On September 21, 2022, the Verkhovna Rada of Ukraine adopted the Law “On Amendments to Certain Laws of Ukraine on the Employment of Foreigners and Stateless Persons in Ukraine and the Provision of Intermediary Services in Employment Abroad”, which amended the Law “On Employment of the Population”, in part, that regards the employment of foreigners.
On October 15, 2022, the changes came into force, and, consequently, the updated rules for the employment of foreigners and stateless persons in Ukraine began to operate.
In this article, we will consider what the legislator has proposed for foreign workers and their employers, and compare the new and the old procedure for processing documents.
As before, in order to legally employ a foreigner, one must first obtain a permit for employment of foreigners and stateless persons in any employment center. For convenience, hereinafter in the text we will call this document more concisely - permit.
1. New categories of persons to whom permits are issued/prolonged and maximum periods of validity
The updated Law “On Employment of the Population” no longer contains the concept of special categories of foreigners.
Previously, this group included:
● foreign highly paid professionals (salary over 50 times the minimum wage);
● foreign IT professionals;
● foreign workers of creative professions;
● founders and/or participants and/or beneficiaries (controllers) of a legal entity established in Ukraine;
● university graduates ranked in the top 100 in world university rankings.
Permits for these categories of foreigners were possible to issuue immediately for 3 years and they were not subject to the requirement of mandatory payment of 10 minimum wages.
Permits can now be issued for one general category, the foreign employee. The maximum validity period for this category is 2 years.
The permit can be renewed an unlimited number of times.
In addition to foreign employees, permission can be obtained by:
● seconded foreign employees - for the duration of the foreign economic agreement, but not more than 3 years;
● intra-corporate assignees – the term of the decision to transfer to Ukraine to work and the labor contract, but not more than 3 years;
● foreigners and stateless persons regarding of whom a decision has been made to process documents to resolve the issue of recognition as a refugee or a person in need of additional protection, as well as those, who is appealing a decision to refuse - for the period of validity of the certificate of application for protection in Ukraine, but no more than 1 year;
● persons who have applied for recognition as a stateless person and persons appealing a decision to refuse recognition as a stateless person - the validity period of the certificate of application for recognition as the stateless person, but not more than 1 year;
● foreigners and stateless persons who arrived in Ukraine for the purpose of studying at higher educational institutions and intend to work in Ukraine during the period of study and after graduation, if employment provided no later than 30 calendar days before the end of education - the term the validity of the employment contract, but not more than 1 year during the period of study.
As you can see, only 2 categories of foreigners can apply for a permit valid for 3 years: seconded employees under foreign economic agreements and internal corporate assignees. IT professionals and founders of legal entities will be able to obtain permits for a maximum of 2 years.
Finally, attention was also paid to foreign students of Ukrainian universities, who were identified as a separate category of persons who can apply for a permit. Conditions for an employer to obtain a permit for this category are preferential. However, more on that later.
2. The requirement to pay a foreigner 10 minimum wages has been abolished
There are no minimum wage requirements for foreigners in the updated Law at all. So in order to employ a foreigner, it is no longer necessary to set wages in the amount of at least 10 minimum wages. It is enough to comply with the general norms of the legislation of Ukraine on salary.
3. Increased the fee for issuing a permit
Although state fees for issuing and renewing permits have increased significantly, the legislator has provided that the employer will pay less for the prolongation of the permit than for the initial issuance. Thus, the amount of the renewal fee is 1 subsistence minimum less than the amount of the issuance fee for the corresponding period.
As before, the state payment will change every January 1 of the new year and will be calculated based on the subsistence minimum for able-bodied persons established by law on January 1 of the calendar year in which documents are submitted.
Thus, according to the new rules, in order to obtain a work permit in 2022, the employer must pay:
For initial issuance:
● up to 6 months (inclusive) - UAH 7443 (three subsistence minimums for able-bodied persons);
● from 6 months to 1 year (inclusive) – UAH 12,405 (five subsistence minimums for able-bodied persons);
● from 1 to 2 years (inclusive) – UAH 19,848 (eight subsistence minimums for able-bodied persons);
● from 2 to 3 years (inclusive) – UAH 24,810 (ten subsistence minimums for able-bodied persons).
For prolongation of a valid permit:
● up to 6 months (inclusive) – UAH 4962 (two subsistence minimums for able-bodied persons);
● from 6 months to 1 year (inclusive) - UAH 9924 (four subsistence minimums for able-bodied persons);
● from 1 to 2 years (inclusive) – UAH 17,367 (seven subsistence minimums for able-bodied persons);
● from 2 to 3 years (inclusive) – UAH 22,329 (nine subsistence minimums for able-bodied persons);
The categories for which permission is issued free of charge are also defined:
● foreigners and stateless persons regarding of whom a decision has been made to process documents for resolving the issue of recognition as a refugee or a person in need of additional protection, as well as challenging the decision to refuse;
● foreigners and stateless persons who arrived in Ukraine for the purpose of studying at higher educational institutions;
● persons who have applied for recognition as a stateless person, and persons appealing the decision to refuse;
● foreigners or stateless persons who were directly involved in rebuffing and deterring the armed aggression of the russian federation against Ukraine.
So in order to employ a student, the employer will not need to pay a fee for obtaining a permit. However, in order to obtain such a permit, it will be necessary to collect a slightly wider package of documents than for an ordinary foreign employee.
A significant innovation is the fact that employers will be able not to pay a state fee for issuing a permit to a foreigner who fought on the side of Ukraine. In order to obtain permission for this category, it will not be necessary to attach additional confirmations to the package of documents. Employment centers will receive information about the direct participation of a foreigner or stateless person in rebuffing and deterring the armed aggression of the russian federation against Ukraine from the Ministry of Defense on their own.
4. Returned the upper limit of the period in which you need to apply for a prolongation of the permit
Now one can apply for the prolongation no earlier than 50 calendar days before the expiration date of the permit. The lower limit remained unchanged - 20 calendar days before the end.
5. Non-payment of UST - grounds for cancellation of permission
According to the new norm, the employment center that issued the permit will verify the fact that the employer has paid a unified social tax. If the unified social tax has not been paid by the employer within two months from the date of conclusion of the employment contract with a foreigner, the relevant employment center will decide to cancel the permit.
Monitoring of payment by the employer of a unified social tax will be carried out by exchanging data with the Pension Fund of Ukraine.
Also, if the permit is canceled on this basis, the employer will not be able to reissue a work permit within 1 year from the date of the relevant decision.
6. Lost or damaged permit form can be re-issued
Finally, the legislator provided the issuance of permit duplicates by employment centers. Previously, it was impossible to obtain a duplicate. In case of loss of the document, in order to obtain a new blank, one had to either renew the permit or make changes to it.
The issuance of a duplicate will be free of charge, and in order to receive it, it will be necessary to submit an application in any form and wait 7 working days.
Employment centers will inform the State Border and Migration Services about the issuance of a duplicate.
7. Fee for issuing or prolonging a permit must be paid before submitting documents
Previously, payment had to be made within 10 working days after a positive decision of the employment center.
According to the amended rules, the employer must submit a document confirming the payment for the issuance or prolongation of the permit along with the relevant application form.
In case of refusal, the funds paid by the employer for issuing or prolonging the permit will be returned by transferring them to the current account of the employer no later than 10 working days from the date of the relevant decision.
8. Documents for obtaining a permit can be applied online and by mail
The following ways of submitting documents are provided:
● personally during the reception;
● mail with a description of the attachment;
● through the employer's electronic office or other state electronic systems of online services using an electronic signature and passing the verification procedure;
● through the center for the provision of administrative services;
● through the Unified State Web Portal of Electronic Services.
Online submission options will only work if technically feasible.
9. All categories of foreigners can work part-time without the need to obtain additional permission
The labor of foreigners can be used without permission in part-time positions within one employer, if the term of the employment contract in the part-time position does not exceed the validity period of the permit at the main place of work.
Previously, this rule only applied to highly paid foreign professionals.
Also, regardless of the category for which the permit was obtained, the foreigner has the right to combine work in the position determined by the permit with work in the position of a temporarily absent employee, provided that the combination lasts no more than 60 calendar days during the calendar year.
10. The state bodies with which employment centers will exchange information on issued permits and it`s mechanism have been determined
The decisions made by the employment center will be notified electronically to a number of state bodies that are related to the foreigners employment and stay on the territory of Ukraine.
For example, within three working days from the date of cancellation of the permit, the State Migration Service, the State Border Service, the National Police, the State Labor Service will be notified about this.
11. Cancellation of a permit on certain grounds will result in a refusal to issue it again
These grounds include, in particular:
● identification of unreliable data in the documents submitted by the employer, which could not be detected during the consideration of the application;
● establishing the fact of using the labor of a foreigner or a stateless person on other conditions than those specified by the permit, or by another employer (except for part-time work);
● non-use by a foreigner or stateless person of the right to appeal against the decision of the SMS to refuse recognition as a refugee or a person in need of subsidiary protection, or a stateless person, or when the final decision on the refusal to be recognized as a refugee or a person in need of subsidiary protection, refusal in recognition as a stateless person has been made;
● entry into legal force of a guilty verdict of a court, according to which a foreigner or a stateless person has been convicted of a criminal offense;
● receiving information from an institution of higher education in Ukraine on the expulsion of a foreigner or stateless person from such an institution.
That is, if one of the above points served as the basis for the cancellation of the permit, the employment center will refuse to issue, renew, amend the permit of the relevant foreigner or stateless person.
This will not apply in cases where the employer submits an application for a permit to another foreigner or stateless person.
12. The decision of the employment center can be appealed to the Ministry of Economy of Ukraine
The mechanism is as follows: within 15 calendar days from the date of publication and notification of the employer by means of electronic communication, the decision to refuse to issue a permit, extend its validity, make changes and the decision to cancel, can be appealed to the Ministry of Economy. If the complaint is rejected by the Ministry of Economy, the decision can be appealed in court.
13. The norm on the obligatory coordination with the Security Service of permits for citizens of the russian federation and the Republic of Belarus remains in force
Citizens of other states that pose a threat to state sovereignty, territorial integrity and democratic constitutional order and other national interests of Ukraine may also fall under the SS check.
In practice, such approvals take about a month, so the usual terms for issuing and renewing permits of 7 and 3 working days, accordingly, cannot be applied to citizens of such countries.
Taking into account the norm of the updated version of the Law that it is possible to apply for an extension of a permit no earlier than 50 days before the expiration of its validity, to extend the permit in such a way as to be able to comply with the requirements of migration legislation to submit documents for the extend (renewal) of the residence permit no later than 15 working days before its end (19-24 calendar days) seems almost impossible.
Your comment will become visible after approval.