New Rules of Obtaining Work Permit for Foreigners: Long-Awaited Alleviation or Window Dressing?
Author: Maryna Slobodianiuk, Senior Lawyer, has a long-term practice of providing services in the sphere of immigration law, has the experience of employment intermediation for foreigners.
In the end of September 2017 the dream of Ukrainian employers finally came true: based on the law of Ukraine No. 2058-VIII “On amendments to certain legislative acts of Ukraine concerning elimination of barriers to attraction of foreign investments” of May 23, 2017 (hereinafter referred to as the “Law”), new rules of obtaining work permit were introduced for foreigners in Ukraine. On top of that, changes were made to the procedure of obtaining temporary residence permit for foreigners in Ukraine. Did these changes really bring relief to all participants of these procedures? Besides, in what way do the rules of obtaining temporary residence permit affect the foreigners’ employment? These are the questions which this article is going to answer.
The very first thing that strikes one’s eye is the list of documents for obtaining work permit, which has been significantly shortened. Indeed, the authorities have considered all the disadvantages and incoherences of the previous documents lists, having optimized the list to such an extent that it now contains only four documents which must be submitted to the employment center. They are: application letter in accordance with the approved form, copy of the first page of the foreigner’s passport along with its translation, a certificate stating that the position which the foreigner wants to take is not connected with access to classified information, and a photo. However, when it comes to certain categories of foreigners (which, for the record, were created by the new law), they are going to need one more document apart from this basic list, depending on which category the foreigner belongs to. It can be a copy of diploma of a certain university graduate, a copy of the document identifying the object of copyright, or a copy of the agreement which provides for the use of labor of the foreigner who was sent to Ukraine by foreign employer in order to perform certain work (or render certain services). Nevertheless, these requirements apply only to a limited number of foreigners and, in general, they do not cause additional problems for the employing companies.
It is also important to know a few things about the abovementioned categories of foreigners: the ones seeking employment in Ukraine. The new rules have brought in a pretty complicated typology of such foreign nationals, which includes the founders (or beneficiaries) of the employing company, IT workers, graduates of prestigious universities, creative workers, high-salaried professionals as well as employees on business trips and internal corporate cessionaries. These categories also have certain perks – e.g., they can obtain a permit valid for up to three years; however, to prove their status they must submit additional documents, as it was already mentioned above.
It should be noted that the changes apply not only to the procedures but also to the prequalification requirements, which must be observed in order to obtain a work permit. E.g., at the moment, employers must provide the foreign employee with a salary not lower than ten minimum wages. Prior to this, the rules for foreign employees’ salaries were the same as for any employees: the salary could not be less than a minimum figure established by the law. Now, the rules have changed and foreign employees are in a better position compared to Ukraine nationals. This change is the reason employers are going to have more expenses when hiring foreigners.
Speaking of expenses: as it was already mentioned in the beginning, the rules of obtaining temporary residence permit in Ukraine have also been reviewed along with the rules of obtaining work permit. Among other conditions, there is one thing which applies to employers having a foreign employee who resides in Ukraine based on the abovementioned residence permit. So, according to the new rules, to prolong the validity term of the residence permit (which was obtained based on the work permit), the employer must have at least three citizens of Ukraine as full-time employees not less than in 6 months before the permit prolongation, or the employer must pay the corporate income tax for the latest financial year in the amount of not less than fifty minimum wages. This requirement came as a surprise for many small companies with limited number of employees, considering the fact that it was not very easy to spot and if omitted, is cannot be corrected later.
However, looking at the pros, it should be also noted that according to the new law, the validity term of work permits for certain categories of employees has been extended up to three years, the work permit can be prolonged an unlimited number of times, and that from now on, the permit’s price is to be calculated based on the minimum living wage and not the minimum wage as it had been before (which reduces the cost of the document). Besides, the requirement concerning the salary which must not be lower than ten minimum wages does not apply to certain categories of foreigners, including the founder or the beneficiary of a company.
One cannot turn a blind eye to the significant alleviations in the procedures, especially the ones dealing with correcting mistakes or inaccuracies in the submitted documents before the decision of issuing/declining a permit is made.
In general, we can say that the new rules do alleviate the procedure of obtaining work permits both for foreign employees and for the employing companies. One can also admit that as these rules are put into practice, it will be easier to spot and correct certain disadvantages and inaccuracies which the new law may contain.