New Employment Conditions for Foreigners Entered into Force

02/ 10/ 2017

On September 27th, 2017, new rules on obtaining and extending work permits and temporary residence permits for foreign citizens came into operation. The new procedure is laid down in the Law On Amendments to Certain Legislative Acts of Ukraine on Elimination of Barriers to Attraction of Foreign Investments, which was adopted on May 23rd, 2017 (hereinafter - the Law). For the first time in Ukraine categories of foreigners were introduced, depending on the reasons for their employment in Ukraine, the labour function and the wage amount. In particular, Article 1(1) of the Law On Employment was supplemented by such categories as seconded foreign workers; intracorporate assignees; foreign highly paid professionals; foreign IT professionals; foreign hired employees and foreign workers of creative professions. Accordingly, each of these categories has its own set of documents to be filed. However, how to classify an employee if he falls within several categories remains unsolved, since in case of submission of an incomplete set of documents, consideration of the application will be suspended and the documents will be returned to the applicant to correct mistakes. It should be noted as well that the validity period of the employment permit has been significantly increased depending on the category of a foreign worker. For example, for foreign highly paid professionals (foreigners or stateless persons, whose salary is at least 50 minimum wages), the maximum possible period is three years. The new rules reduced the list of documents that are mandatory for filing, regardless of the category of an employee. Medical certificates and police clearance are not required anymore. At the same time, a copy of the draft labour contract is required now, which is an innovation. Under the new rules, the decision to issue a permit must be made within 7 working days from the date of filing. The documents for the extension of the permit are filed no later than on the 20th calendar day before the expiration of the current permit. In this case, the decision on the extension of the permit should be made within 3 business days. To do it, only a statement in the form specified by the Cabinet of Ministers, a photo of a foreigner 3.5 cm x 4.5 cm and documents as provided by the list for obtaining permission, if they have changed, should be submitted. However, according to the practice, it may be also necessary to submit additional documents, for example, a valid permit and copies of the foreigner’s passport. An important innovation is the permission to use the work of a foreigner at different positions and even by different employers. To do this, it is needed to get a work permit for each of them. As we know, before the entry into force of the changes, employers got rejections in case they applied for a work permit for another position. At the same time, a highly paid professional is also allowed to perform the labour function of another employee temporarily as the second job without obtaining additional work permits. The law provides for changes in the permit issuing fee. Thus, an administrative fee is levied not only for the issuance of a permit, but for the extension of the work permit as well. At the same time, the amount of such a fee depends on the category of the foreign worker for whom the decision is made. The changes have been also introduced regarding the procedure for issuing and extending the temporary residence permits. Thus, one more ground has been introduced to obtain a temporary residence permit. It is an investment of at least EUR 100 thousand in the authorized capital of a Ukrainian legal entity. Accordingly, a separate set of documents is provided to prove this case. Let us remind you that an investment of at least USD 100 thousand remains the basis for obtaining a permanent residence permit. It is currently not possible to predict whether there will be a conflict in the determination of investment as a basis for issuing both a permanent and a temporary residence permit. The law has reduced the term for making a decision on the issuance of the permit. The relevant decision should be made within ten days from the date of submission of the documents. As we see, the legislator does not say whether these are calendar or working days. Not later than 10 calendar days before the expiry date of the permit, an applicant must submit documents for its extension. Previously, this term was 15 days without specifying whether these were working or calendar days. In this case, only the confirmation of employment by a legal entity, which employs the foreigner, of at least three citizens of Ukraine, who started work not less than six months before the date of application for the extension of the validity of the permit, or payment by the legal entity of the corporate profit tax in the amount not less than 50 minimum wages for the last full fiscal year before the date of application for the extension of the validity period of the permit should be submitted. At present, the State Migration Service does not have a clear position regarding the form and requirements for the preparation of documents, which must prove the above information. It should be noted that the forms of applications and petitions, as well as a detailed list of documents required for filing to obtain a permit for the employment of foreigners and temporary residence permit, are determined by the Resolution of the Cabinet of Ministers of Ukraine No. 437 (regarding work permit) as of May 27th, 2013, Resolution of the Cabinet of Ministers of Ukraine No. 251 as of March 28th, 2012 and Order of the Ministry of Internal Affairs of Ukraine No. 681 (regarding the residence permit) as of July 15th, 2013. Currently, although the three-month period from the date of publication of the Law for the adoption of the relevant regulations by the Cabinet of Ministers has expired, these acts have not been brought into conformity with the Law. Accordingly, despite the entry into force of the Law, it is actually not possible to file documents under the new procedure. Let us remind you that the Law does not regulate or change the procedure for issuing permanent residence permits.

For the first time in Ukraine categories of foreigners were introduced, depending on the reasons for their employment in Ukraine, the labour function and the wage amount. In particular, Article 1(1) of the Law “On Employment” was supplemented by such categories as seconded foreign workers; intracorporate assignees; foreign highly paid professionals; foreign IT professionals; foreign hired employees and foreign workers of creative professions. Accordingly, each of these categories has its own set of documents to be filed. However, how to classify an employee if he falls within several categories remains unsolved, since in case of submission of an incomplete set of documents, consideration of the application will be suspended and the documents will be returned to the applicant to correct mistakes.

It should be noted as well that the validity period of the employment permit has been significantly increased depending on the category of a foreign worker. For example, for foreign highly paid professionals (foreigners or stateless persons, whose salary is at least 50 minimum wages), the maximum possible period is three years.

The new rules reduced the list of documents that are mandatory for filing, regardless of the category of an employee. Medical certificates and police clearance are not required anymore. At the same time, a copy of the draft labour contract is required now, which is an innovation.

Under the new rules, the decision to issue a permit must be made within 7 working days from the date of filing.

The documents for the extension of the permit are filed no later than on the 20th calendar day before the expiration of the current permit. In this case, the decision on the extension of the permit should be made within 3 business days. To do it, only a statement in the form specified by the Cabinet of Ministers, a photo of a foreigner 3.5 cm x 4.5 cm and documents as provided by the list for obtaining permission, if they have changed, should be submitted.

However, according to the practice, it may be also necessary to submit additional documents, for example, a valid permit and copies of the foreigner’s passport.

An important innovation is the permission to use the work of a foreigner at different positions and even by different employers. To do this, it is needed to get a work permit for each of them. As we know, before the entry into force of the changes, employers got rejections in case they applied for a work permit for another position. At the same time, a highly paid professional is also allowed to perform the labour function of another employee temporarily as the second job without obtaining additional work permits.

The law provides for changes in the permit issuing fee. Thus, an administrative fee is levied not only for the issuance of a permit, but for the extension of the work permit as well. At the same time, the amount of such a fee depends on the category of the foreign worker for whom the decision is made.

The changes have been also introduced regarding the procedure for issuing and extending the temporary residence permits. Thus, one more ground has been introduced to obtain a temporary residence permit. It is an investment of at least EUR 100 thousand in the authorized capital of a Ukrainian legal entity. Accordingly, a separate set of documents is provided to prove this case.

Let us remind you that an investment of at least USD 100 thousand remains the basis for obtaining a permanent residence permit. It is currently not possible to predict whether there will be a conflict in the determination of investment as a basis for issuing both a permanent and a temporary residence permit.

The law has reduced the term for making a decision on the issuance of the permit. The relevant decision should be made within ten days from the date of submission of the documents. As we see, the legislator does not say whether these are calendar or working days.

Not later than 10 calendar days before the expiry date of the permit, an applicant must submit documents for its extension. Previously, this term was 15 days without specifying whether these were working or calendar days. In this case, only the confirmation of employment by a legal entity, which employs the foreigner, of at least three citizens of Ukraine, who started work not less than six months before the date of application for the extension of the validity of the permit, or payment by the legal entity of the corporate profit tax in the amount not less than 50 minimum wages for the last full fiscal year before the date of application for the extension of the validity period of the permit should be submitted. At present, the State Migration Service does not have a clear position regarding the form and requirements for the preparation of documents, which must prove the above information.

It should be noted that the forms of applications and petitions, as well as a detailed list of documents required for filing to obtain a permit for the employment of foreigners and temporary residence permit, are determined by the Resolution of the Cabinet of Ministers of Ukraine No. 437 (regarding work permit) as of May 27th, 2013, Resolution of the Cabinet of Ministers of Ukraine No. 251 as of March 28th, 2012 and Order of the Ministry of Internal Affairs of Ukraine No. 681 (regarding the residence permit) as of July 15th, 2013. Currently, although the three-month period from the date of publication of the Law for the adoption of the relevant regulations by the Cabinet of Ministers has expired, these acts have not been brought into conformity with the Law. Accordingly, despite the entry into force of the Law, it is actually not possible to file documents under the new procedure.

Let us remind you that the Law does not regulate or change the procedure for issuing permanent residence permits.