A new version of Law No. 225-Z of the Republic of Belarus of 30 December 2010 “On Foreign Labor Migration” (the “Law on Foreign Labor Migration”) entered into force on 1 July 2023. Some of the changes affect the procedure for obtaining and canceling a special work permit (“work permit”).
In addition, Decree No. 102 of the Ministry of Internal Affairs of 19 May 2023, which approves new rules governing the administrative procedure for obtaining a work permit (the “Rules”), was published on 5 July 2023 and entered into force on 1 July 2023.
Let’s go over the main steps that an employer must take to obtain a work permit in view of the provisions that took effect on 1 July 2023 as well as other changes affecting work permits.
A work permit is a document verifying that a foreign worker is entitled to work under an employment contract concluded with an employer in Belarus. For these purposes, a foreign worker is a foreign national or stateless person who does not have a permanent residence permit in Belarus (a “foreigner”).
As a general rule, foreigners may work in Belarus only if an employer obtains a work permit for them and enters into an employment contract.
The process of obtaining a work permit can be divided into two stages:
► Application and issuance
Let’s take a closer look at each of these stages.
Stage 1: Preparation
1) Provide information on vacancies to the appropriate labor, employment and social protection authority (the “employment authority”)
The law requires employers to notify the employment authority in writing of vacancies within five days after they become available (“vacancy information”). Vacancy information must be submitted in the standard form, indicating the positions, qualifications, compensation, additional requirements, etc.
When submitting vacancy information, employers should keep the following in mind:
► An application for a work permit must contain similar job requirements
► A foreigner to be hired must meet the indicated requirements, including education and qualifications
► The employment authority may propose qualified job candidates (citizens of Belarus, foreign nationals and stateless persons permanently residing in the Republic of Belarus). An employer may decline to hire such candidates, but the authority may deny a work permit if more than three candidates are declined for a vacancy.
The employment authority posts vacancies in the Republican Job Bank on the web portal of the state employment service (https://gsz.gov.by/).
2) Determine whether a specific foreigner needs a work permit
Foreigners do not need permits in certain cases specified by Belarusian law in:
► The Law on Foreign Labor Migration
Certain categories of foreigners – including, for example, the heads of foreign representative offices – do not need a work permit in Belarus.
The list of categories was updated on 1 July. For example, there is a new list of white collar and blue collar jobs that may be filled by foreigners without consideration for protecting the national labor market (the “List”). Foreigners may thus be hired for the listed jobs without a work permit. The current List includes such jobs as veterinarian, medical specialist (all medical specializations), engineer, etc.
The Ministry of Labor and Social Protection will update the List by 1 February of each year.
► Other legislative acts and international agreements of the Republic of Belarus
For example, residents under certain special legal regimes (e.g., the High-Tech Park, the Sino-Belarusian Great Stone Industrial Park, etc.) may enter into employment contracts with citizens of EAEU member states without obtaining work permits for them.
Although work permits are not required for these categories of foreigners, an employer nonetheless assumes certain obligations in connection with the hiring and termination of foreigners and the renewal of their employment contracts. An employer must notify the appropriate citizenship and migration office, using the standard form:
● Within three business days after an employment contract with a foreigner is concluded (renewed)
● Within three business days after an employment contract with a foreigner is terminated
If a work permit is required in order to hire a foreigner, we proceed to Step 3.
3) Preparation of documents required in order to apply for a work permit
The following must be submitted along with a work permit application:
► A copy of the foreigner’s passport or a document replacing it along with a translation into Russian or Belarusian
► A document verifying payment of state duty
Previously, a work permit application also had to be accompanied by copies of documents verifying the foreigner’s education and length of employment in the field of specialization. Under the new Rules, these documents are no longer required.
Stage 2: Application and Issuance
1) The employer submits an application along with the required documents to the appropriate citizenship and migration office. The application form is established by the Rules. Information in the application must match the vacancy information posted in the Job Bank.
2) As a general rule, the citizenship and migration office requests that the employment authority issue a conclusion on whether a foreigner can perform work in the Republic of Belarus (the “Conclusion”).
A negative Conclusion constitutes grounds for denying a work permit. The employment authority will issue a negative Conclusion in the following cases, among others:
► The employer has not provided the employment authority with vacancy information on the job for which a foreigner is to be hired
► Vacancy information has been posted in the Job Bank for less than 15 business days (less than 7 business days in the case of an employer that is an investor) when a request is received from the citizenship and migration office
► The employer has three or more times declined to hire persons proposed by the employment authority for the vacancy to be filled by a foreigner
Under the law, the citizenship and migration office will not request a conclusion in certain cases, such as when a foreigner is hired as the head of a commercial organization, provided that the following criteria are met simultaneously:
► Such foreigner participated in founding the organization (as an owner of assets, founder or participant)
► Such foreigner has professional skills and knowledge as confirmed by documents verifying his/her education and at least two years of work in the field
► The monthly salary indicated in the employment contract is more than five times the minimum monthly salary established by the Republic of Belarus (BYN 554 as of 10 July 2023)
3) Based on the conclusion or without one (in the case of the aforementioned exception), the citizenship and migration office issues a work permit to the employer (or denies a work permit) within 10 calendar days after receiving the employer’s application.
Steps after obtaining a work permit
► Conclude an employment contract and notify the authorities accordingly
After obtaining a work permit, the employer must conclude a fixed-term employment contract with the foreigner and include not only the general terms set forth in the Belarus Labor Code, but also special terms stipulated in the Law on Foreign Labor Migration. Effective 1 July, the Law on Foreign Labor Migration explicitly states that an employment contract concluded with a foreigner must be a fixed-term contract.
The law previously required an employer to submit an employment contract for registration to the citizenship and migration office. From 1 July 2023, an employer is not required to register an employment contract.
Instead, the employer has a new obligation: to notify the appropriate citizenship and migration office within three business days after concluding an employment contract with a foreigner.
► Apply for an extension when a work permit expires
A work permit is issued for one year; the period for highly qualified employees is two years. At the employer’s request, a work permit may be extended once for a period of one year. If the employer and foreigner wish to maintain their employment relations after such an extension expires, the employer must apply for a new work permit.
In our opinion, a new employment contract must be concluded with a foreigner both when extending a work permit and when obtaining a new one. The citizenship and migration office must be notified within three business days after such a contract is signed.
Other changes affecting work permits that took effect on 1 July 2023
1) Changes have been made in the list of cases in which a work permit may be denied.
The clause allowing a foreigner that does not have a permanent residence permit in Belarus to be denied a work permit if he/she is a citizen (subject) of a state regarded as unfavorable for migration purposes has been eliminated.
2) The list of cases in which a work permit may be canceled has been expanded to include the following:
► A foreigner has not worked for six months, including at the declared place of work
► A foreigner fails to conclude an employment contract within six months after a work permit is obtained
Term of work permits issued before 1 July 2023
Work permits issued before 1 July 2023 will remain valid throughout the period for which they were issued.
However, work permits obtained for foreigners who do not need a work permit from 1 July 2023 will expire on that date, and the employer must, by 1 August 2023:
► Return the work permits to the appropriate citizenship and migration office
► Notify the citizenship and migration office of employment contracts with such foreigners that had not expired as of 1 July 2023