On 5 July 2013 the new Order of issuance, prolongation and annulment of permits for employment of foreigners and stateless persons, approved by the Resolution of the Cabinet of Ministers of Ukraine No. 437 dated 27 May 2013 (hereinafter - the “Order”), has entered into force.
The first stage of the process of obtaining of permits for the employment of foreigners and stateless persons (hereinafter - the “permit”) is the provision of the territorial authority of the State Employment Service (hereinafter - the “employment centre”) with the information on the position available - not later than 15 calendar days prior to the application for the permit.
The next stage is the preparation by the employer of the documents to be submitted to the respective employment centre. The Order is aimed at simplifying the process of obtaining of permits and reducing the amount of paperwork associated with the application process. As a result, companies that are planning to obtain permits for employment of foreigners and stateless persons (hereinafter - the “foreigners”) are no longer required to submit the following documents to the respective employment centre:
• Justification of the expediency of employment of the foreigner and of the possibility of establishing respective conditions of his/her work and stay;
• Certificate from the state tax authority on payment of taxes and fees (compulsory payments) by the employer;
• Certificate from the employment centre that the employer has no indebtedness towards the Fund of mandatory state social insurance of Ukraine against unemployment;
• Receipt of payment of the fee for the consideration of the application;
• Copy of a draft employment agreement (contract) certified by the employer;
• Duly certified copy of the articles of association of the employer.
At the same time, although the justification for the employment of foreigners has been withdrawn from the list of documents to be submitted for obtaining of permit, the employer will still have to deal with it in the process of obtaining of permit.
In fact, the justification for the employment of foreigners is needed to prove the fact that the foreigner belongs to thegroup of persons with respect to whom a work permit may be granted. In particular, these categories are:
• foreigners or stateless persons, provided that in Ukraine (region) there are no qualified workers capable of performing the appropriate type of work;
• foreigners or stateless persons, provided there is sufficient justification of the expediency of employment thereof, unless otherwise provided for by international agreements of Ukraine, approved by the Verkhovna Rada of Ukraine.
It should be noted that the Order contains additional, as compared to the previous rules, ground for refusal to issue or prolong the permit - namely, the availability of skilled workers in Ukraine(region) that may be employed by the employer for the stated position and meet the requirements specified by the employer within the provided information on the position available, and the refusal of the employer to employ citizens of Ukraine, who were suggested by the regional employment centres for employment.
In this context, it should be noted that the use of labour requires no additional justification, if the foreigner:
• applies for position of a chief officer, deputy chief officer or any other managerial position provided that such foreigner is a founder or a cofounder of a company, institution, organisation;
• is the subject of copyright or neighbouring rights and is invited to work in Ukraine for exercising of such rights.
Moreover, instead of the previously required filing of the copy of the draft employment agreement (contract), the new procedure provides for the obligation of the employer, in case of the adoption of the positive decision regarding issuance of the permit by the respectiveemployment centre, to provide the employment centre with a copy of the concluded employment agreement (contract), certified by the employer, within 3 working days after the conclusion thereof. Failure to file the document shall serve as a ground for annulment of the permit.
It should be noted that, while reducing the number of documents required from the employer, an additional requirement was added to a list of documents that have to be obtained by a foreign applicant. Now the package of the documents to be submitted to the employment centre should include a certificate issued by the health-care establishment to certify that the foreigner does not suffer from chronic alcoholism, substance abuse, drug abuse or any other inflectional disease according to the list as approved by the Ministry of Health.
It should also be noted that the application form is provided in the Annex to the Order.
Besides amending the requirements to the package of the documents, the Order also changes the deadlines of the application process. Thus, the term for the review of the documents and adoption of the decision on issuance of a permit, extension of the previously issued permit or refusal to issue a permit is reduced from 30 to 15 calendar days starting from the date of registration of documents.
It should also be noted that, in comparison with the rules previously in place which envisaged a pre-payment of the service fee for the mere fact of consideration of documents, the new Order providesthat only in case when the decision on issuance of the work permit is made,should the employer pay the fee for services of the employment centre in the amount of 4 minimum wages within 30 calendar days after such decision has been made.
The Order has also reduced the number of the documents the employer has to submit for prolongation of the permit. It will now be necessary to submit solely two colour photos, an application form and a certificate issued by the Ministry of the Interior Affairs to certify the foreigner is not subject to any criminal proceedings. Other documents, as specified in the Order, are only to be provided if the data contained therein have been changed during the permit’s validity term.
Finally, the Order clarifies the previously unresolved issues regarding the grounds for and procedures of issuance of aduplicate permit.