on the Possibility for an Alien to Enter the Russian Federation in Order to Take Care of the Child of Another Alien Working and Living in Russia with His Family.

      Subject to Part 2, Article 6 of the Federal Law On the Procedure for Exit from and Entry to the Russian Federation, a mandatory requirement to an aliens or stateless persons entry to Russia is a visa issued by a respective diplomatic representation or a consular establishment of RF outside Russia, or by a Department of Interior, or the Ministry of Foreign Affairs of RF, unless stipulated otherwise by an international treaty of the Russian Federation.

      Part 3, Article 6 of the above Federal Law stipulates that in case an alien or stateless person applies for permission to enter Russia in order to undertake employment, the Russian visa may be granted to such person only with approval of a federal executive migration authorities executed in a manner prescribed by the Government of RF.

      The Decree of the President of RF dated 16.12.1993, No. 2146 approved the Regulations of Recruitment and Use of Foreign Labor in Russia. The above Regulations define the terms and conditions on which the above approvals are granted for recruitment of foreign labor in RF and the aliens rights to undertake employment in Russia are verified.

      It follows from point 17 of the above Regulations that the information about the granted approvals forwarded to respective Russian diplomatic representations and consular establishments abroad is the ground for the aliens to receive an entry-exit visa entitling to undertake employment.

      Point 4 of the above Regulations stipulates that respective approvals may be granted to Russian legal entities, companies with foreign investments operating in Russia, as well as to Russian and foreign individuals and stateless persons living in Russia and using hired labor for personal needs. In compliance with point 8 of the Regulations the approvals are usually granted for a term of up to 1 year. After its expiration the validity of the approval may be extended for maximum 1 year against a motivated request of the employer.

      The above rule specified in point 4 of the Regulations and pertaining, in particular, to the possibility for an alien living in Russia to obtain an approval for employment of another alien for personal needs must be correlated with the rules of the Federal Law On the Procedure for Exit from and Entry to the Russian Federation which was adopted later than the above Decree of the President of RF and prevails over the latter.

      It follows from Article 25 of the above Federal Law that there are two grounds for legal implementation of an aliens or stateless persons entry to Russia: invitation by a Russian legal entity or individual, or a duly executed contract of tour. Point 2 of the Regulations of Legal Implementation of Invitation to RF of Aliens or Stateless Persons (approved by the Decree of the Government of RF on 01.10.1998, No. 1142) specifies that an invitation is the ground for consideration of the Russian visa issuance to aliens and stateless persons. At the same time, it follows from points 3-5 of the above Regulations that a respective invitation may be given only by a Russian legal entity or individual, i.e. the normative acts concerned do not entitle the aliens living in Russia to execute invitations to other aliens to enter the territory of Russia.

      Hence, the analysis of the law reveals that in accordance with the above Decree of the President of RF an alien working and living in Russia with his family is entitled to apply to a respective Russian public authority for approval to use a foreign hired labor for personal needs within the period of his living in Russia. But at the same time, both the above Federal Law and the Decree of the Government of RF adopted in pursuance of the former lack a clear legal mechanism which would make it possible to implement the rule of the Presidential Decree, i.e. these normative acts do not entitle an alien to invite another alien to Russia.

      With due regard for the above, it may be concluded that an aliens application to a Russian diplomatic representation or consular establishment for a visa to enter Russia in order to take care of another aliens child can be rejected on formal grounds, even if the alien concerned has a permission to undertake such employment.

      A possible option, in our opinion, would be to hire an alien babysitter through a respective Russian firm engaged in recruitment of aliens in Russia or a Russian firm providing babysitting services to its clients. It should be assumed that such option would require legal implementation of the relations between a respective Russian firm and the arriving alien babysitter. At the same time, it is exactly the Russian firm as a legal entity that would provide babysitting services to an alien family and, consequently, the payments must be made by the alien (consumer of services) in favor of the Russian firm. The alien babysitter would act as an employee of the Russian firm and receive wage from the Russian firm concerned.

Alexander E. Bessmertnykh,
Chief expert, associate lawyer