Non-Quota Positions and Professions in 2010

Yevgeny Reyzman
Counsel
Baker & McKenzie

Something has finally happened to revive the dying hopes of law-abiding foreign companies that employ expats in Russia. The Health and Social Development Ministry, in order No. 1010n of Dec. 22, 2009, has set out the 2010 List of Positions and Professions of expat qualified specialists for whom migration quotas do not apply. For companies like us this is a magic list!

However, at first inspection, this magic list does not look so magic. It provides no absolute guarantee that you will obtain a work permit for your expat employee, even if his position is included on the list. Let us imagine that your corporation has decided to appoint an experienced manager from a Western country to a listed position — for example “director of economics.” We cannot rule out that the local employment center will refuse to approve the candidate, arguing that a local employee may be equally suitable. We remind our readers that the procedure for obtaining work permits for those on the list has not changed: Employers are required to first declare to the local employment authorities the vacancies that they intend to offer to expats not later than one month before they apply for specific work permits. In theory, these authorities may find local applicants that meet the employers’ criteria.

But this is not inevitable — and vigilantibus jura scripta sunt (“laws are written for the vigilant”). We can take care not to give the authorities excuses for turning down candidates. Certain techniques are well-known: for instance, setting requirements for potential candidates that would exclude practically any local person from consideration. These might include a certain length of service with a company in the relevant country, international experience within a certain industry or profession, or knowledge of a technology developed only outside Russia. We are not attempting to circumvent the law through such criteria but really are seeking the best professionals, and our non-Russian candidates really do meet these requirements.

There are other effective ways to stop the authorities separating us from our carefully selected expat candidates. If we word the selection criteria carefully enough, the list indeed does become magic. By using the list’s job titles, we avoid the principal risk of the Russian migration procedure, which is the local immigration authorities’ refusal to approve an application for permission to hire foreigners by citing only one factor: “The federal quota for our region has expired!” In recent years we often received this response, and it felt as final as the click of a prison cell door closing. But for listed positions this will not happen, for the very simple reason that we do not need an immigration quota for them!

Another advantage for those employers that use the list is that they do not need to first apply for a yearly “corporate quota” by May of the preceding year, when it is still not clear if they actually need an expat in a given position for the next year. They may apply for work permits for listed positions that have no corporate quota at all, since they do not need any federal or local quota for these positions. We can see then that the 2010 list is a wholly different affair to the 2009 list.

Let us now look closer at the list to see what bright prospects it may offer. With its mere 22 positions, at first glance it does not look too impressive, let alone magic. Seventeen of them specify a “director”: general director of a JSC, of a business amalgamation, of an interbranch scientific and technical complex. However you interpret these positions, they could hardly enable us to hire many people. You cannot grant the title of director to too many professionals.

But bit by bit, as our eyes adjust to the half-light, we can start to distinguish subtleties. We see “director of representative office,” which was also on the 2009 list, “director of branch office” — excellent! No more discrimination against branch offices. The presence of “director of economics” on the 2010 list is a breakthrough to the future. Many highly qualified finance managers from the West who used to take quota-dependent “director of economics” positions in Russia — because the official Russian Index of Positions and Professions does not accept the positions of “finance manager” or “finance director” — may now relax. But the most promising entries of the 2010 list are the “chair” and “deputy chair” on the executive board. It is no secret that by statute in Russia, an executive board may be established at any company, whether joint stock or a limited liability; and the number of deputies for a chair on the board can be unlimited. Now imagine how many expat managers and professionals we may accommodate quota-free in the capacity of deputies responsible for a given area by setting up an executive board with Russian subsidiaries, which is very easy to do in comparison with obtaining a quota. So, the 2010 list really does bring changes for the better for foreign businesses, and fills us with hope for even better prospects in the future!