TURKEY: Stricter Employer Qualifications to Sponsor Work Permits.
Historically, obtaining work permits in Turkey meant adjudication periods of three to nine months, requests for documents without explanation, and a lack of transparency of requirements by the Work Permit Directorate (Directorate). In 2010 the Turkish government made a bold effort to change the work permit regime. In the same year it also chose to enact employer qualifications for the entity that wished to sponsor a work permit. This was a relatively new concept in Turkey. Since implementation, the Directorate has attempted to create exemptions.
On July 29, 2010, the Directorate published a communique that requires an employer to have at least five Turkish citizen employees per registered worksite per foreign applicant as evidenced on payroll records (termed 5:1 ratio). The communique also requires that the employer’s paid in capital must be at least 100,000 Turkish Lira (TL). Alternatively, the employer can show either gross (assumedly annual) sales amounting to 800,000 TL annually or exports with a gross annual value of USD $250,000. The current exchange rate is 1.8 TL to 1 USD.
The 5:1 ratio has been particularly burdensome to employers. This is partially because the ratio must be evident at each worksite. Therefore, work permit applications will be denied if they do not evidence a 5:1 ratio of Turks to foreigners at the worksite selected for the foreigner (the worksite location is normally specified on social security records). Soon after the publication of the employer criteria, the Directorate was confronted with many employers who could no longer sponsor foreigners. In an attempt to ameliorate the impact of the 5:1 ratio requirement, the Directorate published the following exemptions on April 25, 2011:
- Founder/investor of a newly established legal entity: If such a founder/investor owns at least 20% (but amounting to at least 40,000 TL) worth of shares of the entity, and within 6 months, the five employee criteria can be met, the founder/investor is exempt.
- Technical specialists: If there is evidence the position that is the subject of the work permit application requires advanced technology and a Turkish national specialist cannot be found, both the 5:1 employee ratio and the capital requirement will not apply.
- For companies that satisfy the foreign direct Investment requirements, the 5:1 ratio will be applied by taking into consideration every employee of all the company’s worksites in Turkey. Also, if the foreign employee is a “key personnel” under this law, the Directorate may not count him or her in the 5:1 ratio.
- Government involvement: When the foreigner will work on a product or service procurement for public institutions or is pursuant to a public tender, or when the work permit application is subject to a bilateral or multilateral agreement to which Turkey is a party, both the 5:1 ratio and capital requirement will not apply.
The Work Permit Directorate has not yet published guidance on the evidence to be presented to qualify for these exemptions. Although these exemptions have been published and available for over a year, the exemptions are not sufficient to meet the legitimate business needs of companies.
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