NEW RULES ON LIMITS ON TERMS OF STAY OF FOREIGNERS IN UKRAINE
Members of the U.S.-Ukraine Business Council USUBC) are very concerned about the new stiff, severe rules formembers of the international community working in Ukraine.
U.S.-Ukraine Business Council (USUBC)
Wash, D.C., Thu, May 21, 2009
WASHINGTON, D.C. - The U.S.-Ukraine Business Council (USUBC) is receiving many messages of sincere concern and serious complaints about a recent action taken by the Cabinet of Ministers in Ukraine putting new severe rules on the limits of terms regarding the stay of foreigners in Ukraine (members of the international community in Ukraine).
Many USUBC members think the recent action by Ukraine'sCabinet of Ministers needs to be amended quickly and made much more friendly to the international community working in Ukraine.
The details about this very questionable and controversial action on the part of Ukraine'sCabinet of Ministers can be found below in legal newsletters published yesterday by two USUBC members, the Baker & McKenzie and Asters law firms in Kyiv.
You will alsofind below an article quoting Ukraine's Minister of Labor and Social Policy who told the Interfax-Ukraine news agency, "Yes, we have adopted this bill… we actually limited foreigners' access to our employment, thus defending our people's workplaces and providing them with career opportunities." An article aboutthis issue from the Kyiv Post is also found below.
USUBC would like to hear immediately from more of our members and friends about the consequences of these new stiff and restrictive rules for the international community working in Ukraine and what actions are recommended in terms of contacts with the Cabinet of Ministers. Please write to mwilliams@usubc.org. Let us hear from you.
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1. NEW RULES ON LIMITS ON TERMS OF STAY OF FOREIGNERS IN UKRAINE
Baker & McKenzie law firm, Kyiv, Ukraine, Wed, May 20, 2009
KYIV - On 6 May 2009, the Cabinet of Ministers of Ukraine amended the "Rules for Entry of Foreigners and Apatrides into Ukraine, Their Transit Through
and Exit From Ukraine", which were approved by Resolution of the Cabinet of Ministers No. 1074, dated 29 December 1995 (the "Rules"). Those amendments (the "Amendments") became effective as of 15 May 2009.
1. NOT MORE THAN 90 DAYS STAY WITHIN 180 DAYS
According to the new wording of Article 19 of the Rules, except for holders of certain limited types of visas (e.g., student visas, work visas), foreigners may stay in Ukraine only as follows:
(1) a foreigner from a country, the citizens of which need a visa, may stay for the term of the validity of his/her visa, but for not more than for 90 days within 180 days counting from the date of the first entry; and
(2) a foreigner from a country, the citizens of which do not need a visa, may stay for up to 90 days within 180 days counting from the date of his/her first entry, unless otherwise stipulated by a bilateral agreement to whichUkraine is a party. This limitation applies even if the visa (i.e., a business visa, a private visa, etc.), which has been issued to the foreigner, is valid for 6-months, 1-year, or longer.
This limit also applies to citizens, i.e., both tourists, private and business visitors, etc., of the EU, Japan, the USA, and all other countries, for which the requirement for a visa has been waived (since 2005) for visits of less than 90 days. Therefore, it will not be possible any longer to enter Ukraine for 89 days, to exit for a brief period, and, in a couple of days, to re-enter for the next 89 days.
If a foreigner needs to spend more than 90 days within the above-mentioned 180 days period, then an application for an extension must be filed within the appropriate division of the Ukrainian Ministry of Interior at least 3 business days before the expiration of the 90 days.
If such extension is granted, it will be valid only for a continuous stay in the country (i.e., until the expiration of the term of the individual's visa or of another allowed period, as the case may be), but not for re-entry into Ukraine. If the extension is not granted, then the foreigner must leave the country before the 90-days period comes to an end.
2. ALERT TO CITIZENS OF WTO MEMBER COUNTRIES
The Amendments have abolished the third item in Article 19 of the Rules, which previously allowed citizens of WTO member countries to spend up to 180 days within a year in Ukraine.
According to oral information from a responsible officer of the State Borderguards Service, those foreigners from WTO member countries, who have already spent more than 90 days in Ukraine starting from 1 January 2009 (in reliance on the now-abolished third item of Article 19 of the Rules), will not be exempted from the abovementioned limitations, and the records indicating the duration of their stays in Ukraine will not be reset.
3. ALERT TO FOREIGN EMPLOYEES OF REPRESENTATIVE OFFICES
Foreigners, who are employees of Ukrainian legal entities, are eligible to obtain Ukrainian work permits, work visas, and temporary residence permits. The combination of these three documents will allow them to enter/exit Ukraine as many times and at such times as may be necessary within the term of validity of their work permits.
In contrast, foreigners, who are employed by Ukrainian representative offices of foreign companies, are not eligible for a Ukrainian work permit, in the oral opinion expressed by a responsible officer of the Kyiv City Employment Center (which opinion is not necessarily grounded on any specific Ukrainian legislation and, as such, is subject to challenge before the Ukrainian courts).
As a result, a foreigner employed by a representative office will not be able to obtain a work visa and a temporary residency permit, for which a work permit is a prerequisite, at least not unless and until a Ukrainian court will rule that such foreigner is eligible for a Ukrainian work permit.
As a result, such foreign employees of representative offices will not be exempted from the above mentioned restriction on the number of days that they can spend in Ukraine, but rather will be allowed only to stay 90 days within 180 days.
4. CONSEQUENCES OF SPENDING MORE THAN 90 DAYS IN UKRAINE
As we have noted in our earlier Legal Alerts, the State Borderguard Service has launched a computerized system for recording each foreigner's entries
into and exits from Ukraine. This system automatically marks the commencement of the 180 day period upon a foreigner's entry into Ukraine and calculates the number of days spent by the foreigner in Ukraine. Both the date of entry and the date of exit count towards the number of days spent in Ukraine.
If a foreigner spends more than 90 days within 180 days (without obtaining an extension of stay mentioned above), then such foreigner may be subject to a fine of between UAH340 and UAH680 and, in addition, may be banned from entering Ukraine for a period of between 6 months and 5 years.
If a foreigner exhausts the 90 days within a 180 day limit of stay, such foreigner will not be permitted to re-enter the country until the 180 day limit expires. Thus, all foreigners, who do not have temporary residence permits (or permanent residence permits), should very carefully calculate the number of days which they spend in Ukraine and plan their visit(s) and the duration of their stay(s) in the country accordingly.
NOTE: Baker & McKenzie - CIS, Limited, Renaissance Business Center, 24 Vorovskoho St., Kyiv 01054, Ukraine
Tel: +380 44 5900101; Fax: +380 44 5900110, www.bakernet.
For More Information: Mariana Marchuk, Associate, +380 44 590 0101; mariana.marchuk@bakernet.com or
Oksana Vynarchyk, Associate, +380 44 590 0101; oksana.vynarchyk@bakernet.com
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2. UKRAINE: NEW REQUIREMENTS FOR ISSUANCE OF WORK PERMITS FOR FOREIGNERS
ASTERS law firm Newsletter, Kyiv, Ukraine, Wed, May 20, 2009
KYIV - On 15 May 2009, the new Regulation on the Issuance, Extension, and Annulment of Work Permits for Foreigners and Stateless Persons approved by the Cabinet of Ministries (the "Regulation") came into effect. It significantly expands the obligations of foreigners and their Ukrainian employers in regards to opportunities for a foreigner to be employed in Ukraine.
In particular, Regulation enlarges the list of required documents for work permit obtainment. Previously it consisted of such documents as: a letter of application, justification of employment of foreigner, employer's Charter and the certificate of the State registration, draft employment contract, a duly certified copy of the Foreigner’s diploma evidencing his/her education, with a notarized Ukrainian translation, employer’s good standing certificate issued by the relevant tax authority and some other.
Now a foreigner must additionally present a certificate confirming that he/she is not under a criminal investigation or has not been convicted of a crime in the country of residence at the time of the work permit application.
Moreover, an "expat employees" (transferred from offices of the company in other countries) and a person performing services in Ukraine without a corporate presence must submit a formalized decision of a foreign company to transfer the foreigner to Ukraine along with a copy of an employment contract, indicating the projected term of the foreigner's work in Ukraine, or a copy of the contract on direct supply of services in Ukraine. A work permit for such employees shall not exceed 3 years.
An employer will have to pay a higher state fee for issuance of a work permit in the amount of UAH 2,500 (before it was UAH 170) and a fine if a foreigner commences working prior to obtaining a permit in the amount of UAH 12,500 (before it was UAH 850).
The Regulation introduced additional grounds for a refusal to issue, to extend or to annul a work permit. Additionally to the grounds provided by the superseded regulation, now 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.
It appears that the Regulation makes the procedure of obtainment of work permit more thorough and complicated for employers.
NOTE: Asters law firm, Leonardo Businesses Center, 19-21 Bohdana Khmelnytskoho Stl, Kyiv 01030, Ukraine, Tel: 380 44 230 6000; Fax 380 44 230 6001; info@asterslaw.com; www.asterlaw.com
Armen Khachaturyan, Senior Partner, armen.khachturyan@asterlaw.com; or Oleksandr Padalka, Partner, oleksandr.padalka@asterlaw.com.
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3. UKRAINE GOVERNMENT STIFFENS JOB MARKET
ACCESS FOR FOREIGNERS, SAYS LABOR MINISTER
Interfax Ukraine, Kyiv, Ukraine, April 8, 2009
KYIV - The government has adopted the bill limiting access to the Ukrainian job market to foreigners, Minister of Labor and Social Policy Liudmyla Denisova has said.
"Yes, we have adopted this bill… we actually limited foreigners' access to our employment, thus defending our people's workplaces and providing them with career opportunities," she told the Interfax-Ukraine news agency in an interview ay the end of a cabinet meeting on Wednesday.
As reported, during its meeting on Wednesday the Cabinet of Ministers discussed a bill on issuing, extending and cancelling the work permits of foreigners and people with no citizenship.
"Employers have the right to hire the foreigners if they are not subject to criminal investigation… [and] we have adopted several limitations to protect our people," Denisova said. The minister also said that the earlier bill existed but with no "stiff restrictions."
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4. UKRAINE: MORE BUREAUCRATIC HEADACHES AHEAD
AS WORK RULES TIGHTEN FOR EXPATRIATES
New rules designed to weed out criminals, undesirable foreigners
By Yuliya Popova, Kyiv Post, Kyiv, Ukraine, Friday, April 24, 2009
KYIV - Many foreigners working in Ukraine may mark International Workers Day on May 1 worrying about extra paperwork they will need to stack up to obtain work permits. New restrictions on employment go into effect on May 14 as a part of anti-crisis initiatives to protect the national labor market.
On April 8, Ukraine's government adopted a resolution setting out the new entry and stay rules for foreigners. The constraints are more numerous, with new requirements for criminal background checks and certification of university diplomas in the respective countries. Those seeking to extend their stay will have to go through the same procedure.
Americans and most European citizens don't need to certify their diplomas. More than 90 countries that signed onto the Hague Convention of 1961 get an exemption from this rule. Canadians, Germans, as well workers from some Asian, African, Arab and Latin American countries, have to comply.
But now all foreign applicants will have to obtain a police check from their respective countries or from Ukraine if they already live here. The new rules appear to be an attempt to keep out illegal workers and migrants from poorer nations. But the existing bureaucracy overwhelming itself will remain in place.
It will still cause headaches for most expatriates working in Ukraine, the completely legal and those on the fringe. There are about 12,500 foreign nationals registered at employment centers today. But there are no official estimates for many others who make Ukraine home as illegal workers, business visa holders, company owners and permanent residents.
Authorities have also raised fines for violating immigration rules fourfold to Hr 3,400. An application fee for a work permit has surged from Hr 170 to Hr 2,500. Labor authorities think the new regulations will keep out unskilled personnel, thereby opening more opportunities for work-hungry Ukrainians. Employers complain the restrictions will make it harder for key staff, including managers, to stay legal in Ukraine.
The Presidential Secretariat added fuel to the fire last month, threatening to re-impose a visa regime with the European Union, leaving foreigners wondering if they are still welcome.
The devil is not as black as he is painted, said Illya Dovzhenko, head of the inspection department at the State Employment Center. This regulation is like a sanitarian, Dovzhenko said. It will separate the scum and leave what is really necessary for the economy of this country.
Dovzhenko said the employment authorities would seek police background checks from all foreign applicants to keep criminals out. A lot of delinquents are flocking to Ukraine, mainly from our brotherly countries like Russia, Belarus and Georgia. Also, a lot of Turkish citizens are dodging the draft here.
While police checks make sense, the requirement to legalize diplomas seems less defensible to employers. Each country has its own conditions. It means numerous trips to Ukrainian embassies in the country where it [a diploma] was issued, said Yulia Kadibash, tax and legal services manager at the Kyiv offices of PricewaterhouseCoopers.
Dovzhenko, however, insisted that certified documents would stop fraudsters from taking jobs for which they were not qualified. You see, they [foreign applicants] take a paper clipping in Arabic, translate it the way they like and pose as masters in law. They get hired when our specialist with higher education cant get a job, he said, defending the new regulations. Dovzhenko added that a certification process takes only a few days and costs $15.
Employers want the entire procedure for legitimizing foreign workers to be clarified. There are so many ifs and buts that even a specialist sometimes gets confused, said Oksana Lapii, senior consultant at the Kyiv offices of Ernst & Young. Trying to unthread a chain of work permits, visa and registration rules without an expert - may take weeks, if not months.
THE SCHEME IS MAD
The scheme is mad, said Yuriy Gorelikov from Veles Solution, whose company helps register foreign nationals for work.
To feel bulletproof in Ukraine, one has to go through three stages. It involves getting a work permit from an employment center, then an IM-1 visa from a Ukrainian consulate abroad, and then a temporary registration certificate. It is issued by the Office for Citizenship, Immigration and Registration of Physical Entities, which is still better known by its acronym back in Soviet days, OVIR.
But only 10 to 20 percent of foreigners use [this option], because it is way too bureaucratic, said Gorelikov.
Many foreigners just paid fines rather than stand in line with stacks of paper, traveled in and out every 90 days, or exploited one of many other loopholes. Last May, however 180-day stays became the legal maximum within a year without a visa.
Our legislation contradicts itself on many occasions. To get registered, for instance, a foreigner must pass an AIDS test, even though Ukraine has ratified international conventions on human rights, which ban this requirement. Then, an applicant must officially register at a Ukrainian address. But Ukraine no longer has temporary registration, which makes it a problem for landlords. They don't want [strangers in] their properties on a permanent basis, said Gorelikov.
Kadibash, from PricewaterhouseCoopers, said the biggest headache is legitimizing the families of officially employed foreigners. Those coming from countries with visa-free entry can stay in Ukraine for 90 days during their first half year. To stay longer they have to obtain a legal permit. It gets even worse after that.
Its a delirious situation. A person comes with a family. They have plans to send kids to a local school. But within a half year, they have to leave the country and come back only after another six months, said Kadibash.
The general rules of entry for family members indicate vaguely that partners of foreign employees can apply for a private visa for an extended stay. However, it shall be issued up to six months, explained Ernst & Young's Lapii. This visa cannot be extended. After it expires one shall have to receive it again in the Embassy of Ukraine of the respective country.
Until last December, restrictions on the length of stay were often ignored by the immigration service. People used to get work permits but violated customs control. No one really counted how many days they spent here over a year, said Gorelikov, from Veles Solutions.
Dovzhenko, from the employment center, said the economic downturn led to the need to tighten up rules. When the crisis hit us, Ukrainian migrants started coming back from abroad and we did not have enough jobs to offer them, he said.
Now foreigners will be watched closely. New computerized systems tracking visas and duration of stay were installed at international airports. The next stage is introduction of biometric control in 2010. The prototype biometric scanner was unveiled in Boryspil airport on April 23.
Victor Chumak, head of political analysis and security programs at Kyivs International Centre for Policy Studies, a think tank, said the new regulations and tighter controls are simply reciprocation. Its retaliation for tighter rules on travel by Ukrainians to the European Union, among other countries.
I think its done on equal footing with other countries, he said. To become legal in the EU, Ukrainians will have to provide the same number of documents. Their [authorities] imagination is not very rich, so usually they just adapt European regulations in Ukraine, said Chumak. But he said talks to revive a visa regime with the EU have no serious fiber: I think these jokes or threats are inadequate and unnecessary.
Other measures - fees, police checks and electronic tracking in airports - are adequate improvements already used in many countries. Employment experts, however, warn that the new regulations might enhance the already vibrant corruption at visa and registration offices.
LINK: http://www.kyivpost.com/nation/40154
