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Author Topic: Directive on the Employment of Foreign Personnel in Foreign Direct Investments  (Read 5972 times)

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Directive on the Employment of Foreign Personnel in Foreign Direct Investments

(From the Ministry of Labor and Social Security:)

PART ONE
Purpose, Scope, Justification and Definitions

Purpose

Article 1. The purpose of this Directive is to designate the procedures and principles relating to the work permits of foreign personnel to be employed in the companies, branch offices and liaison offices operating within the scope of Foreign Direct Investment Law No: 4875, in line with the stipulations of Law No: 4817 on Work Permits of Foreigners.

Scope

Article 2. This Directive will be in effect for key personnel under foreign citizenship to be employed in foreign direct investments and liaison offices with exceptional features.

However work permits of;

a) Any foreign personnel except those of key nature employed in foreign direct investments with exceptional features, and
b) Any foreign personnel to be employed in foreign direct investments except those having particular features,

will be subject to the provisions of Law No: 4817 and the Implementation Directive on Work Permits of Foreigners.

Justification

Article 3. This Directive has been prepared in accordance with Article 23 of Law No: 4817 on Work Permits of Foreigners and Article 3, Paragraph (g) of Foreign Direct Investment Law No: 4875.

Definitions

Article 4. For the implementation purposes of this Directive;

“Ministry” denotes the Ministry of Labor and Social Security.

“Foreign Direct Investment Having Particular Features” denotes; company or branch office within the scope of Foreign Direct Investment Law No: 4875 and fulfilling at least one of the below specified conditions:

a) The turnover of the previous year of the company or the branch office is at least TRL 30 trillion, provided that the total shares owned by foreign shareholders is at least TRL 400 billion,
b) The amount of exports realized by the company or the branch office during the previous year is at least USD 1 million, provided that the total shares owned by foreign shareholders is at least TRL 400 billion,
c) At least 250 personnel that are registered at the Social Security Authority have been employed by the company or the branch office during the previous year, provided that the total shares owned by foreign shareholders is at least TRL 400 billion,
d) In the event that the company or the branch office is yet to make investments, the projected fixed investment amount is at least TRL 10 trillion,
e) The company has at least one foreign direct investment besides the country its head office is located.

“Key Personnel” denotes the employees employed by the company established in Turkey as a legal entity having at least one of the following features;

a) Person who holds a position as; company shareholder, Board chairman, Board member, general manager, assistant general manager, company manager, assistant company manager or a similar position, who is carrying out at least one of the following duties:
1. Employed at top management or executive position of the company,
2. Direct the whole or a part of the company,
3. Audit or control the works of company auditors, administrative or technical staff of the company,
4. Recruit personnel to the company or to dismiss the existing personnel or to make proposals on these issues,

b) Person who has expertise of fundamental nature on the services, research equipment, techniques or administration of the company,

c) Regarding liaison offices, maximum one person to be equipped with a power of attorney issued by the main company abroad.

PART TWO
Special Procedures and Principles in Granting Work Permits

Employment of Key Personnel in Foreign Direct Investments with Exceptional Features

Article 5. Work Permits of key personnel to be employed in foreign direct investments of exceptional features will be granted by the Ministry.

Employment at liaison offices

Article 6. For liaison offices operating within the scope of Law No: 4875, work permits will be granted by the Ministry for maximum one duly authorized person, provided that USD 200.000.- at least have been transferred from abroad for the activities of the subject liaison office during the previous year.

Application for Work Permits Abroad

Article 7. Foreigners carrying key personnel status to be employed in foreign direct investments with exceptional features, may file their applications for work permits at the representations of the Turkish Republic in the countries they are citizens of or in the countries they reside.

The representations will convey these applications directly to the Ministry, together with their considerations if any, concerning the work permit.
Communication between the representations and the Ministry concerning work permit transactions will conducted by e-mail. The documents to accompany the application have to be submitted to the Ministry by the employer of the foreigner, within three days following the date of application latest.

Application for Work Permits within Turkey

Article 8. Foreigners carrying key personnel status to be employed in foreign direct investments with exceptional features, as well as their employers may file the work permit applications directly to the Ministry, in case the subject foreigner is residing in Turkey under legal status,

Obtaining Work Visa

Article 9. Key personnel having received work permit for being employed in foreign direct investments with exceptional features are required to apply to the representations of the Turkish Republic abroad for work visa within ninety days following the date of their receipt of the work permit and apply to the Ministry of the Interior for a residence permit within thirty days following their entry to Turkey.

Key personnel who had previously received a residence permit - with the exception of residence permits given for education in Turkey– with minimum six months period, for any reason, and have been granted a work permit within this period, are not required to obtain a work visa from the representations of the Turkish Republic abroad.

Documents to Accompany Application

Article 10. The following documents have to accompany the work permit applications of key personnel to be employed in foreign direct investments with exceptional features:

a) Information and documents certifying that the company or the branch office carries “the features of an exceptional foreign direct investment”:

1. Documents certifying that the total shares owned by foreign shareholders is at least TRL 400 billion (documents such as company endorsed book records, company endorsed balance sheet, xerox copy of Trade Registry Gazette),
2. Documents certifying that the exports realized by the company or the branch office during the previous year has been at least USD 1 million (documents such as bank receipt certifying the export amount, bank letter, xerox copy of foreign currency buying note, company endorsed income statement),
3. Documents certifying that the turnover of the company or the branch office for the previous year has been minimum TRL 30 trillion (documents such as company endorsed income statement),
4. In case the company or the branch office has employed at least 250 personnel registered to the Social Security Authority (SSK) during the previous year, documents certifying the case such as SSK lists.
5. In case the company or the branch office is yet to make investments, documents certifying that the projected fixed investment amount is at least TRL 10 trillion, such as Investment Incentive Certificate, Tourism Incentive Certificate,
6. Certificate of Activity or Activity Report or letter from the officially authorized organizations of the related country certifying that the company has at least one foreign direct investment besides the country its head office is located at, and letter of assignment certifying that the subject key personnel have been assigned by the main company headquartered abroad.

b) Information and documents certifying that the foreign personnel are at key status:

1. For personnel subject to key personnel status described in Article 4, paragraph (a), documents such as xerox copy of circular of authorized signatures, xerox copy of the Trade Registry Gazette, xerox copy of resolution of Board of Directors or Board of Shareholders,
2. For personnel subject to key personnel status described in Article 4, paragraph (b), reference letter and its translation, copy of the diploma and its translation, and other information and documents on the line of work the subject personnel will be employed and their translations (e.g.: for export personnel, documents such as bank endorsed bank receipt certifying exports on country basis, bank letter, xerox copy of foreign currency buying note, company endorsed income statement),

c) For liaison offices, documents certifying that at least USD 200.000.- or its equivalent in foreign currency have been transferred from abroad for the activities (documents such as power of attorney issued to name of the person authorized for the office, bank receipt certifying the money transfer, bank letter, xerox copy of foreign currency buying note),

d) Duly filled Foreign Personnel Declaration Form (in 4 copies), which is an enclosure of the Implementation Directive for the Law on Work Permits of Foreigners, carrying the employer’s stamp and signature and photograph of the foreign personnel,

e) In case the Foreign Personnel Declaration Form holds the signatures of neither the employer nor the foreign personnel; individual job contract entered by the parties or an employment document certifying the employee’s acceptance of the job proposal made by the employer or its certified copy,

f) Copy of the foreign personnel’s passport, not having elapsed its date of expiry, certified by a Turkish Consulate or a notary and its translation,

g) Resume of the subject foreign personnel in accordance with the “Format Resume” enclosed in the Implementation Directive for the Law on Work Permits of Foreigners,

h) Work permit petition to be issued by the employer.

Applications for Extension of Work Permits

Article 11. Extension applications for work permits of key personnel to be employed in foreign direct investments with exceptional features have to be made to the Ministry by the foreign personnel or his/her employee, by submitting the previous permit in addition to the documents designated in Article 10, paragraphs (c), (d), (e), (f) and (h) of this Directive.

Application to extend a work permit has to be made fifteen days before its date of expiry latest. Extension applications made after this time limit will be considered as initial applications by the Ministry.

Extension applications for work permits may as well be made earlier, provided that they are filed within the two-months ahead of the expiry date of the said work permit earliest.

In case a work permit is extended; the date of initiation of the extended work permit is the date of expiry of the expired work permit.

Evaluation Periods of Work Permits

Article 12. The Ministry finalizes the applications for work permits and extensions thereof made for key personnel to be employed in foreign direct investments with exceptional features and liaison offices within the scope of Article 6 of this Directive within fifteen days following the date of application to the Ministry latest, provided that the related documents are proper and complete.

In case it becomes evident that the application is short of any document, the Ministry notifies the applicant and requests the fulfilment of the missing document. In such a case, the fifteen-days evaluation period starts on the date the missing documents reaches the Ministry.

For applications made abroad, the fifteen-days evaluation period starts on the date all the documents reach the Ministry.

Applications made for key personnel to be employed in occupational training jobs in foreign direct investments with exceptional features, the fifteen-days evaluation period designated in the first paragraph above will not be in effect.

Non-execution of the Public Announcement Period 

Article 13. Article 14, paragraph (b) of Law No: 4817 will not be in effect for key foreign personnel to be employed in foreign direct investments with exceptional features.

Employment in a Job outside Occupational Education/Training

Article 14.Considerations of related authorities will not be asked for, on the occupational competence of key personnel to be employed in jobs outside their occupational education/training in foreign direct investments with exceptional features.
These persons are not subject to procedures on occupational requirements and competence and license requirements and competence stipulated in the Implementation Directive for the Law on Work Permits of Foreigners.

PART THREE
Miscellaneous Provisions

Refusal of Work Permit Applications

Article 15. While evaluating the work permit and extension applications for foreign personnel within the scope of Article 2, paragraph 2, sub-paragraphs (a) and (b) of this Directive, the Ministry takes the restrictive provisions of Law No: 4817 into consideration.

The accomplishment of an investment within Law No: 4875 does not necessarily require the granting of work permit to foreign personnel – including company shareholders.

Notification of Statistical Data

Article 16. Aiming at establishing and developing an information system regarding foreign direct investments, the Ministry notifies the statistical data concerning foreign personnel to the Undersecretariat of Treasury – General Directorate of Foreign Investments every three months.

Updating of Figures

Article 17. Values stipulated in Turkish Lira for the designation of foreign direct investment having particular features will be raised each year by the reevaluation index to be proclaimed by the Ministry of Finance.

Cases not Stipulated by the Directive

Article 18. In cases not stipulated by this Directive, provisions of Law on Work Permits of Foreigners and Implementation Directive for the Law on Work Permits of Foreigners will be in effect.

Effectiveness

Article 19.This Directive will come into effect on 6 September 2003

Enforcement

Article 20. The provisions of this Directive will be enforced by the Ministry of Labor and Social Security.

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