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Work permit
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Article 8 of the Labor Code provides for equal employment opportunities for foreign nationals working in Ukraine. This Article provides that the employment relationships of foreign nationals, who are working for Ukrainian companies or organizations, are governed by the law of the country of the employing party (i.e., Ukraine) and international agreements. In the event that an international agreement, to which Ukraine is a party, establishes rules different from those established by the applicable Ukrainian labor legislation, then the provisions of such international agreement will take precedence.
The Resolution of the Cabinet of Ministers of Ukraine "On the Procedure for the Issuance, Prolongation, and Annulment of Work Permits for Foreign Citizens and Stateless Personsdated 8 April 2009 (the Work Permit Resolution), provides that, as a general rule, any foreign national intending to be employed in Ukraine must, before his/her commencement of such employment, apply for and obtain a work permit, unless otherwise provided by an applicable international agreement of Ukraine. Although, it is not clearly envisaged in the law, the foreigners employed by the Representative Offices are not allegeable for the work permits. Instead, they must obtain the service cards from the Ministry of Economy of Ukraine with a term of validity of up to three years.
To date, Ukraine has not entered into any international agreement with any foreign country providing for the employment of nationals of such foreign country in Ukraine without a work permit. Although Ukraine is a party to certain international agreements on labor law issues with a number of CIS countries, none of these agreements allows a foreign national to work without a work permit in Ukraine.
Under the Work Permit Resolution, work permits are issued to foreign nationals by the relevant Ukrainian employment center, provided that: there are no qualified Ukrainian nationals in the relevant area who are suitable for the position in question; or there are significant grounds for the employment of such foreign nationals as specialists. It should be noted that the applicable Ukrainian legislation does not provide a definition of the term "significant grounds." At the same time, a document outlining such grounds should be filed, together with other required documents, with the relevant employment ccnter. Presumably, I he education and expertise of the foreign national in the relevant area will be taken into account in evaluating whether or not to issue a work permit to such foreign national employee.
The Work Permit Resolution expressly requires that a work permit must be obtained for foreigners, who perform serviees or works pursuant to contracts between their foreign employers and Ukrainian customers. Also, intra-corporate transferees and persons performing services in Ukraine without establishing commercial presence in Ukraine must have work permits. Allowing a foreigner to commence his/her activities in Ukraine, prior to obtaining a work permit for the specific role that the foreigner is intended to perform, will trigger the imposition of a fine in the amount of 20 minimum monthly salaries.
Work permits are issued for up to 1 year (up to 3 years for intracorporate transferees and persons performing services in Ukraine without establishing commercial presence in Ukraine). Work permits may be extended by filing an application at least one month prior to the expiration of the current work permit.
Under the Work Permit Resolution, applications for work permits will be considered by a commission consisting of representatives of the Ministry of Interior, the State Security Service, the State Borderguards Service, the State Tax Service, and other relevant authorities (as defined in a subsequent regulation to be issued and approved by the Ministry of Labor). After the consideration of the application by the commission, the relevant regional employment center must issue the work permit (or give its written refusal to issue it) within 30 calendar days from the date of the filing of the application. The state fee for the consideration of a work permit application amounts to 4 minimum monthly salaries.
Strict compliance with the Ukrainian visa requirements has now become especially important, because the Work Permit Resolution has expanded the list of grounds for the refusal to issue a work permit or to extend its term as well as for the annulment of a work permit. Among other reasons, a work permit will not be issued if, within the last 12 months, the foreigner was denied an IM-1 visa, or his/her work permit has been annulled, or he/she was expelled from Ukraine. The annulment of a work permit may result from a migration authority's decision to expel the relevant foreigner or to shorten the term of his/her
stay in Ukraine (which is possible for visa regulation violations, e.g., the failure to obtain the required IM-1 visa).
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