The influx of foreign nationals seeking to work in the Philippines has become a cause for concern for Filipinos, with a big majority of respondents in a recent survey by the Social Weather Stations saying they are worried about this development.
As a general rule, the issuance of alien employment permits (AEPs) and special working permits (SWPs) should only apply to those with highly-specialized skills or in cases where there are no available Filipinos who can do the job.
The departments of Justice, Foreign Affairs, Finance, Labor and Employment, and Environment and Natural Resources; Bureau of Internal Revenue, Bureau of Immigration, Professional Regulation Commission, and National Intelligence Coordinating Agency (NICA) have recently issued Joint Memorandum Circular 001, s. 2019 or “The Rules and Procedures Governing Foreign Nationals Intending to Work in the Philippines.”
The NICA is mandated to conduct background investigations on foreigners to be employed to forestall possible national security implications on their entry in the Philippines.
Under the new rules, the foreigners need to secure a tax identification number from the BIR to ensure payment of appropriate taxes and a “no derogatory record/information” from NICA and NBI.
The joint MC aims to harmonize the various regulations and guidelines governing the issuance of the following to foreign nationals intending to work in the Philippines: the AEP issued by the DOLE; special temporary permit by the PRC; SWP, provisional work permit and 9(g) visa by the BI; 9(g) and 47(a)(2) visa by the DFA; authority to employ alien (AEA) and 47(a)(2) visa by the DOJ; authority to hire foreign national (AHFN) by the DENR-Mines and Geosciences Bureau.
The joint MC outlines the process in applying for a 9(g) visa within or outside the Philippines. The 9(g) or pre-arranged employee visa commercial is the most common type of work visa availed by foreign nationals engaged in gainful employment in the Philippines. This visa entitles the holder multiple entries and exits into and out of the country while working with a company registered or licensed to do business and existing under Philippine laws. A requisite to this visa is the AEP issued by DOLE.
Consistent with existing regulations, all foreigners are required to obtain the proper work visa and/or permit through a local petitioner or sponsor. The joint MC now expressly requires that the foreigner must enter into an employment contract with the local sponsor. This appears to align with the new rules on the issuance of an SWP, which is applicable when no employment relationship exists between the foreigner and the sponsor.
The joint MC also reiterates the requirement for the sponsor to obtain an AEP; an AEA, when it is engaged in a partially nationalized industry; and an AHFN, if it is engaged in mining.
The foreign national must also acquire an STP if he/she intends to practice a regulated profession in the Philippines (i.e. doctor, architect or accountant).
All government agencies issuing work-related permits, visas, and authorities are now required to secure certificates of no objection from the DOLE prior to the issuance of said work permits. This requirement does not apply to the DOJ in issuing an AEA and the BI in issuing an SWP. Should there be an objection, the DOLE will conduct a labor market test to determine whether a Philippine person is competent, able, and willing to perform the job.
Foreign workers cannot be given a work permit should a Filipino signify interest to perform the available job offered to the foreigner.
A technical working group, composed of representatives from the government offices who are signatories to the joint MC, will develop an inter-agency database system accessible to all members and DOLE will be the administrator of the database.
Pending the development of a database, the concerned government offices are required to submit to DOLE, through the Bureau of Local Employment and NICA, a monthly report on the permits issued for consolidation.
A joint inspection team, composed of the DOLE, BI, and BIR, was also created to conduct joint inspection of establishments employing foreign nationals to ensure compliance with labor, immigration, and tax laws.
The joint MC took effect Nov. 1, 2019.
END/Patrick T Rillorta