Key changes in migration legislation that came into force in 2021

What categories of foreigners exist?

The following categories of foreign citizens are distinguished according to their migration status:

• permanent residents - residence permit (residence permit), please note - residence permit is not an identity document;
• temporary residents - temporary residence permit (TRP);
• temporarily staying - visa, work permit, patent, or on the basis of international treaties - for example, for citizens of the EAEU.
• Foreign workers are divided into more categories than foreign citizens:
• citizens of Belarus;
• citizens of the EAEU countries;
• VKS;
• temporary and permanent residents;
• citizens of countries with visa-free entry;
• citizens of countries with visa entry;
• full-time students.

With regard to citizens of Belarus, there is a dual position regarding the need to notify about the conclusion/termination of an employment/civil law contract and to issue a VHI policy.

In accordance with paragraph 8 of Article 13 of the Federal Law of July 25, 2002 No. 115-FZ “On the Legal Status of Foreign Citizens in the Russian Federation,” the customer of work or services is obliged to notify the migration authorities of the conclusion/termination of an employment/civil law contract with a foreign citizen in within three working days from the date of conclusion of the contract.

There is an alternative position that there is no need to notify the migration authorities. This position is based on the Decision of the Supreme Council of the Community of Belarus and Russia and confirmed by the Resolution of the Supreme Court of the Russian Federation.

At the same time, despite the existence of this position, migration authorities continue to insist on the need for notification of the conclusion and termination of an employment/civil law contract with citizens of Belarus, and in the absence of such notification they can hold the company liable in accordance with Part 3 of Art. . 18.15 of the Code of Administrative Offenses of the Russian Federation (Part 4 of Article 18.15 of the Code of Administrative Offenses of the Russian Federation - for Moscow, Moscow region, St. Petersburg and Leningrad region) with the imposition of an administrative fine on the company of up to 1,000,000 rubles and administrative suspension of activities for up to 90 days. In this regard, in the case of an agreement with a citizen of Belarus, in order to minimize risks, we recommend notifying the migration authorities .

The same contradictory situation arose with the registration of a VHI policy. According to the position of the Ministry of Labor of the Russian Federation, a VHI policy is not required for citizens of Belarus, but there is judicial practice that says the opposite. In this regard, experts recommend that in relation to citizens of Belarus, both submit notifications about the conclusion/termination of a contract to the relevant authorities and issue a VHI policy for them.

Mandatory conditions in an employment contract with a foreign worker are:

• full name and passport details of the employee (they must be indicated identically in all documents drawn up, including in case of changes);
• place of conclusion of the contract (migration authorities can check the actual location of the employer in Russia at the time of conclusion of the contract);
• place of work. If a foreign worker works under a patent in several regions of Russia, then it is necessary to obtain a patent in each region. If a foreign worker works with a work permit, then the permit must indicate all the regions in which he works; in this case, the contract specifies one place of work - at the location of the company;
• labor function (some migration authorities require the position of a foreign worker to be indicated according to the job classifier);
• conditions on the traveling or remote nature of work (there are restrictions on business trips of foreign citizens in the region where they do not have a work permit or patent; there are also restrictions on working remotely outside of Russia);
• details of a work permit, patent, temporary residence permit or residence permit, policy or voluntary health insurance agreement . All changes to them must also be made to the documents issued for the foreign worker.

Is it possible to leave and enter every three months?

A frequently encountered story: a foreigner comes to Russia, stays here for 90 days, leaves for three hours or several days and goes back to the Russian Federation. So what? Border guards let you into the country, which means, the migrant thinks, no punishment will follow. And this is a mistake. Exiting and entering every three months is a violation of the law. And sooner or later, the person who uses this scheme will receive an entry ban.

You may ask, why then do the border guards allow the violator into Russia? The fact is that, firstly, the punishment is imposed not by border guards, but by specialists from the Ministry of Internal Affairs. Secondly, the entry ban is not imposed immediately. It may take months, or even years, from the start of the procedure until the ban is issued. It may well be that the procedure against the violator has already begun, but he is allowed through at the border, since he is not yet on the list of foreigners for whom entry has been denied. Therefore, lawyers advise not to tempt fate and plan your stay in the Russian Federation within the framework of the law.

How is the entry ban applied for violating the 90/180 regime?

New regulations

In 2020-2021, in connection with the coronavirus pandemic, a number of regulatory legal acts in the field of migration law were developed and adopted in Russia, regulating entry and exit, employment, stay, quarantine, etc. The following documents can be identified as key ones: :

1. Decree of the President of the Russian Federation dated June 15, 2021 No. 364 “On temporary measures to regulate the legal status of foreign citizens and stateless persons in the Russian Federation during the period of overcoming the consequences of the spread of the new coronavirus infection (COVID-19)” (hereinafter referred to as Decree No. 364).
2. Order of the Government of the Russian Federation dated March 16, 2020 No. 635-r “On temporary restriction of entry into the Russian Federation of foreign citizens and stateless persons and temporary suspension of the processing and issuance of visas and invitations.”
3. Resolution of the Chief State Sanitary Doctor of the Russian Federation dated March 18, 2020 No. 7 “On ensuring the isolation regime in order to prevent the spread of COVID-2019.”
4. Resolution of the Chief State Sanitary Doctor of the Russian Federation dated March 30, 2020 No. 9 “On additional measures to prevent the spread of COVID-2019.”
5. Decree of the Mayor of Moscow dated March 5, 2020 No. 12-UM “On the introduction of a high alert regime.”

Changes have also been made to the documents submitted to the migration authorities. New forms of documents for attracting foreign citizens:

1. Order of the Ministry of Internal Affairs of Russia dated July 30, 2020 No. 356 - Notification of the conclusion of an employment contract, notification of termination of the employment contract, notification of payment of remuneration to the HQS;
2. Order of the Ministry of Internal Affairs of Russia dated September 29, 2020 No. 677 - Application for issuing an invitation to enter;
3. Order of the Ministry of Internal Affairs of Russia dated December 10, 2020 No. 856 - Notification of the arrival of foreign citizens or stateless persons at the place of stay;
4. Order of the Ministry of Internal Affairs of Russia dated December 21, 2020 No. 23235 - Purposes of travel to Russia - are indicated on the foreign citizen’s visa;
5. Responsibility memo - in the responsibility memo, which is submitted to the Department of Internal Affairs of the Main Directorate of the Ministry of Internal Affairs of Russia in Moscow when accrediting a company, responsibilities are added in accordance with Decree of the Government of the Russian Federation of September 15, 2020 No. 1428.

Let's consider the most significant of them from the point of view of migration legislation.

Period of execution

So, let's move directly to the deadlines for fulfilling the requirements.

The requirement to provide explanations (documents) as part of a desk audit (Article 88 of the Tax Code of the Russian Federation) is five working days. Taking into account the above Resolution, if the request for documents and other information was received from March 1 to May 31, 2021, the temporarily established new deadlines are 25 working days; in the case of a desk audit for VAT – 15 working days.

Requirements for the submission of documents as part of a desk audit (clause 3 of Article 93 of the Tax Code of the Russian Federation) - 10 working days. Temporarily established new deadlines are 30 working days; in the case of a desk audit for VAT – 20 working days.

The requirement to submit documents (information) regarding the counter-inspection (clause 5 of Article 93.1 of the Tax Code of the Russian Federation) is five working days. Temporarily established new deadlines are 25 working days; in the case of a desk audit for VAT – 15 working days.

The required documents can be presented to the auditors in person or through a representative, sent by registered mail, or transmitted electronically via telecommunications channels or through the taxpayer’s personal account.

Decree No. 364

As of June 15, 2021, Presidential Decree No. 274 dated April 18, 2020 is no longer in force. Instead, a new document was adopted - Decree No. 364 dated June 15, 2021, regulating the employment of foreign citizens and stateless persons, their stay on the territory of the Russian Federation during the period of overcoming the consequences of the spread new coronavirus infection (COVID-19).

Decree No. 364 established 3 reference points. 2 of them are fixed, one is floating:

• Until September 30, 2021, foreign citizens can contact the migration authorities to receive a mark on the migration card to extend their stay, or to register them with migration authorities.
• Until December 31, 2021, foreign citizens can enter into employment contracts, regardless of the purpose of entry and regardless of the category of visa that was issued to them.
• As soon as transport links with a foreign state are opened (entry bans are lifted), the period begins to count so that foreign citizens of that state can extend their stay in Russia. Until this moment, the course of their stay, migration registration, visas, etc. suspended in Russia. The expiration of work permits and patents according to Decree No. 364 is not suspended, that is, they must be extended as they expire.

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A foreigner violated rule 90 of 189: what threatens him?

For violation of the regime, migration authorities issue an entry ban. According to paragraph 8 of Article 26 of Federal Law No. 114 “On the procedure for leaving and entering the Russian Federation...”, a foreigner who lingers in the Russian Federation risks receiving an entry ban for a period of three years.

If the period of 90 days has ended, and the migrant remained in Russia for another 6 to 9 months, then he will be banned from entering the country for 5 years (clause 13 of Article 27 of Federal Law No. 114).

If, after the expiration of 90 days, a foreigner illegally resided in Russia for more than 9 months, then he will be prohibited from entering the country for 10 years (clause 14 of Article 27 of Federal Law No. 114).

Changes in the practice of migration authorities

There have also been changes in the practice of the Moscow migration authorities:

Interview when submitting documents for an invitation

When the inviting party registers with the migration authorities, the general director (chief accountant) is required to come for an interview.

Place of birth of the foreign worker

Previously, the place of birth had to be indicated according to the foreign worker’s passport. Currently, it is necessary to request a birth certificate from a foreign worker if his passport indicates only the country of birth or the place of birth is not indicated.

Information about the education and places of work of highly qualified specialists (HQS)

Previously, migration authorities accepted documents without this information. Currently, the application for entry must include information about the highest level of education available and work experience over the past 10 years.

Approval of the relevant ministry for inviting foreign citizens

Previously, migration authorities required the approval of the relevant ministry to submit documents to invite HQS and maintenance workers from “open” countries. Currently, inviting foreign citizens from “open” countries does not require prior approval, regardless of the purpose of entry.

The process of attracting foreign highly qualified specialists from “closed countries” has now become somewhat more complicated. From now on, the entry of the employee and accompanying family members must be approved by the relevant ministry. Thus, the overall period for attracting highly qualified specialists has increased. Up to approximately 2.5 months.

Step-by-step plan for attracting HQS workers:

1. Concluding an employment contract and submitting a notice;
2. Coordination of the entry of the employee and family members with the relevant ministry;
3. Submission of documents for obtaining a work permit;
4. Submission of documents for issuing visa invitations to enter for employees and members of their families;
5. Obtaining visas at the Russian visa center or Consulate;
6. Entry into Russia and obtaining a work permit.

That is, now it is necessary to go through one more step - to coordinate the entry of the employee and his family members with the relevant ministry. This “complicated” regime is currently maintained, for example, for citizens of China and Israel.

New procedure for marks in the Russian passport

From July 16, 2021, the following marks request

• on registration and divorce;
• about children (citizens of the Russian Federation under 14 years of age);
• about foreign passports;
• about previously issued general passports;
• about blood group and Rh factor (as before);
• about TIN (as before).

Notes on registration at the place of residence and deregistration, as well as on military service, remained mandatory .

Change in migration status

Obtaining temporary residence permit, residence permit or Russian citizenship

The position of the migration authorities: when changing the migration status of an employee, it is necessary to dismiss the employee in the previous migration status and hire him in a new migration status, notifying the migration authorities of each of your actions.

Position of the labor inspectorate: when changing the migration status of an employee, there is no need to terminate the employment contract, since there are no grounds for dismissal. In addition, a foreign employee may refuse to resign himself, as he may lose corporate bonuses, accumulated vacation, etc.

Experts recommend adhering to the position of the migration authorities

Obtaining a temporary residence permit by an employee - VKS

Russian legislation does not provide for the combination of the status of a HQS and a temporary resident. Experts recommend canceling the work permit of a HQS immediately after receiving a temporary residence permit.

Patent renewal

Extension of temporary registration under a patent is carried out for the period for which the tax for a patent to work in the Russian Federation was paid.

If a foreign citizen has paid the tax for 30 days, then renewal of registration is possible only for this time. If a person renews registration under a patent in advance for 12 months and leaves the country before the expiration of this period, then after returning he will again need to register with the authorized body.

When a foreigner pays for a patent, he thus automatically extends his time on Russian territory.

Against the backdrop of changes in the length of stay of a foreigner in Russia, there is a need to notify the authorized body. This is regulated by Russian legislation.

On our website you can use a calculator for the length of stay in Russia.

Deadlines and possible sanctions

Patent registration renewal is carried out within 72 hours after payment of the relevant tax.

A foreign citizen who does not extend his stay in the country in a timely manner is obliged to cross the border again and receive a new “migration card.” After this, migration registration is completed again.

Ignoring this requirement is equivalent to administrative violations. If a foreigner does not renew registration under a patent, he will have to pay a fine of 2.5 thousand rubles. A ban on entry into the Russian Federation is imposed only if the fine is repeated.

Extension of migration registration by the employer

The package of documents is prepared by the Russian employer. The list of documents required to renew the registration of a foreign citizen under a patent includes the following documents:

1. A photocopy of the agreement concluded with a foreign citizen.
2. A copy of the latest receipt indicating payment of the relevant tax.
3. Copies of all current receipts for all periods.
4. Work patent (original + photocopy).
5. Notification of registration for migration in Russia (original + photocopy).
6. Form for notification that a foreign person has arrived on the territory of the Russian state.
7. Migration card (original + color photocopy).
8. International passport of a foreign worker (color photocopy of 1 page + photocopies of all pages with entry stamps).

Renewal of a patent at the place of residence is carried out on the basis of the same documents.

Sample application from the place of work to renew registration for a foreigner

The Russian employer must make photocopies of all certificates. The originals of the migration card and the tear-off coupon must be returned to the foreigner.

If a foreign person leaves the territory of the Russian state ahead of schedule, the detachable part of the notification is submitted to the authorized body.

If a foreigner does not have a tear-off coupon (lost), he should apply for a duplicate to the territorial body of the Ministry of Internal Affairs of Russia.

Features of the review procedure

Having received a package of documents, an authorized employee of the territorial body of the Ministry of Internal Affairs of Russia:

1. Checks the availability of all necessary certificates.
2. Checks the foreigner against the database of the Central Bureau of Intellectual Property Management. This allows the inspector to determine whether the migrant has any serious violations.
3. He gets acquainted with the questionnaire and carefully studies other documents.
4. Places a department stamp in the appropriate place on the form with a mark indicating that the foreign person has been registered.
5. Places a stamp containing the name of the service department, the subject of the Russian Federation and the date according to which migration registration is valid.
6. Places a similar stamp on the back of the immigration document and makes the appropriate notes.
7. Sends the documents to the head of the unit, who certifies the stamp and records with his signature and official seal.

If the department code on the seal consists of 6 characters, then the document is not considered valid. The stamp must contain only 3 digits.

The procedure ends with a decision. It can be both positive and negative.

Restrictions on the work of foreign citizens

After making a decision to create a branch or representative office of a foreign legal entity, it is necessary to submit an application for accreditation, which includes information certified by the Chamber of Commerce and Industry of the Russian Federation on the number of foreign citizens who are employees of this branch or representative office (Article 21 of the Federal Law of 07/09/1999 No. 160-FZ “On foreign investments in the Russian Federation”).

The application for accreditation of a branch or representative office indicates the exact number of foreign employees of the branch or representative office who will work in the branch or representative office. If the number of foreign workers changes, this must be agreed upon through the Chamber of Commerce and Industry of the Russian Federation, then the changes must be registered with the tax service.

If the number of foreign employees exceeds, there is a risk of cancellation of accreditation due to the fact that the activities of a branch or representative office of a foreign legal entity contradict the legislation of Art. 21 of the Federal Law of July 9, 1999 No. 160-FZ “On Foreign Investments in the Russian Federation” and bringing a branch or representative office to administrative liability for failure to comply with restrictions on the implementation of certain types of activities (Article 18.17 of the Code of Administrative Offenses of the Russian Federation).

Request for extension

Please note: an organization may ask for an extension of the deadline for providing the required documents, which would not hurt to take advantage of the institution with whose history this article began.

To do this, within one day following the day of receipt of the request for the submission of papers, it is necessary to notify the tax auditing authority in writing using the methods listed above about the impossibility of submitting documents within the specified time frame, indicating the reasons why the papers cannot be submitted within the time limits established by law, and the time period within which the person being inspected can submit them. Notification of the impossibility of sending documents within the time period established in the request is submitted to the tax authority in the form KND 1125045, approved by order of the Federal Tax Service of Russia dated January 25, 2021 No. ММВ-7-2 / [email protected]

In turn, the head (deputy head) of the tax authority, within two days from the date of receipt of the notification, has the right to extend the deadline for submitting documents or to refuse an extension, for which a separate decision is made (clause 2 of Article 93 of the Tax Code of the Russian Federation).

Remote work for foreign citizens

According to tax legislation, a foreign citizen who stays outside the Russian Federation for a long time loses his tax resident status and the personal income tax rate for him becomes 30% (instead of 13% or 15%).

Migration consequences (if staying more than 6 months outside the Russian Federation) include the risk of revocation of a work permit or patent.

The legislation does not resolve the issue as to whether these are 6 months in a row, or in total during the calendar year. Experts recommend limiting a foreign worker’s stay outside Russia to six months during a calendar year. It should be noted that in practice such a measure is used extremely rarely by migration authorities.

As for administrative responsibility, if a foreign worker works on the basis of an employment contract, then, according to the position of the Ministry of Labor, in this case the employer cannot provide him with safe working conditions outside the Russian Federation. Therefore, the work of a foreign worker on the basis of an employment contract outside of Russia is prohibited.

In case of violation of this prohibition, there is a risk of bringing the employer to administrative liability. In such cases, experts recommend concluding a GPC agreement with foreign workers.

Responsibility for violation

“For dessert,” it’s worth clarifying what the consequences are for late provision or refusal to provide the requested documents.

Refusal to submit documents requested during a tax audit or failure to submit them within the established time frame is recognized as a tax offense and entails liability under paragraphs 1 and 2 of Article 126 of the Tax Code of the Russian Federation.

Unlawful failure to report (untimely reporting) by a person of information that, in accordance with the Code, this person must report to the tax authority, is recognized as a tax offense and entails liability under Article 129.1 of the Tax Code of the Russian Federation. In addition, failure to submit within the time limit established by the legislation on taxes and fees or refusal to submit to the tax authority documents and (or) other information necessary for tax control, completed in accordance with the established procedure, as well as submission of such information incompletely or in a distorted form shall entail administrative responsibility of citizens and officials of the organization, provided for in part 1 of article 15.6 of the Code of Administrative Offenses of the Russian Federation.

Heads of all types of organizations need to closely monitor themselves or assign specific officials the responsibility to monitor the receipt, preparation and, most importantly, compliance with deadlines for responses to the requirements of the tax services. As judicial practice shows, the successful resolution of a dispute in favor of the taxpayer often depends on compliance with these very deadlines.