The nuances and procedure of employment of Chinese citizens in Ukraine

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Ukraine is becoming more attractive to foreign professionals. In 2018, more than 7.5 thousand work permits for foreigners and stateless persons were issued by regional employment centers, and another 4.5 thousand permits were extended. Currently, the number of foreigners working under the relevant permits is 15.5 thousand. Among them, almost one thousand are citizens of the People's Republic of China.

       It should be said that nowadays there is a tendency to increasing of the number of Chinese citizens involved in work in Ukraine. For comparison, as early as 2016, only 359 Chinese citizens worked on the basis of permits in Ukraine. In 2017, the number of issued or renewed permits increased to 510. In 2018, the total number of officially working citizens of the People's Republic of China reached 941, which is almost twice as much as last year.

       Thus, taking into account a relatively small number of people working under the permission of Chinese experts, it becomes clear that they are not capable of creating any tangible competition for Ukrainian citizens. However, it is interesting to know which niches are currently most attractive to Chinese professionals in Ukraine.

In what areas do Chinese citizens work in Ukraine?

         For the most part, Chinese citizens generally work in foreign-invested enterprises. Today, most of these professionals are involved in the field of telecommunication, the provision of ancillary services in the field of oil and natural gas, engineering, geology and geodesy, as well as the provision of technical consulting services in these fields. Part of it is also involved in trade, catering, agriculture and construction, including roads and motorways. Fewer are in the arts, sports, entertainment, financial and insurance industries. By professional groups, almost the majority of Chinese citizens hold positions of managers as well as professionals - that is, a skilled workforce. However, it should be understood that the remuneration of foreigners by law is relatively higher than domestic specialists.

           Mainly Chinese work in high technology enterprises, trade, agriculture and catering. This is due to the fact that in these areas Ukraine requires the involvement of highly qualified specialists with some knowledge and experience, as well as the fact that it is in these areas that foreign investments are made and, accordingly, employers are interested in attracting experienced Chinese specialists.

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Is there a trend towards career growth for Chinese workers in Ukraine?

     Mostly enterprises that employ the work of Chinese nationals are foreign-invested enterprises, that is why it is precisely the interest of the respective employers that determines the career development and professional development of foreign workers. In general, the labor legislation of Ukraine is fully, with a few exceptions, applicable to the work of foreign specialists, and, accordingly, guarantees both career and professional development of foreign hired workers.

        At the same time, more than half of the issued work permits for foreigners and stateless persons are continued in Ukraine, it is now possible to state that there is a desire for foreign workers, in particular Chinese, to continue to work in Ukraine.

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Obtaining the work permission of Chinese citizens in Ukraine: when can they refuse?

For many years the company "Ty i Pravo" Lenivskyi Group" has been dealing with the issue of permits for the use of labor of Chinese citizens in Ukraine. And still - successfully. However, according to official statistics, in 6 cases out of 100 companies are refused to receive or extend the work permits of foreigners.

The reason for refusing the permit in more than 98% of cases is the failure of the employer to justify the suspension of consideration of the application within the set deadline or the recognition by the regional employment center, a letter of motivation submitted by the employer unjustified. That is, the main and most important factor in obtaining a positive decision by an employer to issue a work permit for a foreign employee (or extension of the permit) is legal literacy in the preparation of documents and compliance of documents with the requirements of the Ukrainian legislation. The above also applies to amendments to the current permit. Once the grounds for refusal, extension or amendment of the permit have been removed, the employer may resubmit the application for a permit.

Employers are threatened with fines for violating the Chinese citizens' employment process

Control over the observance of the requirements of the legislation on labor, employment of the population, in particular, and in terms of the use of the work of foreigners and stateless persons by Ukrainian law, is vested under the State Labor Service of Ukraine. Administrative liability is foreseen for the relevant violations of the labor legislation. For example, according to part 5 of Article 53 of the Law of Ukraine "On Employment" in case the employer employes foreigners or stateless persons  without the permission to use the work of a foreigner or a stateless person, he should be fined for each person twenty times of the minimum wage, established at the time of detection of the violation. If, on terms other than those provided for in the said permit, or by another employer, a fine of ten times the minimum wage set at the time of the violation is levied. These fines are imposed by the State Labor Service of Ukraine and its territorial bodies.

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The mechanism of involvement of foreigners is simplified: recent changes in the Ukrainian legislation

On September 27, 2017, amendments to the Law on Employment of Population introduced by the Law of Ukraine "On Amendments to Some Legislative Acts of Ukraine on Removing Barriers to Attracting Foreign Investments", came into force. These changes have greatly simplified the mechanism for issuing permits for the use of work by foreigners and stateless persons, in comparison with previously existing legal acts in the field of employment of foreign employees.

In particular, one of the innovations of the Law is the definition of special categories of foreigners (foreign workers whose employment is interested in domestic employers), for the application of work which the Law provides for the absence of a statutory minimum wage requirement and an extended term, up to three years. For seconded foreign workers, a permit may also be issued for up to three years, which was not previously provided for. In addition, the list of documents for obtaining a permit has been reduced: this is an application from an employer, a photo of a foreigner, a copy of a passport document and a draft employment contract. The employer no longer has to submit a number of documents required previously (certificates of absence of certain illnesses by a foreigner and finding or conviction, documents on education and qualification) - this has simplified the procedure for attracting foreign employers to their required employers. For certain categories of foreigners (IT professionals, creative workers, graduates from the top 100 universities in the world, founders of enterprises, corporate internships, seconded foreign specialists), employers must submit additional supporting documents.

At the same time, the Law provides for a mechanism to protect the national labor market by limiting the period of validity of a permit for foreign employees not classified in special categories to one year, with the right to extend the relevant permit in accordance with the established procedure, as well as by establishing mandatory payment of wages. amounting to at least 5 minimum wages - for foreign employees in public associations, charities and educational institutions, and 10 minimum wages - for all other categories of employees. The extension of the permit became payable: from two to six subsistence minimums for able-bodied persons established on January 1 of the calendar year in which the employer submitted documents (from 01.01.2019 - UAH 3706, UAH 7412 and UAH 11118, respectively).

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What's next?

At present, Ukrainian employers are interested in attracting the highly skilled work of foreign specialists, as it is evidenced by relevant statistics.

So now the Ukrainian government faces the task of attracting foreign investment in the Ukrainian economy, creating joint ventures, in particular in the field of IT technologies, active participation of Ukraine in international cooperation and cooperation in the sphere of production. It is clear that without development of the economic potential of Ukraine, full involvement of Ukraine in global interaction, development and introduction of the latest technologies, capital movement, there will be no attraction of foreign investments in the economy of Ukraine, and, accordingly, there will be no increase in the use of foreign specialists in the national market labor.

It should be noted that, in accordance with paragraph 25 of the Action Plan for 2018 - 2021 for the implementation of the Strategy of State Migration Policy of Ukraine for the period up to 2025, it is envisaged to introduce regular review of normative legal acts in the field of permitting employment system for foreigners and stateless persons in Ukraine. Moreover, it should not be forgotten that Ukraine also faces the issue of returning Ukrainian labor migrants to Ukraine and protecting the national labor market from unskilled foreign labor.

REFERENCE:

1. The procedure for employment of Chinese citizens (foreigners) is now regulated by several legal acts, in particular, a separate section of the Employment Law. Interestingly, according to it, the employment of foreigners is not always required. In particular, they are exempted from the need to obtain a work permit, foreigners who are permanently resident in Ukraine, have acquired refugee status or have been granted immigration permits to Ukraine, foreign media workers. At the same time, it should be noted that the law provides for considerable penalties for employment of foreigners without a permit. Therefore, if the employer is convinced that the foreigner belongs to one of the categories that can be employed without obtaining a Permit, he must have proof of the employee's belonging to the specified category of persons and be ready to provide the said proof to the supervisory authorities.

2. In order to obtain the Employment Permit, the employer must submit to the territorial center of employment (at the place of registration of the employer) a document package, which includes the application in the form established by the CMU, a copy of the pages of the passport document of the foreigner with personal data together with the translation certified in the established order, a color photo card of a foreigner and a copy of the draft employment contract with a foreigner. For foreigners of a special category (graduates from the top 100 universities in the world, IT professionals, creative professionals, intra-corporate transferees, or seconded foreign specialists), additional supporting documents must be submitted.

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