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