PERMIT TO EMPLOY FOREIGNERS AND STATELESS PERSONS IN UKRAINE

The right to work as one of the fundamental economic human rights is recognized in Article 23 of the Universal Declaration of Human Rights, adopted and proclaimed by UN General Assembly Resolution 217 A (III) of December 10, 1948. Everyone has the right to work, to free choice of employment, to fair and favorable working conditions, and to protection from unemployment.

            Article 6 of the International Covenant on Economic, Social and Cultural Rights, which entered into force in 1976, states that everyone has the right to work, which includes the right to earn living by work freely chosen or accepted.

            In accordance with Part I of the European Social Charter of 1996, the Parties recognize that it is the aim of their policies, which they will pursue by all appropriate means, both national and international, to achieve conditions under which such rights and principles may be effectively exercised:

• everyone should have the opportunity to earn a living in a profession of their choice;
• all employees have the right to fair working conditions;
• all employees have the right to safe and healthy working conditions;
• all employees have the right to fair remuneration that will ensure an adequate standard of living for themselves and their families.

            According to the Law of Ukraine “On Ratification of the European Social Charter (Revised)”, Ukraine has undertaken to consider Part I of the said Charter as a declaration of objectives to be pursued by all appropriate means.

            As for the national legislation, Article 43 of the Constitution of Ukraine enshrines the right to work, which includes the ability of a person to earn a living by work that they freely choose or agree to.

            Foreigners and stateless persons enjoy the same rights and freedoms and bear the same obligations as citizens of Ukraine, with the exceptions established by the legislation or international treaties of Ukraine.

            Pursuant to Article 8 of the Labor Code of Ukraine, labor relations of foreign nationals working at Ukrainian enterprises, institutions and organizations are regulated in accordance with the Law of Ukraine “On Private International Law”. Article 54 of the Law provides that labor relations of foreigners and stateless persons working in Ukraine are not regulated by Ukrainian law in only two cases:

• foreigners and stateless persons work as part of diplomatic missions of foreign states or representative offices of international organizations in Ukraine, unless otherwise provided by an international treaty of Ukraine;
• foreigners and stateless persons outside Ukraine have entered into labor contracts with foreign employers – individuals or legal entities to perform work in Ukraine, unless otherwise provided by agreements or an international treaty of Ukraine.

            Thus, Ukrainian legislation ensures the right of foreigners and stateless persons to work in our country. In addition, the official employment of such persons in Ukraine has many legal nuances and requires the passage of appropriate procedures.

            The Constitutional Court of Ukraine has repeatedly stated in its decisions that there can be no discrimination in the exercise of labor rights by employees. Any restriction of human and civil rights must be not only legally justified, but also socially justified and adequate (Decision No. 21-рп/2010 of the Constitutional Court of Ukraine of October 6, 2010). Violation of the equality of employees in labor rights and guarantees is unacceptable, and any restriction must have an objective and reasonable justification and be carried out with due regard and compliance with the provisions of the Constitution of Ukraine and international legal acts (Decision No. 6-р(II)/2019 of the Constitutional Court of Ukraine of September 4, 2019).

            For example, it should be noted that the state has established cases when foreigners and stateless persons cannot be appointed to positions. An example is part two of Article 1 of the Law of Ukraine “On Civil Service”, according to which only a citizen of Ukraine can hold a civil service position in a state authority, other state body, its apparatus (secretariat), receive a salary from the state budget and exercise the powers established for this position.

            Thus, foreigners and stateless persons may not be appointed to a position or engage in labor activity if, in accordance with Ukrainian law, appointment to such a position or conduct of the relevant type of activity is related to Ukrainian citizenship.

With respect to positions that do not have restrictions on the appointment of foreigners and stateless persons, the Law of Ukraine “On Employment of the Population” stipulates that foreigners and stateless persons permanently residing in Ukraine, who are recognized as refugees in Ukraine, who have been granted asylum in Ukraine, who are recognized as persons in need of additional protection, who have been granted temporary protection, and who have obtained a permit to immigrate to Ukraine, have the right to employment on the grounds and in accordance with the procedure established for Ukrainian citizens.

            Foreigners and stateless persons who have arrived in Ukraine for employment for a specified period of time are hired by employers on the basis of a work permit for foreigners and stateless persons issued in accordance with the procedure established by law, unless otherwise provided by laws and/or international treaties of Ukraine ratified by the Verkhovna Rada of Ukraine.

            First of all, it should be noted that a permit to employ foreigners and stateless persons is granted to an employer – a legal entity or an individual entrepreneur. A work permit in the name of a person does not allow another employer to use the labor of such a person without obtaining the appropriate permit. Foreigners and stateless persons may be employed in various positions by one or more (two or more) employers, provided that each employer obtains a permit for the employment of foreigners and stateless persons in Ukraine.

            Foreigners and stateless persons may be employed without a work permit in part-time positions with the same employer if the term of the part-time employment contract does not exceed the term of the work permit at the main place of employment. A foreigner or a stateless person may combine work in a position specified in a work permit for foreigners and stateless persons with work in the position of a temporarily absent employee, provided that the combination lasts no more than 60 calendar days during a calendar year.

Before deciding whether to issue a work permit for foreigners and stateless persons, an employer should analyze all provisions of the legislation governing the employment of foreigners in Ukraine. In particular, it should be noted that the following categories of persons may be employed without obtaining the above-mentioned permit:

• foreigners and stateless persons permanently residing in Ukraine;
• foreigners and stateless persons who have been granted refugee status in accordance with the laws of Ukraine or have obtained a permit to immigrate to Ukraine;
• foreigners and stateless persons recognized as persons in need of complementary protection or granted temporary protection in Ukraine;
• representatives of foreign sea (river) fleets and airlines that serve such companies in Ukraine;
• persons recognized as stateless by the central executive body that implements the state policy in the field of migration (immigration and emigration), including combating illegal (irregular) migration, citizenship, registration of individuals, refugees and other categories of migrants defined by law;
• employees of foreign media accredited to work in Ukraine;
• athletes who have acquired professional status, artists and art workers to work in Ukraine in their specialty;
• employees of emergency services to perform urgent work;
• employees of foreign representative offices registered in Ukraine in accordance with the procedure established by law;
• clergymen who are foreigners and temporarily stay in Ukraine at the invitation of religious organizations to carry out canonical activities only in such organizations with the official approval of the body that registered the articles of association (regulations) of the relevant religious organization;
• foreigners and stateless persons who arrived in Ukraine to participate in the implementation of international technical assistance projects;
• foreigners and stateless persons who have arrived in Ukraine to carry out teaching and/or research activities in professional pre-higher and higher education institutions at their invitation;
• other foreigners and stateless persons in cases stipulated by the laws and international treaties of Ukraine, ratified by the Verkhovna Rada of Ukraine.

            Without obtaining a work permit, foreigners and stateless persons may carry out foreign investments in the Ukrainian economy, economic and foreign economic activities. In addition, without obtaining a work permit, Ukrainian law allows such persons to register as individual entrepreneurs.

            In addition, the law may establish other provisions that allow foreigners and stateless persons to be employed without the employer obtaining a permit. Thus, taking into account the principle of reciprocity and as a sign of gratitude to the Polish nation for its solidarity and support of Ukraine in the face of the full-scale armed aggression of the Russian Federation, the Law of Ukraine “On Establishing Additional Legal and Social Guarantees for Citizens of the Republic of Poland Staying in the Territory of Ukraine” was adopted, according to Article 2 of which citizens of the Republic of Poland during their stay in Ukraine have the right to be employed without a work permit for foreigners and stateless persons.

Article 42 of the Law of Ukraine “On Employment of Citizens” stipulates that a permit for the employment of foreigners and stateless persons in Ukraine is issued by the territorial bodies of the central executive body that implements the state policy in the field of employment and labor migration. Currently, these powers fall within the competence of the Ministry of Economy of Ukraine. The State Employment Service is a centralized system of state institutions, whose activities are directed and coordinated by the Ministry of Economy of Ukraine.

            In order to obtain a work permit for foreigners and stateless persons , an employer must prepare and submit the following documents to the regional office of the State Employment Service:

• statement in which the employer confirms that the position in which the foreigner or stateless person will be employed is not related to Ukrainian citizenship and does not require access to state secrets;
• copies of the pages of the passport document of a foreigner or stateless person with personal data together with a translation into Ukrainian, certified in accordance with the established procedure (except for foreigners and stateless persons in respect of whom a decision has been made to issue documents to resolve the issue of recognition as a refugee or a person in need of complementary protection; foreigners and stateless persons who appeal against the decision to refuse to issue documents to resolve the issue of recognition as a refugee or a person in need of complementary protection; persons who have applied for recognition as a stateless person and persons who appeal against a decision to refuse to be recognized as a stateless person);
• color photograph of a foreigner or stateless person 3.5 x 4.5 centimeters;
• draft employment agreement (contract) or gig contract with a foreigner or stateless person certified by the employer (except for seconded foreign employees).

            For certain categories of employees, the employer also submits:

• copy of a foreign economic agreement (contract) concluded between a Ukrainian and a foreign business entity that provides for the employment of foreigners and stateless persons sent by a foreign employer to Ukraine to perform a certain amount of work (provide services), and copy of a document confirming the existence of an employment relationship between a foreign employee and the foreign employer who sent them (for seconded foreign employees);
• copy of the foreign business entity’s decision to transfer a foreigner or stateless person to work in Ukraine with the determination of the period of their employment and a copy of the employment agreement (contract) concluded by the Ukrainian business entity with the foreigner or stateless person (for intra-corporate assignees);
• copy of the decision to process documents to resolve the issue of recognition as a refugee or a person in need of complementary protection, or a copy of a certificate of application for protection in Ukraine (for persons in respect of whom a decision was made to process documents to resolve the issue of recognition as a refugee or a person in need of complementary protection, and persons who appeal against a decision to refuse to process documents to resolve the issue of recognition as a refugee or a person in need of complementary protection);
• copy of a standardized certificate of application for statelessness recognition (for persons who have applied for statelessness recognition and persons who appeal against a decision to refuse statelessness recognition);
• copy of the order of the higher education institution of Ukraine on enrollment and establishment of study periods for foreign or stateless students; written consent of the higher education institution of Ukraine (in any form) regarding the employment of a foreign student and the obligation of such institution to inform the territorial body of the central executive body that implements the state policy in the field of employment and labor migration about the expulsion of a foreigner or stateless person from such institution; copy of the temporary residence permit; copy of a higher education document certified in accordance with the established procedure (for foreigners or stateless persons who have arrived in Ukraine to study at higher education institutions and intend to work in Ukraine during the period of study and after graduation, subject to employment no later than 30 calendar days before the completion of their studies).

            We emphasize that documents issued abroad must be legalized in accordance with the established procedure, unless otherwise provided by international treaties of Ukraine ratified by the Verkhovna Rada of Ukraine. Documents drawn up in a foreign language must be translated into Ukrainian. The authenticity of the translator’s signature must be notarized.

            The employer must attach to the package of required documents a document on payment of the fee for issuing a work permit for foreigners and stateless persons. The fee for issuing a work permit for foreigners and stateless persons is set forth in the Law of Ukraine “On Employment of the Population” and amounts to:

• for permits issued for a period of up to six months inclusive – three subsistence minimums for able-bodied persons established by law as of January 1 of the calendar year in which the employer or his authorized representative submitted the documents;
• for permits issued for a period of six months to one year inclusive – five subsistence minimums for able-bodied persons established by law as of January 1 of the calendar year in which the employer or his/her authorized representative submitted the documents;
• for permits issued for a period of one to two years inclusive – eight subsistence minimums for able-bodied persons established by law as of January 1 of the calendar year in which the employer or his/her authorized representative submitted the documents;
• for permits issued for a period of two years to three years inclusive – ten subsistence minimums for able-bodied persons established by law as of January 1 of the calendar year in which the employer or his/her authorized representative submitted the documents.

The validity period of a work permit for foreigners and stateless persons may not exceed three years and may be extended an unlimited number of times, if necessary.

To extend the permit, the employer submits an application in the prescribed form, a 3.5 x 4.5 cm photo of the foreigner or stateless person, documents according to the list for obtaining the permit in case of changes in the information in them, and a document on payment of the permit extension fee. The fee for the extension of the permit is reduced by one subsistence minimum from the fee for issuing the permit for the corresponding period.

In addition, in the event of a change in the name of a legal entity, its reorganization or spin-off (change of name and/or surname and/or patronymic of an individual entrepreneur), issuance of a new passport document of a foreigner or stateless person, change of the title of a position of a foreigner or stateless person, transfer to another position with the same employer within the period for which the permit has been issued, the employer is obliged to apply to the regional employment center with an application for amendments to the permit for the employment of foreigners and stateless persons:

Application forms for obtaining a work permit for foreigners and stateless persons, extending the validity of a work permit for foreigners and stateless persons, and amending a work permit for foreigners and stateless persons are set out in Resolution No. 858 of the Cabinet of Ministers of Ukraine dated November 15, 2017.

The documents and application submitted for obtaining a work permit for foreigners and stateless persons are reviewed within seven business days, and for extending the permit or amending it – within three business days.

The employer is obliged to conclude an employment contract with the employee no later than ninety calendar days from the date of issuance of the permit and provide a certified copy of it to the territorial employment center within ten days after the conclusion of such a contract. Failure to fulfill this obligation by the employer is grounds for revoking the issued permit, so you should strictly comply with the requirements established by law.

An application and documents for the extension of a work permit for foreigners and stateless persons may be submitted no later than 20 and no earlier than 50 calendar days before the expiration of such a permit.

The employer is obliged to pay the employee a salary not lower than the minimum wage. This obligation does not apply to seconded foreign employees and intra-corporate assignees.

It should be noted that a work permit allows a person to obtain a visa for a long-term stay in Ukraine, register a place of temporary residence in Ukraine, and obtain a temporary residence perm it in Ukraine for the duration of the permit.

If necessary, a work permit can be obtained before the employee arrives in Ukraine, especially for persons from countries with which our country has a visa regime. There are exceptions to this option, namely Belarusian and Russian citizens, as well as citizens of other states recognized as posing a threat to state sovereignty, territorial integrity and democratic constitutional order and other national interests of Ukraine, who are required to obtain approval from the regional bodies of the Security Service of Ukraine to obtain a permit. Such approval is obtained based on the results of the interview.

In order to obtain a work permit before the employee arrives in Ukraine, a duly legalized power of attorney to represent the interests of the future employee should be executed. Such representative actions include, in particular, obtaining an individual’s tax number, which is necessary for hiring an employee.

The above information is not exclusive and sufficient for employers to hire foreigners and stateless persons, as this procedure has a number of peculiarities, in particular, regarding the provisions of the employment agreement (contract), execution of the package of documents, obtaining a tax number, etc. Therefore, it is advisable for the employer to engage a lawyer (attorney) on migration issues.

WHAT DOES AN IMMIGRATION LAWYER’S CONSULTATION ON OBTAINING A WORK PERMIT FOR FOREIGNERS INCLUDE?

If you have any questions after reading these materials, it would be advisable to use the services of a specialist and order a preliminary consultation with a lawyer or attorney.

            During the consultation, the migration lawyer will:

• analyze the chosen method of attracting labor resources;
• having found out the goals for which labor resources are being used, if possible, offer alternative options;
• answer other questions related to obtaining work permits for foreigners and stateless persons.

THE LIST OF SERVICES OF A LAWYER ON MIGRATION ISSUES (KYIV) CONTAINS:

• advice on obtaining a work permit;
• obtaining an identification (tax) number;
• obtaining a work permit in Ukraine;
• preparation and submission of an application and documents to the relevant territorial employment center;
• drafting an employment agreement (contract);
• drafting a foreign economic contract between a foreign employer and a Ukrainian business entity;
• extension of the work permit;
• amendments to the work permit;
• preparation of a package of documents for obtaining a type D visa;
• obtaining a temporary residence permit in Ukraine.

If you have any questions, please call: + 38 097 646 46 44. 

Information on the cost of consulting and other services.