The Ukrainian authority charged with the issuance of work permits has recently clarified the law relating to the employment of foreigners in Ukraine (Letter of the State Employment Center dated March 24, 2006, No. DTs-12- 1556/0/6-06 "Concerning the Use by Employers of Foreign Nationals and Persons without Nationality as Hired Labor").
The State Employment Center has confirmed that foreigners who come to Ukraine to work can do so only subject to a work permit. However, no work permit is required for employees of representative offices of foreign firms registered by the Ministry of Economy of Ukraine (i.e., in the normal manner applicable to the registration of foreign representative offices). The State Employment Center also clarified that work permits are not required for foreigners working in Ukraine as 'independent contractors'. This is an important point, since there had been uncertainty as to the legal treatment of independent contractors, and particularly the extent of risk of re-characterization of independent contractors as employees by the labor authorities. It follows from the clarification, however, that where foreigners operate in Ukraine as truly independent contractors, they should not require work permits and should not face the risk of reclassification as employees.
This development should be seen as a positive move for businesses wishing to engage foreign nationals. Not only has the process of obtaining a work permit always been a time-consuming process in Ukraine, it is also never guaranteed, as an employer must show that there are no Ukrainian nationals able to perform the work for which a work permit is sought.
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