Anticipated Changes in the Conditions for Employment of Foreigners

On May 26^th, 2017, a draft law on amendments to certain legislative acts of Ukraine on reducing barriers to attract foreign investments (on cancellation of the requirement to register foreign investments, and amendments to the rules for employment and temporary residence of foreigners) No. 4541 as of April 28^th, 2016.

The bill provides for the changes in regulations that govern the procedure for obtaining a work permit for foreigners. The detailed procedure for obtaining permits will be provided in statutes, namely, the Law “On Employment”.

The bill has first introduced the division of foreigners into categories, depending on the grounds for their employment in Ukraine, the specificity of the labour function and taking into account the amount of wages. Thus, such categories as seconded foreign workers, intra-corporate assignees, highly paid foreign professionals, creative foreign workers, foreign IT professionals and foreign employees for hire have been introduced. The question how to classify an employee if he/she combines signs of several categories remains open. For example, if a person is sent to perform a certain scope of work (services) on the basis of an agreement concluded between a Ukrainian and a foreign business entity, and his/her salary is more than 50 minimum wages. In other words, the person falls into both the category of seconded foreign workers and highly paid foreign professionals. The issue is critical, since documents for obtaining a work permit are different for each category of foreign workers. Accordingly, in case of filing an incomplete set of documents, the processing of applications will be suspended and the documents will be returned to the applicant for completion.

It should be noted that the bill which for now has been prepared for the second reading and accessible by public significantly increases the validity period of a work permit depending on a foreign worker category. In particular, the maximum possible term of the permit is three years, however, only for some categories of employees.

In addition, the bill has significantly reduced the number of documents to be submitted irrespective of an employee category. The requirement to submit a document issued by a medical institution that a person is not suffering from chronic alcoholism, substance abuse, drug addiction or other infectious diseases the list of which is determined by the Ministry of Health of Ukraine; a certificate of the Ministry of Internal Affairs that a foreigner or a stateless person who at the time of permit issuance is on the territory of Ukraine is not serving a sentence for commission of a crime and there are no criminal proceedings pending against them; a certificate of an authorized body of the country of origin (residence) that a foreigner or stateless person who at the time of permit issuance is outside Ukraine is not serving a sentence for commission of a crime and there are no criminal proceedings pending against them, has been cancelled. However, unlike the current procedure, a copy of a draft employment agreement (contract) for all categories of employees must be submitted together with other documents.

Note also that the need to file a certificate of non-conviction has also been abolished in the case of filing documents for extension of permit.

An important innovation is the opportunity to use work of a foreign employee in different positions and even by different employers. To do this, you must obtain a work permit for each of them. Employers are known to be rejected in case of applying for a work permit for another position. A highly paid professional will also be allowed to perform labour function of another part-time employee temporarily without obtaining an additional work permit.

It should also be noted that the bill changes the fee for issuing permits. Thus, according to the bill prepared for the second reading, the administrative fee is charged not only for the issuance of a permit, but also for the extension thereof. The amount of such a fee depends on the category of a foreign worker in whose respect the decision is made.

The bill sets out an exhaustive list of circumstances under which an employer must apply to make changes in the issued permit, and a deadline for notification is specified. If it is a matter of changing the name of an employer, the Employment Centre is obliged to obtain confirmation from the USREOU, and the employer has only to report the change.

According to the bill, there is no need to open a vacancy and prove that there are no skilled workers in Ukraine (region) who can be employed for the vacancy declared by an employer and meet the requirements specified by the employer in the report on labour demand (vacancy), which for the time being it is a prerequisite for filing documents for a work permit.

An important initiative is the cancellation of a deadline, which is a period before the end of a work permit, when it is required to file documents for extension of the permit. Let us remind you that now to extend the validity of a permit, an employer needs to submit the documents no later than 20 and not earlier than 40 calendar days before the expiry of the permit.

These draft amendments have been adopted in the second reading and handed over to the President for signature. However, after being signed and officially published, the act may be changed. In any case, the general trends for the division of foreign workers into categories, establishment of several separate procedures depending on a category of workers and the change in the timing for submission and decision-making will soon become real.