Foreign Work Permit Update

New Amendments to Foreign Work Permit Procedure in Ukraine

On July 5, 2013, the Cabinet of Ministers’ Resolution No. 437 regarding “Issuance, Prolongation of the Validity Term and Annulment of Permissions for the Use of Labor of Foreigners and Stateless Persons”, dated May 27, 2013 (the “Resolution”), came into force. The Resolution establishes the new list of documents required for obtaining work permits for foreign individuals hired for labor in Ukraine.

On the one hand, the Resolution has simplified the requirements for employers by reducing the amount of documents required from the side of the employer. Notably absent are the certificates from the tax and social insurance authorities, evidencing the lack of debts of the employer before such authorities, and the necessity to provide a draft employment agreement. Now the Employment Center will verify the absence of debts before the social insurance authorities during its review of the work permit application and the absence of any penalties for violating the Law “On Employment of the Population”. Moreover, once an employment agreement (contract) has been concluded between the employer and the foreign citizen, the employer must submit its certified copy to the Employment Center within three working days.

On the other hand, the Resolution placed new documentation burdens on the foreign employees by once again including the requirement to submit documents issued by a medical institution evidencing that the individual is not ill with chronic alcoholism, drug addiction or other infectious diseases. Some years ago this requirement was removed from the work permit application procedure, much to everyone’s relief. While there has been no official clarification by the Ministry of Health Protection of Ukraine as to the form and procedure for obtaining such document, this document can presumably be received in Ukraine by visiting several doctors at one medical institution. Nevertheless, this requirement raises practical questions as to (a) which medical institutions abroad will issue the required documents, and (b) what form will be acceptable for the Ukrainian authorities (besides the required certification by Apostille)?

According to the Resolution, the following categories of foreign citizens are required to obtain work permits before commencing work in specific labor positions in Ukraine:

1)         Foreign citizens hired for labor in Ukrainian legal entities on the basis of employment contracts (employees of Ukrainian legal entities). This category includes any foreign citizen directly hired by a Ukrainian legal entity, including Ukrainian legal entities wholly or partially owned by foreign legal entities or natural persons. Please note that the employer will be responsible for submitting the work permit application on behalf of the foreign citizen (“Category No. 1”);

2)         Foreign citizens sent by foreign business entities to Ukraine for the performance of a specific volume of work or the provision of services on the basis of agreements (contracts) concluded between Ukrainian and foreign business entities, provided that the number of qualified foreigners hired under such agreements (contracts) does not exceed half of the total number of persons hired for labor in the Ukrainian business entity. In this case, the Ukrainian business entity acts as a “host” for the foreign citizen and is responsible for applying for the work permit and complying with the rules for hosting foreigners in Ukraine (work and housing conditions, local registrations, etc.) (“Category No. 2”);

3)         Foreign citizens sent to Ukraine as “Intra-corporate transferees” according to Ukraine’s schedule of specific commitments under the WTO’s General Agreement on Trade in Services (“Category No. 3”);

While the first two categories are known as “classic” cases in Ukraine, the third category only appeared in May of 2009. Interestingly, the Resolution omitted the category of foreign citizens “who provide services without establishing commercial presence in Ukraine (direct provision of services)” according to Ukraine’s schedule of specific commitments under the WTO’s General Agreement on Trade in Services.

 

Today, foreign work permits are still issued by the State Center for Employment of the Ministry of Labor of Ukraine (the “Employment Center”). Please see attachment with a list of various documents to be submitted in order to apply for a work permit for the above categories:

As a rule, foreign work permits are routinely issued to employers in cases where: (i) there is an absence in Ukraine or a specific region of qualified laborers capable of performing the relevant type of work and (ii) there is sufficient reasons, explaining/documenting the practicality of hiring a foreign citizen, unless otherwise provided by an international agreement to which Ukraine is a signatory. With regard to the substantiation of the need to hire the foreign citizen, the Resolution sets out two new types of substantiation that are sufficient in specific cases:

1.         If the foreign citizen will be hired as a director, deputy director or in another managing position, a document evidencing that such foreign citizen is a founder or co-founder of the Ukrainian company will serve as sufficient basis to issue a work permit. In this case, certified copies of the Ukrainian company’s statutory documents should be submitted along with the work permit application.

2.         If the foreign citizen is the owner of copyrights or related rights, and is invited to Ukraine to work in order to exercise such rights, then notarized copies of the documents which identify the copyright objects and/or related rights and certify the ownership of the foreign citizen of such rights should be submitted along with the work permit application.

In all other cases, the work permit applicant is required to submit evidence based on the facts of each case. In this regard, the Resolution seems to allude to a stricter requirement for the substantiation to hire a foreign citizen: the Employment Center has the right to refuse to issue a work permit to a foreign citizen if the employer has advertised the required vacancy in the company and the employer refuses to hire a Ukrainian citizen sent by the Employment Center to fill that vacancy. It remains to be seen how strictly the Employment Center will apply this rule and whether the Employment Center will attempt to fill all vacancies advertised by companies that wish to hire foreign citizens.

The Resolution has decreased the Employment Center’s timeframe for issuing its decision to grant or extend a work permit from thirty to fifteen calendar days. The decision is executed in the form of an order and sent to the employer in writing no later than three (3) working days from the date of the final decision. The information will also be placed on the website of the local Employment Center where the foreign citizen will be hired. Preliminary information has been released that the work permit will likely be issued in the form of a plastic card as opposed to the old paper form.

Another novelty in the Resolution is that the employer has thirty (30) calendar days to transfer the state duty to the special bank account of the State Social Insurance Fund for Unemployment after a positive work permit decision has been made. In the past, the state duty should have been paid along with the work permit application and was non-refundable even if the work permit application was refused. According to unofficial information, the Resolution will removed the need to pay the state duty in the case of prolongation of work permits.

Payment must be confirmed by a payment receipt. In case the employer fails to make payment within thirty (30) calendar days, the decision to issue the work permit will be revoked. Once payment is confirmed, however, the local Employment Center will issue the work permit within ten (10) working days from the date of the relevant bank transfer.

Work permits are still issued for a term of up to one year and may be extended for the same term. However, in case of Category No. 3, work permits are issued for a maximum term of three years with the possibility of extension for an additional term of up to two years.

In case a foreign citizen fails to commence his or her employment within the term set forth in the labor agreement (contract) without substantiated grounds, the employer is obliged to inform either the local Employment Center or local immigration office about such situation within five (5) working days. The employer is also obliged to inform the local Employment Center regarding the premature termination or expiration of the labor agreement (contract) with the foreign citizen within three (3) working days of such event.

In summary, while the Resolution has already come into legal force, it is evident that the local authorities still don’t have a full grasp of the implications of the new rules for foreign employees who may not be able to comply with the new document requirements. Therefore, one can expect a period of uncertainty during this initial period before things start to return to normal after practical application of the new Resolution and the local authorities receive their internal instructions.

Attachment

The State Center for Employment of the Ministry of Labor of Ukraine (the “Employment Center”), requires the following documents to be submitted to apply for a work permit for Category No. 1:

From the resident employer-applicant

From the employee

An application in standard form;

Two 3.5 x 4.5 cm color photographs;

A statement certified by the employer to the effect that the foreign citizen’s proposed position is not connected with Ukrainian citizenship by law and does not require access to state secrets. This statement must be certified by the employer’s stamp and authorized signature. In case the employer has a specially appointed body for issues of state or commercial secrets, then the statement should also be signed by the head of this body;

A document issued by a medical treatment institution confirming that the foreign citizen is not ill with chronic alcoholism, substance abuse, narcotics abuse or other infectious disease, the list of which is issued by the Ministry of Health Protection of Ukraine (legalized or certified by Apostille and accompanied by certified translation into Ukrainian);

A certificate from the internal affairs body evidencing the absence or existence of convictions of the foreigner, who is present on the territory of Ukraine on the date the work permit is executed (“Ukrainian police clearance certificate”);

A certificate from the authorized body of the country of origin (or stay) evidencing that the foreign citizen, who is located outside of Ukraine during the consideration of the work permit application, is not serving a sentence for committing a crime and is not under criminal investigation (legalized or certified by Apostille and accompanied by certified translation into Ukrainian);

A copy of the document(s) evidencing the foreigner’s education (diploma) or qualifications (legalized or certified by Apostille and accompanied by certified translation into Ukrainian);

A copy of the identification page of the foreigner’s passport (with a certified translation thereof) and all pages with entry/exit stamps and visas.

The following documents must be submitted to apply for a work permit for Category No. 2:

From the resident employer-applicant

From the foreign citizen

1.

All documents listed above for Category No. 1;

All documents listed above for Category No. 1.

2.

A copy of the agreement (contract) on the basis of which the foreign citizen is sent to Ukraine to perform a specific volume of works or services.

 

 

The following documents must be submitted to apply for a work permit for Category No. 3:

From the resident employer-applicant

From the foreign citizen

1.

All documents listed above for Category No. 1;

All documents listed above for Category No. 1.

2.

The decision of the foreign company to transfer the foreign citizen for work in Ukraine;

 

3.

A copy of the contract of the foreign employee with the foreign company regarding work transfer to Ukraine with an indication of the term of work in Ukraine;

 

Frishberg & Partners is a full service, Kiev-based law firm, specializing in Ukrainian law since 1991 (for more information please see www.frishberg.com). If you have any questions, please contact This email address is being protected from spambots. You need JavaScript enabled to view it.

You should not rely upon this information for specific legal advice and should not act upon this information without independent legal counsel.

News

Frishberg & Partners 2012