International companies having a presence in Ukraine often need to employ foreign personnel due to specific character of their businesses or due to particular valuable experience of such foreign specialists. At the same time, Ukrainian legislation is designed to procure employment of local citizens in the first place.
Therefore foreigners, who do not reside in Ukraine on permanent basis, can only be employed in Ukraine subject to prior obtaining of a work permit.
A work permit is a document issued for up to 1 year by local division of the State Employment Service of Ukraine (“SES”), which can be prolonged unlimited number of times. Official fee for obtaining of a work permit is 4 minimum wages (around USD 480 as of the date of this publication), prolongation is free of charge.
In general, process of a work permit obtainment can be divided into two main stages – submitting of a vacancy report and filing of the package of documents to the SES.
Purpose of the vacancy report is to prove that existing demand for the workforce (particular vacancy) cannot be satisfied by employing a Ukrainian worker due to specific characteristics or requirements for the job. Taking this into account, it is essential to make sure that a job description includes unique responsibilities and requires specific experience that only a foreign specialist can possess.
Submitting of a vacancy report is not always mandatory. For example, obtainment of a work permit in order to employ a foreign shareholder (founder) of a Ukrainian company to the position of a director of the same company does not require filing of a vacancy report, as such employment is deemed to be reasonable and sufficiently substantiated by itself.
Set of the documents
The set of the documents to be filed for the work permit, inter alia, includes the document confirming qualifications of the candidate (e.g., university diploma), passport of a foreign specialist, power of attorney in case an employer does not file for the work permit himself. Apart from this, the foreigner must undertake medical examination and confirm that he is not under criminal investigation.
Relevant SES considers the documents and issues a work permit within 7 business days after complete set of documents had been filed.
Employing a foreign director
In case the position in question is a director of a company, procedure for employing a foreign specialist has certain peculiarities. In particular, additional attention should be paid to the moment of appointment of a foreign director.
Provided that a foreigner cannot be employed in Ukraine before the work permit is granted, and taking into account that it is impossible for a company to operate without a director, it may be advisable to appoint a resident of Ukraine as a temporary director. After the work permit is granted, a temporary director may be replaced by the foreign specialist.
An employer shall conclude a labor agreement with a foreign employee not later than 90 days after the work permit was issued. A copy of such agreement shall be submitted to the SES.
Finally, since a work permit is obtained for a specific position, the labor agreement shall provide for the same exact position title. Otherwise SES representatives may take a strictly formal approach and conclude that a foreign employee occupies the position either without a work permit at all, or on the conditions which contradict the issued permit.
Employing foreign workers without a work permit or using their work on the conditions other then those provided by a relevant permit, is subject to fines in the amount of USD 1,200 – 2,400 (as of the date of this publication) for each such employee depending on the circumstances.
By Artem Frolov, Associate, and Artur Kozak, Legal Assistant, GOLAW