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THE EMBASSY OF THE REPUBLIC OF KAZAKHSTAN TO THE KINGDOM OF NORWAY

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The Rules of Attracting Foreign Labour Force in the Republic of Kazakhstan and Establishing Quotas

 

Ratified by the Governmental regulation 
of the Republic of Kazakhstan # 836 
dated June 19, 2001.

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1. General Provisions

1. The Rules of Attracting Foreign Labour force in the Republic of Kazakhstan and Establishing Quotas (the “Rules”) have been developed in accordance with Kazakh Law dated 23 January 2001 On Employment of the Population to establish a procedure for setting and allocating quotas, terms and procedure for granting employers permits to employ foreign labour force in Kazakhstan. 
2. Terms, used in these Rules:
1) Foreign labour force (foreign workers) mean foreign nationals and stateless persons, employed by employer to work on the territory of the Republic of Kazakhstan; 
2) Employer means a corporation or an individual, with whom employee entered into employment contract;
3) Permit to employ foreign labour force (hereinafter - the “permit”) means a document in a set form to be issued by the designated authority to the employer, which determines quantity of foreign labour force to be employed in Kazakhstan within the limits of quotas, allocated by the central governmental authority for the period of no more than one working year, except for the cases stipulated in paragraph 19 of the Rules (Annex 1). 
4) Quota to employ foreign labour force (hereinafter – “quota”) means a share of foreign labour force as a percentage of the number of active population of the country, set annually by the Kazakh government; 
5) Vacancy – vacant work place (position) of employee;
6) Central governmental authority means a governmental authority, designated to coordinate the government policy of employment; 
7) Designated authority means local executive body; 
8) Seasonal agricultural operations mean agricultural operations that due to natural and climatic conditions are carried out during certain period (season); 
3. These Rules do not apply to foreign nationals or stateless persons:
1) Working as chief executives of foreign corporations, their branches or resident offices; and 
2) Being on a business trip for less than 60 calendar days totally in one calendar year. 
3) Being seconded to a Kazakh legal entity, branches and representative offices of foreign legal entities for more than 60 calendar days in accordance with a contract.
It shall be allowed to second foreign nationals to a Kazakh legal entity, branches and representative offices of foreign legal entities for more than 60 calendar days according to the list, certified by the designated authority, pursuant to Annex 2, provided that the same number of Kazakh employees are seconded to a foreign corporation, which sends foreign specialists, for the purposes of professional training, re-training and improving qualifications by specific occupations (specialities) for the same period or that the same number of Kazakh citizens are sent for training to educational institutions in the country, where a foreign legal entity is based. The business trip should not last more than 180 calendar days. 
4) Working as chief executives of organizations that entered with the Kazakh government into contracts for investment worth over 50 million US Dollars, and as chief executives of the Kazakh legal entities, carrying out investing activities in priority sectors and that entered into contract with the designated authority responsible for investments;
5) Being employees of diplomatic missions and international institutions, workers of consulates, accredited in Kazakhstan;
6) Arriving to render charitable and humanitarian aid within the framework of international agreements of the Republic of Kazakhstan; 
7) Being representatives of the foreign media organizations, accredited in Kazakhstan; 
8) Being members of crews of sea and river vessels, airplanes, trains and motor vehicles, owned by foreign organizations;
9) Working as artists, producers, conductors, choirmasters, ballet-masters, tutors, sportsmen and coaches; 
10) Permanently residing in Kazakhstan; 
11) Enjoying the status of refugee or political asylum in Kazakhstan;
12) Studying full-time and at the same time working at the Kazakh educational institutions during spare time; 
13) Carrying out teaching activities at the Kazakh institutions of general secondary, primary professional, secondary professional and higher professional education, under international agreements on cooperation in the sphere of education, signed by Kazakhstan, but not more than 25 percent of the staff of the institution; 
14) Oralmans (repatriates);
15) Being specialists in developing a space rocket industry and operating the ground space infrastructure, employed under international agreements on cooperation in aerospace activities, signed by Kazakhstan.
16) Working in the regional financial centre of the city of Almaty as managers and professionals with secondary professional and higher education with confirmation documents in the order established by the legislation of the Republic of Kazakhstan.
The employer shall submit information to designated authority according to the form provided for in the Annex 3 when foreign nationals and stateless persons are employed in accordance with subparagraphs 1), 4), 8), 9), 12), 13) and 15) of the present paragraph.
A copy of a power of attorney to manage the branch, representative office issued by a foreign legal entity shall be submitted together with the above mentioned information when foreign nationals are employed as chief executives of branches and representative offices of foreign legal entities. 


2. Procedure for Setting Quotas

4. Based on the analysis of the domestic labour market and applications filed by employers by the 1st September, the designated authorities shall provide before the 1st October every year the central governmental authority with a document (Annex 4), substantiating employment by the employer in the upcoming year of foreign workers, in a form, set by the central governmental authority.
5. Interested state authorities can submit recommendations on establishing quota for foreign labour force to the central governmental body by the 1st October every year.
6. Based on proposals, made by the designated authorities and concerned governmental authorities, the central governmental authority shall submit draft regulations for setting quotas for the upcoming year to the Kazakh government before the 1st December every year. 
7. The central governmental authority within fifteen calendar days upon decision by the Kazakh government about quotas shall allocate them among regions, Astana City and Almaty City bearing in mind the situation in the labour market and the economic needs of the respective region, Astana City and Almaty City for labour force to develop operations, implement investment projects, including those involving foreign capital, and to use advanced foreign technology.
8. Based on the proposals made by employers, the designated authorities can submit a proposal to increase quota for the current year if the volume of work has increased or new projects opened to the central governmental authority. 
9. The central governmental authority on the basis of suggestions of interested state or designated bodies allocates the established quota between regions, cities Astana and Almaty in frame of quota established by Government of the Republic of Kazakhstan. 


3. Procedure for Granting Permits, Refusal to Grant Permit, Termination of Permit, Extending Validity of Permit, Revoking Permit

10. Permit to employ the following types of foreign workers shall be granted:
1) Category 1 – for employing chief executives with higher education and at least 5 years work experience on the executive positions in the respective industry; 
2) Category 2 – for employing managers and specialists, who meet qualification requirements set by the Qualifications Sourcebook of Positions of Executive, Specialists and Other Employees;
3) Category 3 – for employing skilled workers with respective professional education and work experience in accordance with Common Sourcebook of Tariffs and Qualifying Requirements for Occupations and Professions, tariff and qualifying characteristics of workers;
4) Category 4 - for employing seasonal agricultural workers under agreements on cooperation in labour migration and social security of labour migrants. 
11. The designated authority shall grant the permit if there are vacancies available and it is not possible to meet demand in labour force on account of vacancies available at the domestic labour market within quota distributed by the central governmental authority. 
To search for respective candidates at the internal labor market, the employer publishes announcement about available vacancies in national and local periodicals and the designated body considers proposals for vacant positions from national and regional databases. 
12. There shall be no search in the domestic labour market, if the following types of foreign workers are employed:
1) chief executives of the Kazakh legal entities, where foreign corporations and/or individuals own not less than 50% of shares; 
2) members of the boards of directors of the Kazakh joint-stock companies, where the government or foreign corporations or individuals own not less than 50% of shares; 
3) Teachers and science workers of higher educational institutions or scientific organizations; 
4) Foreign employees of organizations participating in the implementation of projects within the framework of the 30 Corporate Leaders of Kazakhstan Program;
5) Members of sea vessel crews;
6) Seasonal agricultural workers under agreements on cooperation in labour migration and social security of labour migrants.
13. The decision to issue work permit is made based on the criteria for evaluating qualifications of foreign workers to be employed. 
14. The designated body evaluates qualifications of foreign workers to be employed based on the analysis of documents submitted by employer.
15. By applying the criteria, a foreign worker to be employed shall be given the following points: 
1) Education:
- Academic degree or diploma of higher education to do a job the foreign worker wants to do: 25 points;
- Higher education: 20 points; 
- Technical and professional education: 15 points;
2) Length of service in specialty in the field of activity relevant to major activity of an organization: 
- 1 to 3 years: 15 points;
- 4 to 6 years: 20 points;
- 7 years and more: 25 points.
3) Demand (no demand) for a particular specialty (profession) in the labor market according to a list to be made annually by the central governmental authority based on proposals of local executive authorities: 
- There is a demand for the specialty: 25 points; and 
- There is no demand for the specialty: 15 points.
Subparagraph 3) of paragraph 25 shall not apply to foreign nationals employed by Category 1. 
16. Threshold value of points given during the course of evaluation of qualifications of a foreign national to be employed:
- Category 1 – 35 points;
- Category 2 – 55 points;
- Category 3 – 55 points.
17. Following the evaluation of qualifications a separate document on the foreign national to be employed shall be put together (Annex 5).
18. The evaluation of qualifications will not be done in respect of foreign workers employed as seasonal workers for agricultural works in accordance with agreement on cooperation in labour migration and social security of labour migrants.
19. Permit will be given for the period of labor contract when a foreign labor force is attracted as: 
Chief executives of the Kazakh legal entities, where foreign corporations and/or individuals own not less than 50% of shares;
Members of the boards of directors of the Kazakh joint-stock companies, where the government or foreign corporations or individuals own not less than 50% of shares; 
20. When granting the permit the designated authority shall oblige the employer, as preliminarily agreed with him/her in writing, to fulfill the following special terms and conditions according to Annex 6: 
1) Train or provide refresher training and skills improvement to the Kazakh nationals to do jobs, to do which foreign workers are being employed for or the jobs on demand at the labour market with subsequent replacement of foreign workers by the Kazakhstani workers;
2) Improve qualification of Kazakhstani citizens with subsequent replacement of foreign workers by the Kazakhstani workers;
3) Replace foreign workers by the Kazakhstani workers; 
4) Create additional jobs for the Kazakh nationals if the workload increases.
Special terms and conditions are applied with account of total number of foreign workers employed by an employer: 
Employers employing:
over 50 foreign workers should fulfill special terms and conditions stipulated in subparagraphs 1), 2) and 3) of paragraph 20 of the Rules;
from 10 to 50 foreign workers should fulfill special terms and conditions stipulated in subparagraphs 2) and 3) of paragraph 20 of the Rules;
less than 10 foreign workers should fulfill special terms and conditions stipulated in subparagraphs 2) of paragraph 20 of the Rules.
Special terms and conditions stipulated by subparagraph 4) of paragraph 20 of the Rules are applied when employer’s workload increases. 
This paragraph shall not apply to employers, employing the following types of foreign workers:
chief executives of the Kazakh legal entities, where foreign corporations and/or individuals own not less than 50% of shares;
members of the boards of directors of the Kazakh joint-stock companies, where the government or foreign corporations or individuals own not less than 50% of shares;
seasonal agricultural workers under agreements on cooperation in labour migration and social security of labour migrants;

21. To obtain permit to employ foreign labour force of Category 1 and 2, the employer or his authorized person shall provide to the designated authority in the area where foreign workers would work, an application in accordance with Annex 7 with the following documents indicated in the Annex 8 to the Rules. 
22. To obtain permit to employ foreign labour force by Category 3, the employer or his authorized person shall provide the designated authority in the area where foreign workers would work an application in accordance with the Annex 7 with the following documents indicated in the Annex 9 to the Rules.
23. To obtain permit to employ foreign labour force by Category 4, the employer or his authorized person shall provide the designated authority in the area where foreign workers would work, an application with information on foreign workers to be employed in accordance with Annex 7 by indicating: surname, name, patronymic name, date of birth, nationality, country of permanent residence, country of departure, speciality and education, occupations and positions in accordance with the Common Sourcebook of Tariffs and Qualifying Requirements for Occupations and Professions. 
24. Having reviewed the documents submitted by the employer, the designated authority shall make a decision to grant (refuse to grant) a permit, taking into recommendations of the Commission on Granting Permits to Employ Foreign Workers (hereinafter, the “Commission”), within twenty business days upon their submission. 
25. The Commission shall comprise representatives of the regional departments of the central governmental authority and the Ministry for the Interior of the Republic of Kazakhstan. 
26. Representatives of the employer shall be allowed to attend the Commission meetings. The designated authority must notify the employer about the date and timing of the Commission meeting, which will consider documents submitted by the employer, in writing
27. Designated authority informs the employer about the decision within five business days after it is made. 
After receiving the notice of the permit granted, the employer shall within 10 banking days submit to the designated authority documents, guaranteeing departure of foreign workers for the place of permanent residence when permits expire (copy of the contract between bank and employer, a document, confirming that a guarantee deposit has been entered in the employer’s bank account). 
If the decision was made not to issue a permit, the designated authority shall indicate the reasons for non-issuance in accordance with paragraph 35 of the Rules.
28. The designated authority shall consider Kazakh candidates for vacant positions with participation of a representative of employer, if there is a supply on the labor market. The designated authority decides on the timing and venue for the meeting and informs the employer and the respective candidate;
29. If the employer turns down the Kazakh candidates with relevant professional education and work experience, who apply to vacancies for skilled workers, due to their insufficient special knowledge and, skills, then the permit to employ foreign nationals shall be granted for a period, during which the Kazakh nationals, whose candidatures were turned down, or employees of the employer are trained, provided with refresher training and their skills are improved.
30. The designated authority will submit information on foreign workers to be employed by indicating surname, name, patronymic name, date of birth, nationality, country of permanent residence, country of departure, education, occupations (specialty) and positions to regional departments of the central governmental authority, the Kazakh Ministry of Internal Affairs and the Kazakh National Security Committee within five business days upon making a decision on issuance (prolongation) of a permit. 
31. The permit issued to an organization that participates in the implementation of projects within the 30 Corporate Leaders of Kazakhstan Program shall contain the name of the respective project. 
32. The permit granted by the designated authority shall be only valid on the territory of the respective region and it shall not be allowed to give it to any other employers except for the cases stipulated in paragraph 33 of the Rules. 
33. If the employers has works to do and needs to permanently use foreign workers in several regions and/or the cities of Astana and Almaty, the designated authority shall grant relevant permit to employ foreign workers in two or more regions and the cities of Astana and/or Almaty based on the employer’s application and upon agreement by the central governmental authority. 
34. If a labour contract with a foreign worker employed under Category 1, 2 or 3 is terminated until expiry of the permit’s validity, the employer may employ other foreign worker provided that he meets qualifying requirements set for this position (occupation) for the remaining period of permit validity according to the procedure established by the Rules. The documents stipulated by subparagraphs 1) - 3) of Appendices 8 and 9 to the Rules shall not be required.
35. The permit shall not be granted, if:
1) Documents, mentioned in the Rules, are not executed (submitted) fully and duly; 
2) Special terms and conditions of permits, granted in the preceding and current calendar years, and that have to be fulfilled, are not fulfilled (if any);
3) Allocated quota is exceeded;
4) Foreign national to be employed fails to meet required category and qualifications;
5) If points, given during the course of evaluation of qualifications of the foreign national are lower than the threshold values of points set under paragraph 26 of the Rules; 
6) If there is respective supply in the domestic labor market.
7) If other foreign nationals are employed by employer without permission. In this case, permit shall not be given during one business year from the day of establishing such a fact. 
36. If the employer does not agree with the decision made by the designated authority, he/she shall be allowed to challenge the decision made in accordance with the legislation. 
37. On application of the employer validity of the permit shall be extended by the designated authority within the limits of quotas, allocated among the respective region, cities of Astana and Almaty. 
Extention of the validity of the permits for Categories 1 and 2 shall be extended twice. Validity of the permits for Categories 3 and 4 shall not be extended. 
Validity of the permits granted to organizations participating in the implementation of the projects within the framework of the 30 Corporate Leaders of Kazakhstan Program shall be extended for the period of project implementation. 
38. In order to get the permits extended, the employer shall provide the designated authority not less than 20 business days before expiry of the permit with the following documents:
(1) application; 
(2) original permit; 
(3) a report on status of fulfilment of special terms and conditions of permits, granted in the preceding and current calendar years that have to be fulfilled by that time (if any); and 
(4) a document, substantiating extension of the validity of permits. 
39. Based on the submitted documents, the designated authority shall within ten business days upon submission of the documents decide about extending the validity of the permit, and shall inform the employer and the central governmental authority in writing about its decision within five business days stating causes, if the application is rejected. 
40. The validity of the permit shall not be extended if:
(1) Documents, mentioned in these Rules, are not executed fully and duly;
(2) Special terms and conditions of permits, granted in the preceding and current calendar years, and that have to be fulfilled by that time, are not fulfilled (if any);
3) There is a supply of relevant workers on the labour market established upon the results of consideration with participation of a representative of employer of Kazakh candidates for vacant positions. To consider relevant Kazakh candidates, the designated authority shall set the timing and venue for the meeting and inform about that the employer and Kazakh candidate; 
4) The validity of permits has expired. 
41. Documents, submitted by the employer to get the validity of the permit extended after the validity of the permit expires, shall not be accepted by the designated authority for consideration. 
42. The designated authority shall be entitled to revoke the permit for the period of up to three months by notifying the employer and stating the causes in writing. 
43. The permit shall be suspended if the employer fails to submit documents guaranteeing departure of foreign workers for the place of permanent residence when the permits expire (copy of a contract between the bank and the employer, a document, confirming that a guarantee deposit has been entered in the employer’s bank account) to the designated authority according to the deadline set out in paragraph 27 of the Rules; 
44. The validity of the suspended permit will be resumed at the decision of the designated authority once violations are rectified, which is reported to the employer in writing within ten working days upon the decision on resumption.
45. The designated authority shall be entitled to revoke the permit notifying the employer in writing and stating the causes indicated in paragraph 46 at least one month in advance.
46. The designated authority shall revoke the permit, if:
1) The employer fails to rectify violations for which the designated authority has suspended the permit. 
2) The employer fails to fulfill special terms and conditions for permits issuance stipulated by the Rules.
3) A foreign worker is employed to hold a position (profession or specialty) different from a position (profession or specialty), stated in the permit.
47. The employer shall return the permit to the designated authority within 5 working days upon receipt of notification on revoking the permit. 


4. Final provisions 

48. The designated authority shall once a month produce for the central governmental authority a report on the number of employed foreign workers and the status of fulfilment by the employer of special terms and conditions in a form to be set by the central governmental authority.