Ukraine: Immigration Evolution In Ukraine

Last Updated: 24 August 2012
Article by Alex Frishberg

The Ukrainian government began to strictly regulate the stay of foreigners, especially those hired by local companies, back in 2009. Prior to that date, many foreigners simply ignored the local registration and customs rules with impunity. However, the Ukrainian "immigration revolution" began with the government's strict application of the rules for applying for and receiving temporary residency status in Ukraine. Thus, the coveted "permission for temporary residency" was born, which became the most sought-after document by foreigners who wished to stay in Ukraine for extended periods of time.

In the beginning, permission for temporary residency was directly stamped in a foreigner's passport by the local immigration authority (OVIR). And, in this land of selective implementation, it really was not difficult to obtain such a stamp at the right price. Next, the local authorities were instructed to issue a separate "passport-like" document with strict accounting standards for those who obtained such document, which facilitated the movement of the immigration rules from the shadow into the transparent realm.

It is well-known today that any foreigner that wishes to obtain a temporary residency permit must have legal grounds to do so. The most common legal ground is official employment in a local legal entity with an accompanying work permit and an immigration visa. Yes, there are others, but such legal grounds are difficult to either substantiate or achieve. Foreign employees of legal entities rejoiced in having a separate document that could be presented to the border authorities and gave them travel rights equal to a Ukrainian citizen. However, the rules effectively ignored two large groups of foreigners with legitimate reasons for being in Ukraine: (a) the spouses and dependents of the temporary residency permit holders and (b) all foreign employees of representative offices, including representative offices and branches of foreign banks. Alas, these poor souls were left in the gray area. Initially, this wasn't a huge problem because there was a visa-free regime for some foreigners, and the border control didn't really count the days of foreigners' stays in Ukraine.

Then, in 2010, the Ukrainian government decided to strictly enforce the dreaded and now wellknown "90 days within 180 days rule". In a nutshell, this rule states that any foreigners without a permanent or temporary residency permit may only stay in Ukraine 90 days within each 180-day period. Effectively, if a foreigner stayed 90 days in Ukraine, they would be required to exit Ukraine for 90 days until they could legally re-enter the country. At last, the border authorities began to maintain a database of foreigners' movements across the border of Ukraine. This strict enforcement affected all foreigners, even those with temporary residency permits, causing significant disruptions along the way. For instance, foreign employees of representative offices and foreign bank branches could not remain in Ukraine to perform their job functions for more than 90 days out of each 180- day period.

Needless to say, this was not very conducive to business and the effectiveness of such employees. Even worse, the spouses and children of foreign employees of legal entities couldn't remain with their principal bread-winner, as they were also subject to the same 90-day rule. This prompted questions like "Why can't my children and I remain with my husband in Ukraine while he does his job and supports us?"

As always, there were ways around this road block, but they were not always ideal for the nonholders of temporary residency permits. For example, your spouse and children could stay with you in Ukraine and even travel with you for the first 90 days of your initial 180-day period. However, once that initial 90 days was coming to a close, you would have to apply for an extension of stay for your spouse and children, but they could not leave Ukraine until the initial 180-day period expired because their extensions would only last until the first time they left the country. So, the solution was 90 days of freedom of travel and 90 days of detention in Ukraine or exile from Ukraine until your spouse and children could apply for a new visa or come in under a "fresh" 180-day period.

This dark period continued until June of 2011, when the new visa rules were issued by the Cabinet of Ministers. Resolution No. 567 "On Approval of the Rules of Executing Visas for Entrance into Ukraine and Transit Via its Territory", dated June 1, 2011, was published on June 10th and finally came into force on September 10, 2011. Resolution No. 567 represented a complete overhaul of the visa rules with the re-categorization of all visa types into 3 simple categories, eliminating the long list of visa types such as IM-1, B, C-2, C-3, P-1, P-2, L, M, N, T, etc. While this simplification was not by any means a major breakthrough, there were subtle signs in the document that things were going to change for the better, especially for one of the aforementioned major groups of foreigners left in the dark.

Briefly, the new visa rules separated visas for foreigners in to three categories: (i) transit visas (visas type B); (ii) short-term visas (visas type C) for tourists and others who stay under 90 days within a 180-day period; and (iii) long-term visas (visas type D) for those with valid legal grounds to stay in Ukraine over 90 days. At long last, foreign employees of representative offices of foreign companies and foreign employees of representative offices and branches of foreign banks were included into the list of individuals who could apply for long-term visas type D. On the basis of this wonderful inclusion, it also finally became possible for these individuals to apply for temporary residency permits.

In the past, you needed an IM-1 visa and work permit to apply for temporary residency; however, IM-1 visas and work permits were not issued to foreign employees of representative offices of foreign companies and foreign employees of representative offices and branches of foreign banks. Resolution No. 567 does not grant these individuals the right to apply for work permits, but they can apply for temporary residency on the basis of officially registered invitations from the Ministry of Economic Development and Trade or the National Bank of Ukraine. Admittedly, the process of receiving invitations from the Ministry of Economic Development and Trade was a bit late in getting up and running smoothly, but this was only a temporary situation.

Thus, Resolution No. 567 cleared a major obstacle in the previous immigration rules. While the new visas type D are, as a rule, only single-entry visas, all holders of such visas are given 45 days upon entrance into Ukraine to legalize their living arrangements by applying for temporary residency permits. Once a temporary residency permit is obtained, a visa type D will "transform" into a multiple entry visa by virtue of the visa holder travelling with his or her temporary residency permit along with his or her passport.

Alas, Resolution No. 567 did not completely clear the skies for all foreigners, as spouses, children and other dependents were left completely out in the cold. After Resolution No. 567 came into force on September 10, these individuals still could only apply for short-term visas type C, which would only allow them to stay in Ukraine for 90 days out of each 180-day period. Again, they were forced to apply for extensions of their stay in Ukraine with the local immigration authorities once they overstayed 90 days, but this meant either staying in Ukraine during the second 90-day period or exiling themselves from Ukraine until the second 90-day period passed.

Lo and behold, in August of 2011, the Ministry of Internal Affairs issued Decree No. 601 "On Approval of the Procedure of Consideration of Applications for the Extension of a Term of Stay in Ukraine of Foreigners and Stateless Persons", which was dated August 23, 2011, registered with the state on September 20, 2011, and came into force on October 3, 2011. Many waited for the official publication of this document to see if the families of foreigners employed in Ukraine could also rejoice. Unfortunately, Decree No. 601 disappointed the expectations of the business community, as it did not resolve the issue of legalizing spouses' and children's ability to live and travel together with their principals. Instead, it was aimed at curbing illegal immigration.

On the other hand, Decree No. 601 does clearly provide a procedure for extending one's stay in Ukraine should an individual have a substantiated need to stay over 90 days. One of the substantiated needs enumerated in the Decree was the fact that a visitor "has a familial relationship with...a foreigner...who has a temporary residency permit". Thus, by virtue of Decree No. 601, these individuals have the right to request the immigration authorities to consider the extension of registration for even more than 180 days (a small step forward in this evolution process). However, once again, the "detention or exile" issue was not resolved for the period of spouses' and dependents' stay after 90 days, thereby still hampering these individuals' ability to freely travel with their principals.

Finally, in September of 2011, the Parliament passed a revamped Law No. 3773-VI "On the Legal Status of Foreigners and Stateless Persons", dated September 22, 2011. While this Law retains much of the same nature as its predecessor, the diminutive yet significant novelty of this law was the addition of the following definition: "family members of foreigners and stateless persons – a husband (wife) and minor children, including minor children of a husband (wife), disabled parents and other individuals, who are considered family members pursuant to the laws of the country of origin."

Law No. 3773 not only reiterates that foreign employees of legal entities and representative offices may obtain temporary residency permits, it distinctly states that foreigners, who come to Ukraine for purposes of reunification of families with the aforementioned individuals and "obtained a temporary residency permit" are considered those who stay in Ukraine on legal grounds. The temporary residency permits issued to family members are issued for the same duration as the principal's work permit and/or temporary residency permit. At last, the Ukrainian Parliament finally gave its clear order to the local immigration authorities to grant family members the same immigration rights as their principals. The local immigration authorities had until December 25, 2011, to organize and prepare themselves for the influx of temporary residency permit applications in the New Year.

While this may have seemed overwhelming to the unfortunate bureaucrats in the immigration system, it was a wonderful Christmas present for foreigners, who have been trying to live with and support their families while on permanent post in Ukraine. Surprisingly, the Ukrainian Parliament even showed a bit of progressive (or, perhaps, inadvertent) thinking by adding the phrase to the definition of family members "other individuals, who are considered family members pursuant to the laws of the country of origin". Arguably, the Ukrainian Parliament has now opened the door and welcomed the immigration registration of same-sex couples from those countries where samesex marriage is legal. Of course, only time will tell how the local immigration authorities react to and implement this refreshingly indiscriminate provision.

As could be expected, not everything was running as effortlessly as set forth in the laws. Until February of 2012, the Ukrainian consulates and immigration authorities did not have the proper internal regulations in place to issue visas type D and temporary residency permits to spouses and dependants. While these authorities scrambled to implement their internal regulations, many spouses and children were left without resolution to their immigration problems. At the time, nobody could have dreamed that a new piece of legislation described below would be forthcoming to resolve this issue.

While the authorities were in the midst of implementing the proper visa and temporary residency procedures, another troublesome issue for foreigners was resolved. On February 15, 2012, the Cabinet of Ministers, by its Resolution No. 150, revamped its procedure for extending the stays of foreigners over 90 days in case of legitimate need. It is difficult to count the number of foreigners who wish to overstay 90 days in Ukraine, but do not hold work permits or temporary residency permits. While this is not a novelty (there was always an extension procedure in place), Resolution No. 150 gives a number of concrete reasons allowing a foreigner to legitimately seek an extension of stay, such as medical treatment, pregnancy, sickness of a family member, funeral arrangements, pending applications for immigration or citizenship, etc. Extensions in these cases will be issued for the period of time necessary to resolve these issued, but no more than 180 days from the last date of arrival to Ukraine.

Resolution 150 also clarified that foreigners, who applied for visas type D but did not succeed in obtaining temporary residency within the required 45-day period, may apply for an extension, if they are able to provide good reasons for failing to obtain temporary residency permits within the said 45 day period. Such extensions are issued for a period of up to 1 month only, and require the submission of supporting documents for the cause. Note, however, that Resolution No. 150 does not provide foreigners a "carte blanche" to apply for extensions of stays for any reason whatsoever. In other words, it is up to the foreigner to prove that the reason for extension is absolutely necessary and not due, for example, to ignorance of the rules or the simple wish to remain in Ukraine.

Finally, the Cabinet of Ministers approved Resolution No. 251 on March 28, 2012, which sets forth a new procedure for the issuance of temporary residency permits. While this new resolution was necessary to tie up the loose ends for spouses and dependents of temporary residency permit holders, it takes a step back in the evolution process.

Starting from May 15, 2012, principal temporary residency permit holders will be required to submit documents to the immigration authorities which evidence their financial stability and capability of supporting their spouses and dependents during their stay in Ukraine. This document may either be proof of sufficient cash in Ukraine (not recommended in this country), a bank statement from the permit holder's account, a guarantee, proof of payment for food, accommodation and travel, etc. It is not clear whether the permit holder's employer may provide the guarantee on his or her behalf. Moreover, in order to register children for temporary residency, their original birth certificates must be presented to the immigration authorities (along with a copy thereof certified by Apostille or otherwise duly legalized).

Perhaps worst of all, thanks to Resolution No. 251, the application for the extension of a temporary residency permit now must be submitted no later than 15 days prior to expiration of the permit (as opposed to 3 days in the previous legislation). This will complicate the business travel plans of many foreign executives and managers with temporary residency permits, as they will be grounded for 15 days until they receive their new permits. Moreover, any changes to the initial application documents must be reported to the State Immigration Service within 10 days, including changes to personal (passport, residential address in Ukraine, etc.) and corporate documents (certificates of registration due to a move to a new legal address, registration of new company director or head of representative office, etc.).

In conclusion, while the Ukrainian immigration rules may still be far from perfect, the year 2011 definitely will be remembered by law-makers and law practitioners alike as a year of painful immigration evolution. Fortunately in 2012, foreigners have obtained clear and concise (and complicated) Ukrainian immigration requirements, allowing them to plan more carefully and predictably for their future and the future of their families in Ukraine.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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