New Work Permit Rules: Step Forward Or Step Back?

Work Permit Rules have been under discussion for a long time, and their publication on October 6 in the electronic data base was not a surprise. However, what was a surprise is that apparently they were adopted by the Order of the acting RK Minister of Healthcare and Social Protection No. 559 on 27 June 2016. It is not clear why the Rules have remained unpublished for so long. We can only guess that the reason could be the fact that the recent legislative change shifting authority to adopt such rules from the Government to the Ministry will enter into force only on 1 January 2017. It is yet to be seen how exactly the authorities will justify this discrepancy.

The new work permit rules1 (New Work Permit Rules) will become effective starting from 1 January 2017.

The New Work Permit Rules envisage two types of work permits to be issued to employers:

Work permit for attracting foreign labor force (i.e. so-called 'general regime'); and Work permit for employment under "inter-corporate transfer." Self-employment of foreign nationals will be regulated by separate rules.

Major features of the New Work Permit Rules

1. Unlike the currently effective rules, the New Work Permit Rules do not contain a list of exemptions. Such list is provided by the law2 which will provide for a substantially revised list of exemptions (New List of Exemptions), compared to the one provided under the currently effective rules. For instance, and most importantly, the New List of Exemptions will not include, inter alia, heads of branches and representative offices of foreign legal entities.

   Since the New Work Permit Rules do not envisage a transition period, it is not clear whether currently employed heads of branches and representative offices of foreign legal entities who are not nationals of Kazakhstan and the Eurasian Economic Union should receive work permits immediately once the New Work Permit Rules will come into effect.

2. Ratio of local personnel3 against foreign personnel as provided under the currently effective rules will remain the same. In particular, the following ratio will apply:

   Ratio applicable to foreign employees attracted under 'general regime' is 70% of local personnel for the 1st and the 2nd categories, and 90% for the 3rd and the 4th categories. In case of inter-corporate transfer, foreign managers and specialists may not exceed 50% of the local personnel of the same level. In other words, the New Work Permit Rules do not require hiring more local...