In ab. 5 tbsp. 11 of the Labor Code of the Russian Federation states that on the territory of our country, all norms of the Labor Code of the Russian Federation and other regulations that contain provisions on labor law are subject to extension to legal relations involving not only Russian citizens, but also foreigners, persons without established citizenship, except in cases when otherwise established by an international agreement, any Federal Law or any clause of the Labor Code. This means that the dismissal of a foreigner at his own request is carried out according to general rules, but taking into account some nuances.
Labor law regulations for foreigners
When terminating an employment contract with a foreign worker and in other cases, the provisions of the following articles and laws apply:
- stat. 37 of the Constitution of the Russian Federation;
- special provisions on the work activity of foreigners specified in Chapter 50.1. Labor Code of the Russian Federation, as well as general provisions of the Labor Code that also apply to Russian individuals;
- stat. 13 – stat. 13.6. Federal Law No. 115 of July 25, 2002 “On the Legal...” (hereinafter referred to as Federal Law No. 115);
- international agreements concluded by the Russian Federation with other states (for example, Article 97 of the Treaty on the Eurasian Economic Union, signed in Astana on May 29, 2014).
Also, the labor activity of foreigners is regulated by collective agreements.
Is it necessary to notify the Federal Tax Service about the dismissal of a foreigner?
In accordance with current legislation, it is necessary to notify only the migration service at the location of the employing company about the termination of a contract with a foreign citizen. But there are times when the tax service also requires notification of the dismissal of a migrant. Currently, the law does not provide for a special form by which it is necessary to notify the Federal Tax Service about the termination of an employment relationship. Therefore, the employer is not obliged to submit such a document to the tax office. The only thing he must do is report to the Federal Tax Service on Form 6NDFL, in which he must indicate the employee’s status and his tax rate.
Peculiarities of employment of foreigners
Some features of accepting foreigners to work places:
- a legal entity has the right to enter into an agreement with a foreign worker only after the latter reaches 18 years of age;
- a citizen who comes from abroad can choose any type of activity or profession (Part 1 of Article 13 of Federal Law No. 115).
In addition, when hired, a foreign person, just like a Russian person, is issued a work book and is provided with exactly the same guarantees provided for by the statute. 64 Labor Code of the Russian Federation.
What payments are due?
In 2021, a foreign employee is entitled to the same cash payments as a Russian citizen:
- Salary for the last period worked
- Prizes and other incentives
- Various allowances provided for in the contract
- Compensation for all vacation days that were not used at the time of dismissal
All funds must be issued in cash or credited to the card account no later than the last business day. Along with the payment, a work book and other documents are issued.
Types of work permits
In our country, the Main Directorate for Migration Affairs of the Ministry of Internal Affairs issues the following types of permits as part of the relevant government service:
- for highly qualified experts;
- for persons who came to work at a subsidiary located on the territory of the Russian Federation, but belonging to a foreign organization;
- for foreigners who arrived in the Russian Federation for full-time study in educational institutions.
In addition, permits are intended for foreigners who arrived on a visa-free basis and for those who entered the Russian Federation under a visa regime.
Dismissal of foreigners: legal norms
The dismissal of a foreign citizen can be carried out both for all the reasons for which Russian citizens are dismissed, and for additional ones provided exclusively for foreigners.
There are rules regarding the dismissal of foreign workers that provide some benefits. For example, after dismissal, a highly qualified specialist can find another job within 30 days. Otherwise, his work permit will be canceled (Part 11, Statute 13.2. Federal Law No. 115).
Common reasons for termination of a contract
According to stat. 77 of the Labor Code, termination of an employment contract with a foreign citizen can occur:
- if you do not want to work due to a change in the ownership of the employing organization’s property;
- if you do not want to work at another job required in accordance with the medical report.
Also, one of the common grounds is refusal to work due to a significant change in the terms of the contract.
Expiration of the employment contract
In case of a fixed-term contract, its validity is subject to termination at the end of the period specified in it. If there are grounds specified in paragraph. 6 stat. 58 of the Labor Code of the Russian Federation, a fixed-term contract becomes indefinite.
Agreement between the parties to the employment contract
The parties may terminate the employment relationship by mutual agreement (stat. 78 of the Labor Code of the Russian Federation). In such cases, a written agreement is concluded in two copies, which indicates the specific period for cancellation of the contract and other conditions.
Due to the death of an employee
If the foreigner passes away, the contract is terminated on the basis of clause 6 of Art. 83 Labor Code of the Russian Federation. The same thing happens if there is a court decision declaring the employee missing or dead.
Whom should I notify in case of hiring and dismissal of a foreign citizen?
Enterprises that employ persons with foreign citizenship are required to notify the FMS about this. They must also report information about the dismissal of these citizens to supervisory authorities.
The migration service must be notified in writing on a special form, which should indicate:
- the name of the migration authority where the notification form is sent;
- status of the employing organization where the migrant worked (started working);
- basic details of the company;
- personal data of a foreign employee;
- the document on the basis of which the employee was hired;
- migrant's education;
- type of contract when hiring (employment contract or GPC contract);
- date of dismissal and reason;
- date of filling out the form;
- employer's signature.
A separate notice must be drawn up for each migrant worker, stamped and signed by the company management. The document is sent by mail or delivered in person to the migration service.
From April 20, 2018, notification of hiring and dismissal of a migrant must be filled out and submitted to the FMS from two sides: from the employer and the employee.
Dismissal at the initiative of the employer
An employer can fire foreigners on its own initiative. This is possible in the situations specified in stat. 81 Labor Code of the Russian Federation. For example, in the case where a foreign citizen regularly violates discipline.
For committing truancy
If a foreign citizen commits absenteeism, the employer can immediately dismiss him. Absenteeism is considered either a complete absence from work all day, or an absence for more than 4 hours in a row.
On vacation or sick leave
By virtue of the penultimate paragraph of Art. 81 of the Labor Code of the Russian Federation, it is impossible to terminate an employment contract at the request of the employer if the foreigner:
- is on sick leave;
- went on vacation.
But there is one exception - dismissal at the initiative of the employer is still possible in the event of liquidation of the company.
Part-time worker
The company may dismiss a part-time foreigner at will on the same grounds specified in Art. 81 Labor Code of the Russian Federation. But there is one more additional reason - they can cancel the employment contract with a part-time worker if they hire in his place a citizen for whom this work will be the main one (Article 288 of the Labor Code of the Russian Federation). The employer is obliged to notify the employee in this case 2 weeks in advance.
On probation
The employer has the right to dismiss a foreigner who is on a probationary period if he is not satisfied with the results of his work. In this case, the company notifies the employee 3 days before termination of the contract and indicates in the notification the reasons for this (clause 1 of Article 71 of the Labor Code of the Russian Federation).
Convicted to imprisonment
If a person has been sentenced to imprisonment (or forced labor) by a court verdict, then the contract will expire on the basis of clause 4 of Art. 83 Labor Code of the Russian Federation. With other types of punishment (court fine, correctional labor, etc.), termination of the contract does not occur, since these types of sanctions do not provide for isolation from society.
Employer's liability for untimely notice of dismissal
Violation of the requirements of migration legislation is fraught with serious consequences for employers, namely:
| Violation | Penalties | Regulatory document |
| Failure to notify or violation of the procedure (form) for notifying the territorial body of the Federal Migration Service upon termination of an employment contract with a foreigner | Citizens: 2000-5000 rubles Official: 35,000-50,000 rubles Legal entity: 400,000-800,000 rubles or administrative suspension of activities for a period of 14 to 90 days | Clause 3 of Article 18.15 of the Code of Administrative Offenses of the Russian Federation |
| For Moscow and St. Petersburg, Moscow and Leningrad regions: Citizens: 5000-7000 rubles Official: 35,000-70,000 rubles Legal entity: 400,000-1,000,000 rubles or administrative suspension of activities for a period of 14 to 90 days | Clause 4 of Article 18.15 of the Code of Administrative Offenses of the Russian Federation |
Special reasons for dismissing a foreigner
In addition to the cancellation of a residence permit, temporary residence permit, work permit or upon expiration of their validity, there is a list of other special reasons for dismissal. It is important for the employer to correctly formalize the procedure for terminating the contract in the presented situations.
How to fire a foreigner if he has left
Some individuals may simply leave for their home country and not inform the organization of the reasons for such action. Then the employer should either fire the employee for absenteeism in the general manner, or wait for the expiration of the temporary residence permit, residence permit, work permit, patent, then wait 1 month and issue a dismissal order (clause 13 of article 327.6 of the Labor Code of the Russian Federation).
Expiration of the work permit
The validity period of a work permit may expire, because this document is usually issued for 1 year. In this case, the instructions for the employer are as follows: first, he removes the foreigner from work (paragraph 3 of Article 327.5 of the Labor Code of the Russian Federation), then, after a month, if the permit has not been extended, the contract is terminated.
Failure to pay for a patent, patent delay
An employer can dismiss a foreigner if the patent has expired, on the grounds specified in paragraph 2 and paragraph 5 of Art. 327.6. Labor Code of the Russian Federation.
In case of non-payment of personal income tax in the form of a fixed advance payment, the patent ceases to be valid automatically from the 1st day of the next month (Part 5, Article 13.3. Federal Law No. 115). Accordingly, the employer makes an actual dismissal 1 month after this event.
Additional reasons
The rules and grounds for dismissing an employee are determined by Chapter 13 of the Labor Code of the Russian Federation - they are equally applicable to both Russians and foreigners. However, in the case of a foreigner, dismissal often occurs on additional grounds:
- The organization has exceeded the number of full-time foreigners
- The organization's permit to hire foreigners has expired
- The employee's work permit or patent has expired
- The employee’s VHI policy or other contract indicating the availability of health insurance has expired
It is worth considering that the organization is obliged to remove an employee from professional activities if the validity period of the following documents has come to an end:
- RVP or residence permit
- Work permit or patent
- VHI policy
If within one month the employee does not draw up new papers, the company must terminate the employment relationship with the foreigner.
Dismissal of foreign citizens at their own request: procedure, timing
The legislation provides for the dismissal of foreign workers at their own request in the same regime as for Russians. In particular, similar terms of service and rules for filing applications have been established.
Application for resignation: how to fill it out
To resign on his own initiative, a foreigner needs to submit an application. It should be filled out according to standard rules:
- “header”, which indicates the name of the organization, the full name of the director and the person leaving;
- in the center - the word “Statement”;
- further the main text - “I ask you to fire me at your own request DD. MM. YYYY, in accordance with Art. 80 Labor Code of the Russian Federation.”
At the end of the application it is necessary to put a signature and the date of preparation.
Application for resignation
Is there compulsory work?
Yes, it is provided. Its duration is standard - 2 weeks, except in some cases. For example, the working period is 3 days if a person decides to quit during the probationary period (Article 71 of the Labor Code of the Russian Federation) or before the end of the planned period of seasonal work (Article 296 of the Labor Code of the Russian Federation).
Preparing a dismissal order
The director of the organization must fill out the order using:
- or your own form;
- or the generally accepted T-8.
The worker must be familiarized with the order. At the request of a foreigner, a certified photocopy must be issued.
Entry in the work book and its issuance
On the day of leaving work, a work book with the corresponding entry is issued. The book can also be sent by mail if the worker gives consent (clause 6 of article 84.1 of the Labor Code). The book must be prepared for issue to the employer in compliance with all the requirements specified in Government Decree No. 225 of April 16, 2003.
Final settlement: payment terms
Final payment must be made on the day of leaving work. If this is not possible, then the employee must be paid for his work, compensation for unused vacation and severance pay no later than the day following the day on which the request for payment was received (paragraph 1 of Article 140 of the Labor Code of the Russian Federation).
Where to submit a notice of termination of a contract with a foreign citizen
The notification must be submitted to the territorial migration office. Previously, documents were submitted to the FMS office at the employer’s location.
In 2021, this government body was annexed to the Ministry of Internal Affairs. Now this structure is in charge of issues related to population migration, including from other countries.
You can send a notification in the following ways:
- Personally bringing him to the OMV at his location. The document must be properly registered. Only after it has been assigned an incoming number will it be considered that the authorized body has been notified on time;
- Using Russian Post. A notification letter must be sent. The letter must have a postage stamp. According to this stamp, it will be clear whether the employer met the deadline or not.
There is no possibility of submitting a notification through the official website of the Main Directorate for Migration of the Ministry of Internal Affairs of the Russian Federation.
Dismissal if there is a child under 3 years of age
There is a ban on the dismissal of a foreigner at the request of the employer (clause 4 of Article 261 of the Labor Code of the Russian Federation), if he is:
- a woman on maternity leave with a child under 3 years old;
- a man with a child under 3 years old in the absence of a mother;
- the sole breadwinner of a child under 3 years of age in a large family.
But there are exceptions. For example, they can be fired upon liquidation of the employer, for absenteeism, for loss of funds entrusted to the employee, etc.
Retirement due to disability
If a foreigner has been registered as a disabled person at the ITU institution, he is entitled to either an insurance or social disability pension. Leaving work is possible either at your own request (there will be no work), or under clause 5 of Art. 83 Labor Code of the Russian Federation. After the order is issued, the employer notifies the migration service of the dismissal of a foreign citizen in the standard manner.
Payment for forced absence in case of illegal dismissal of a foreign worker
In addition to the fact that the foreigner will be able to return to work, the employer will be obliged to pay him the average salary for the entire period of forced absence (paragraph 2 of Article 394 of the Labor Code of the Russian Federation). To recover, you need to contact the labor dispute commission or directly to the court (stat. 382 of the Labor Code of the Russian Federation).
Thus, the procedure for dismissing a foreign citizen at his own request is not much different from dismissing a Russian. There are only a few nuances that it is advisable to know about in advance so as not to get into an unpleasant situation.
