS allows companies not to pay insurance premiums to off-budget funds and withhold personal income tax from the first day at a rate of 13%, the legislator requires them to ensure compliance with the minimum wage in any way possible.

If the employer is unable or unwilling to pay a foreign worker a salary in the minimum allowable amount, then he should register this worker not as a HQS, but in the manner prescribed for hiring foreign citizens temporarily staying on the territory of the Russian Federation. Then, in a general manner, accrue insurance premiums for mandatory pension insurance and social insurance in case of temporary disability on payments made in favor of such employees.

Popular

Discharge from the urethra in men: the norm, a sign of disease

« The male reproductive system is designed in such a way that the urethra performs 2 functions: the export of seminal fluid and urination. As expected, the channel ... »

Pulling pain in the lower abdomen on the left and the causes of its appearance

« If the left side of the lower abdomen in women hurts, what could be the reasons? Topographically, several organs are projected onto the left iliac region: ... »

Greens with a unique aroma: an overview of varieties, cultivation, use and beneficial properties of tarragon What helps tarragon grass

« Tarragon (other names for tarragon, dragoon-grass) is a perennial herbaceous plant from the wormwood genus. It is widely used in alternative... »