New Ukrainian Immigration Rules

Ukrainian immigration legislation (and practice) have always been a source of confusion and frustration among the foreigners.  For many years a near complete lack of enforcement helped to alleviate many of the problems, which foreigner visitors are starting to encounter in recent months.  Today, Ukraine is closer to Europe than ever before, and for the first time since 1991, Ukrainian customs officials are beginning to strictly enforce the applicable legislation by limiting the number of foreign citizens who are allowed to enter Ukraine for periods longer than 90 days.

 

At the same time, the news is not all bad: in September of 2017, changes to several laws, including the Law “On Employment of the Population” and “The Legal Status of Foreigners and Stateless Persons”, among others, will expand the list of foreigners who can receive work permits and temporary residency permits.  One of the key categories of foreigners who can obtain work permits in Ukraine will be those who are registered as private entrepreneurs that hire employees.

The Law “On Employment of the Population” provides six new categories of foreigners affected by the above-mentioned changes.  Moreover, work permits will now be issued for a longer term for certain categories, providing them the opportunity to apply for 3-year work permits.  The table below lists the categories of foreigners who require work permits and the maximum term of such work permits.

No.

Category

Work Permit Term

1.

High-paid professional foreigners (foreigners with a salary that equals at least 50 minimum monthly salaries – currently 3,200 x 50 = 160,000 UAH).

For the term of the labor agreement (contract), but no more than 3 years.

2.

Foreign investors (founders and/or participants and/or beneficiaries (controllers) of legal entities created in Ukraine.

3.

University graduates from schools within the top 100 of globally rated universities set forth in the list issued by the Cabinet of Ministers of Ukraine.

4.

Foreign employees in creative professions (foreigners who occupy positions which call for the creation of copyright and/or related rights objects as their principal duty).

5.

Foreign IT specialists (foreigners who occupy positions connected with the development and implementation of computer programming (operational systems, computer programs and their components, websites, online services) and cryptographic means of protecting information in legal entities carrying out computer programming as their principal type of business (under the National Classifier of Types of Economic Activity)

6.

Foreign employees on business trips (foreigners sent by foreign employers to Ukraine for the performance of a specific volume of works (services) on the basis of agreements (contracts) concluded between Ukrainian and foreign business entities)

For the term of the agreement (contract), but no more than 3 years.

7.

Intra-corporate transferees (foreigners recognized as such according to Ukraine’s schedule of specific commitments under the WTO’s General Agreement on Trade in Services)

For the term of the decision of the foreign business entity regarding the transfer of a foreigner for work in Ukraine and the contract concluded between the foreigner and the foreign business entity on transfer for work in Ukraine.

8.

All other hired foreign workers (foreigners working under labor agreements (contracts) in Ukrainian business entities)

For the term of validity of the labor agreement (contract), but no more than one year.

Work permits can be prolonged an unlimited number of times, provided the legal grounds for their issuance remain valid.

The recent changes also introduce a salary floor for work permits issued to foreigners as follows:

  • no less than 5 minimum monthly salaries (currently 16,000 UAH) – foreigners hired for work in non-governmental organizations, charitable organizations and educational institutions set forth in Articles 34, 36, 37, 39, 41, 43 and 48 of the Law “On Education”;
  • no less than 10 minimum monthly salaries (currently 32,000 UAH) – for all other categories of hired workers.

Please note that the above rates do not apply to work permits received in categories 1-5 of the above table.  Of course, for high-paid professionals the minimum salary of 50 minimum monthly salaries (currently 160,000 UAH) will still apply.  These new rates will only apply to the salaries of foreigners who receive work permits after September 27, 2017.

The Law “On Employment of the Population” now sets forth the rules for issuing work permits to foreigners who concurrently work in other jobs.  A foreigner may work in different positions with one or more employers, provided that the foreigner receives a work permit for each position.  High-paid professionals may work without an additional work permit in concurrent positions if the validity of his/her concurrent (secondary) labor agreement does not exceed the validity of his/her principal labor agreement.

The law also provides limitations regarding the performance of work by foreigners of the duties of a temporarily absent co-worker.  Such parallel work is permitted only if it will last for no more than 60 calendar days within one calendar year.

The fee for issuance of a work permit is determined by Article 424 of the Law “On Employment of the Population”.  The amount is tied to the amount of the minimum standard of living rate and the term for which the work permit is issued.  Therefore, the current fee is 6,400 UAH, which would have been equal to 4 minimum salaries (Resolution No. 437 of the Cabinet of Ministers of Ukraine = 12,800 UAH) but for part 4 of Section II of Law No. 1774 which states that from 01.01.17 the rate of 1,600 UAH is now applied in place of the minimum monthly salary (3,200 UAH) for administrative services.  Below is a table of fees for a work permit issuance from September 27, 2017:

No.

Term of work permit or prolongation term

Fee for issuance or prolongation of work permit as of September 27, 2017

1.

From 1 to 3 years

Six minimum standard of living rates established by law as of January 1st of the calendar year in which the work permit application documents are submitted by the employer (currently 9,600 UAH)

2.

From 6 months to one year (inclusive)

Four minimum standard of living rates established by law as of January 1st of the calendar year in which the work permit application documents are submitted by the employer (currently 6,400 UAH)

3.

Up to 6 months

Two minimum standard of living rates established by law as of January 1st of the calendar year in which the work permit application documents are submitted by the employer (currently 3,200 UAH)

Based on the above table, when a foreigner requires a work permit for more than one year, the fee for each year decreases accordingly (instead of 6,400 UAH per year).

Prior to September 27, 2017, the state did not collect an official fee for the prolongation of a work permit.  After September 27, 2017, the state will now collect an official prolongation fee.  The official fee must be paid by the employer within 10 business days from the date of the decision to issue or prolong a work permit.  If payment of the state fee is not made on time, the work permit will be cancelled.

Upon receipt of all required documents, the State Employment Center has seven (7) business days to reach its decision to issue a work permit or three (3) business days to prolong a work permit or introduce any amendments thereto.  Such amendments include:

  • changes to the name of the legal entity (employer) and reorganizational changes (via merger or otherwise) or changes to the name of the private entrepreneur (employer);
  • the foreigner’s new passport, including name changes;
  • change of the name of the position of the foreigner or his/her internal transfer to another position during the validity of the work permit.

Amendments should be noted in an application to the Employment Center along with the documents confirming the need for amendments (copy of new passport with certified translation into Ukrainian, document confirming name change, new labor contract or addition thereto, etc.).  Importantly, the employer must submit the application no later than 30 days after the need for amendments occurs.  Failure to notify the Employment Center on required amendments may lead to penalties related to the employment of a foreigner without a work permit.

The changes to the current law also include a new list of reasons for refusal to issue a work permit, including:

  • failure to provide missing or additional information/substantiations in case of a suspended work permit application, including submission of the work permit application by an unauthorized individual, incomplete documents/information, incorrect form of application/documents, inclusion of incorrect or false information, and improper terms of labor agreement or additions/annexes to labor agreement;
  • late submission of the application and documents to prolong an existing work permit (later than 20 calendar days prior to the expiration of the existing work permit);
  • absence of a registration file about the employer in the Unified State Register of Enterprises and Organizations of Ukraine or the availability of information in the Register about the liquidation of the employer or cancellation of his/her private entrepreneur status.

Notably absent from the above refusal grounds is refusal to issue or prolong a work permit due to the availability of qualified workers in Ukraine (or any region) who may be employed in the vacant position announced by the employer.  Also absent is the refusal ground due to an employer’s refusal to hire Ukrainian citizens sent to the employer by the Employment Center.

The specific grounds for refusal to issue a work permit must be set forth in a formal decision of the Employment Center.  Thereafter, all submitted documents are returned to the employer no later than the next business day from the date of the employer’s request for the return of documents.  The employer may revise the application and documents by removing any grounds for refusal to issue the work permit and submit them once again.

An employer is obligated to notify the Employment Center and request cancellation of a work permit if:

  • the labor agreement (contract) with the foreigner is terminated;
  • the agreement (contract) between Ukrainian and foreign business entities under which the foreigner was sent to Ukraine is fulfilled;

The Employment Center will cancel a work permit at its discretion in the following circumstances:

  • the employer fails to pay the state duty for the issuance or prolongation of a work permit within 10 days from the Employment Center’s decision to issue a work permit;
  • the employer fails to provide to the Employment Center a copy of the labor agreement (contract) with the foreigner within 90 days;
  • false or incorrect information that couldn’t be revealed during the work permit application consideration was provided by the employer;
  • a decision is issued to deport the foreigner (Articles 26 and 30 of the Law “On the Legal Status of Foreigners and Stateless Persons”);
  • a foreigner’s labor is used under conditions other than those set forth in the work permit or by another employer (except part-time work or temporary performance of work for an absent worker – p. 2 and 3 of Article 42 of the Law “On Employment of the Population”;
  • the foreigner is sentenced for the commission of a crime.

Penalties for violations of the work permit rules, including work without a required work permit, failure to leave the country after expiration of a work permit, illegal registration of a foreigner (temporary residency), etc., can be imposed on the officers of the employer or on private entrepreneurs who hire foreigners for work.  The penalties range from 100 to 200 untaxed minimum incomes (currently 17 x 100 to 200 or from 1,700 UAH to 3,400 UAH).  Further, an employer (including private entrepreneurs who hire foreigners from September 27, 2017) can be fined for the following:

  • for labor agreements (contracts) or other agreements without proper procurement of a work permit – a penalty may be imposed for each individual in the amount of 20 minimum monthly salaries upon discovery of a violation (currently 64,000 UAH);
  • for use of the labor of a foreigner under conditions other than those set forth in the work permit or by another employer – a penalty may be imposed for each individual in the amount of 10 minimum monthly salaries upon discovery of a violation (currently 32,000 UAH).

In conclusion, it is not as easy as it once was for a foreigner to remain in Ukraine for more than 90 days without subsequently encountering unpleasant consequences (fines, entry bans and deportation).  Now, more than ever, it is vital for foreign citizens to understand and comply with the new Ukrainian immigration rules.  Please contact us anytime at This email address is being protected from spambots. You need JavaScript enabled to view it. , and we will be happy to assess your specific situation.

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Frishberg & Partners 2012