Employment of foreigners: Key legislative developments
By Svitlana Kheda
This year, the Ukrainian authorities introduced a number of new important and sometimes confusing provisions in the area of work permit and exit/entry procedures for foreign employees of Ukrainian companies. In particular, the newly adopted governmental Resolution No. 322 has brought much attention and its implementation has already created problems for many foreigners working in Ukraine. The Resolution replaced the work permit procedure of 1999 and is viewed by many as a protectionist reaction of the Ukrainian government to the massive layoffs of local employees due to financial crisis.
One of the major novelties of the Resolution No. 322 is that the documents submitted for issuance of work permits are now subject to consideration by specially created commissions at the respective local Employment Centers to include representatives of various state agencies, including of the state security service.
The Resolution No. 322 also introduces a number of additional important requirements with respect to employment of foreigners, including the employer’s obligation to (i) notify the Employment Center on the actual commencement of work by a foreigner, (ii) register a foreigner’s passport with the local department of the Ministry of Internal Affairs and (iii) notify in writing the appropriate body of the Ministry of Internal Affairs, State Frontier Service and the Employment Centre on the foreigner’s failure to start working without a good reason, etc.).
Under Ukrainian law, all foreigners working in Ukraine after obtaining respective work permits must apply for a work (IM-1) visa. However, the past practice suggests that that this rule has been extensively ignored and many foreign employees holding work permits have been entering Ukraine using business visas (i.e. they never changed their business visas for work visas). The Resolution No. 322 obliged Ukrainian employers to send copies of the work permits for each of their foreign employees to the Ukrainian consulate offices located in a country of permanent residence of each foreigner concerned. Therefore, the foreigners and their Ukrainian employers could now become more obedient to the work visa requirement, especially considering that if an immigration officer discovers that a foreign employee violates a visa regime this foreigner can be banned from entering Ukraine for a period from six months to 5 years.