Legal Regulation of Foreigners’ Employment in Ukraine

Mariia Baranovych, Associate with Legal Alliance Company

Irina Shlyakhovska, Associate with Legal Alliance Company

An issue of concluding an employment contract by an employer and an employee, who is a foreigner or a person without citizenship (hereinafter referred to as “a foreigner”), is regulated by the national legislation of Ukraine, as well as international agreements of Ukraine, concluded with foreign states in the field of labour and social protection.

According to current legislation of Ukraine, employers are entitled to employ foreigners under employment contracts only in case of obtaining an Alien Employment License, unless otherwise provided by an international agreement of Ukraine.
Alien Employment Licenses are issued, prolonged and cancelled according to the Procedure of Issuing, Extension and Cancellation of Alien Employment Licenses for Employment of Foreigners and Persons without Citizenship, approved by the Decree of the Cabinet of Ministers dated April 08, 2009, No. 322 (hereinafter referred to as the Procedure No. 322).

Alien Employment License is issued by an employment center to an employer, which is registered in an employment center as a payer of an insurance premium to the Fund of the Compulsory State Social Unemployment Insurance of Ukraine and does not have any debt before it.

According to clause 5 of the Procedure No. 322, in order to obtain an Alien Employment License, an employer shall file to an employment center the following documents:

• an application;
• two 3,5 х 4,5 cm colour photographs;
• a statement of reasons for employment of the foreigner and ability to provide him/her with proper facilities for his/her stay and work;
• a duly executed document (an order, an extract from the minutes, a power of attorney etc.), which certifies a person’s entitlement to represent the employer’s interests in the employment center;
• a tax clearance certificate (tax paid certificate) of the employer certifying mandatory fees and taxes were paid;
• a document issued by an employment center certifying the employer does not owe any payment to the Fund of the Compulsory State Social Unemployment Insurance of Ukraine;
• payment receipt certifying a fee was paid for an application consideration (the fee shall constitute four minimum salaries);
• a copy of a draft employment agreement (contract), certified by the employer;
• a statement, signed and sealed by the employer (if the company has a secret security department, the statement shall be signed by a manager of this department as well), certifying a working place or a position for a foreigner’s employment is not related to the citizenship of Ukraine and do not require access to state secrets under the current legislation of Ukraine;
• an extract from the criminal record (a certificate of no criminal record/a non-conviction certificate), issued by the Internal Affairs Agency, certifying the foreigner has/does not have a criminal record (if the foreigner stays within the territory of Ukraine while the Alien Employment License is processed);
• a statement of an authorized agency of the foreigner’s country of origin (residence) certifying the foreigner is neither sentenced for a crime, nor under investigation (if the foreigner stays outside the territory of Ukraine while the Alien Employment License is processed);
• a duly certified copy of a Statute (Articles of Association) of the employer;
• copies of documents on the foreigner’s education or qualification;
• copies of pages of the foreigner’s passport, containing identification data;
• an abbreviate or an extract from the Uniform State Register of Legal Entities and Individuals-Entrepreneurs.

In order to obtain an Alien Employment License provided that the foreigner is assigned by a foreign entity to perform a definite scope of works or deliver services in Ukraine under an agreement (a contract), concluded between a Ukrainian entity and a foreign one, the employer shall file a copy of the aforesaid agreement (contract), except the abovementioned documents.

In order to obtain an Alien Employment License provided that the foreigner is ranked as “an intra-corporate assign (transferee)” or “a person delivering services without a commercial presence in Ukraine”, the employer shall file documents listed in clause 5 of the Procedure No. 322 (except a statement of reasons for employment of the foreigner and ability to provide him/her with proper facilities for his/her stay and work; and a copy of a draft employment agreement (contract), certified by the employer), as well as the following documents:

• a decision of the foreign entity to outplace (transfer) the foreigner to Ukraine;
• a copy of the contract, concluded between the foreigner and the foreign entity on outplacement (transfer) to Ukraine with a specified period of work in Ukraine;
• a copy of the contract on direct delivery of services in Ukraine (for a foreigner, which is ranked as “a person delivering services without a commercial presence in Ukraine”).

Please pay attention, all documents issued by a foreign state and drafted in a foreign language, which shall be filed to the employment center, shall be translated into Ukrainian, certified under the law of the country of issue and legalized in the Ministry of Foreign Affairs of Ukraine or certified by apostille under the Hague Convention of 5 July 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents.

The employment center shall deliver a decision with regard to the employer’s application for the Alien Employment License within 30 calendar days since the date of all required documents receipt. The employment center shall notify the employer on its decision.

The Alien Employment License is issued for the term up to one year. In order to extend this license, the employer shall file to the employment center all documents, which are required for an Alien Employment License, one month before the license expiry at the latest.

If an employer employs foreigners or people without citizenship under an employment agreement without having obtained an Alien Employment License, the State Employment Service shall impose a fine on the employer. The fine constitutes twenty minimum salaries, set forth by the law, for each of such foreign employees.

The Alien Employment License is a legal ground for a foreigner’s visa of a respective type, registration of his/her temporary residence in Ukraine and execution of a permit for temporary residence.

The employer shall deliver duly certified copies of the Alien Employment License to:

• the foreigner,
• a Ukrainian consular office in the place or permanent residence of the foreigner in order to execute a visa of a respective type permitting the foreigner to enter the territory of Ukraine,
• a migration service agency for registration of the foreigner’s place of temporary residence in Ukraine.

A long-term visa, marked with the letter D (VD), is issued to foreigners obtaining an Alien Employment License.

Foreigners and people without citizenship who entered Ukraine with an employment purpose on the grounds of the Alien Employment License, issued by the employment center and a visa D with a special notice «Employment», shall obtain a permit for temporary residence, which is executed by local agencies of the State Migration Service of Ukraine by place of their residence.

Foreigners and people without citizenship, who have received a permit for temporary residence, shall be registered by place of residence. They shall pass re-registration in case of habitation change.