Under Article 40 of the Labor Code of the Philippines, as amended, any foreign national seeking admission to the Philippines for employment purposes and any domestic or foreign employer who desires to engage a foreign national for employment in the Philippines shall obtain an employment permit from the Department of Labor and Employment.
The Alien Employment Permit (AEP) is a permit issued to non-resident alien or foreign national seeking admission to the Philippines for employment purposes after a determination of the non-availability of Filipino citizen who is competent, able and willing at the time of application to perform the services for which the foreign national is desired.
Department of Labor and Employment (DOLE) Secretary Silvestre H. Bello III issued Department Order 221, Series of 2021 or the “Revised Rules and Regulations for the Issuance of Employment Permits to Foreign Nationals” was published on April 20, 2021 issues of the Business World and Philippine Star which means that the Department order in pursuant to Section 33 of the same DO and Section 18, Chapter 5, Book 1 of the Administrative Code 1987 that after 15 days of publication, DOLE DO 221-21 took effect last May 6, 2021.
DOLE D.O. 221-2021 seeks to ensure that local jobs are protected and to regulate the employment of foreign nationals to safeguard the interest of Filipino workers; that the employment of foreign nationals in the Philippines shall be subject to the determination of non-availability of a Filipino citizen who is competent, able and willing to perform the services for which the foreign national is desired; and to establish and maintain a registration and/or work permit system for foreign nationals intending to engage in gainful employment in the Philippines and afford them same protection as to Filipino labor regardless of sex, race or creed and regulate the relations between workers and employers.
The Revised AEP Rules provide for new guidelines for filing dates, processing time, permit fees, penalties, documentary requirements, and employers’ duties, among others. The AEP is one of the permits that must be secured by foreign nationals to legally work in the Philippines.
The significant changes in the application of AEP are: first is the employer participation in the Labor Market Test which is the mechanism to determine the non-availability of a Filipino citizen who is competent, able, and willing at the time of application to perform the services for which the foreign national is desired.
Under the expanded LMT, employers are now required to cause the publication of the job vacancy being applied for the foreign national in a newspaper of general circulation in the region where the company or establishment is located at least 15 calendar days prior to the application for AEP.
The proof of publication of the job vacancy, together with a duly notarized affidavit stating no application was received or no Filipino applicant was considered for the position, must be submitted as a new documentary requirement in the new AEP application. The LMT shall also be conducted by the DOLE Regional Office (DOLE RO) concerned in cases where a foreign national is assigned an additional position during the validity of the AEP. This would also entail the filing of the new contract of employment with the DOLE RO within 15 working days from date of appointment. The employer shall also be required to cause the publication of the assignment of the additional position and other details.
Second is the reduced grace period to file application and increased processing time which means that applications for AEP must be filed at DOLE RO concerned within 10 working days from date of signing of the contract or prior to the commencement of employment to avoid incurring a fine of P10, 000.00 for both the foreign national and the employer. Previously, the grace period to file the application was 15 working days after signing of the contract of employment.
Meanwhile, the processing period, which was previously set at 3 working days for new AEP applications and 1 day for AEP renewal applications, was increased to 5 working days.
For the application fees, foreign nationals and employers are now required to pay an increased application fee of P10, 000.00 for a new AEP with a validity of 1 year and an additional P5, 000.00 for every additional year while for the renewal of AEP, the renewal fees were increased to PHP5, 000.00 for each year of validity, while P2, 000.00 shall be assessed for the issuance of Certificate of Exemption or Certificate of Exclusion.
Under the Revised AEP Rules, employers are now required to submit a quarterly report or an updated list of foreign nationals employed within 30 days from the reference period and change of employer’s information such as but not limited to name, address, or contact details.
The AEP application of a foreign national can be denied on grounds of misrepresentation of facts in the application; submission of falsified documents; the foreign national has been convicted of a criminal offense or a fugitive from justice in the country or abroad; grave misconduct in dealing with or ill treatment of workers; or availability of a Filipino who is competent, able and willing to do the job intended for or being performed by the foreign national.
Finally, the regional director may, motu proprio or upon petition, cancel or revoke an AEP, after due process, based on any of the following grounds: non-compliance with any of the requirements or conditions for which the AEP was issued; misrepresentation of facts in the application; submission of falsified or tampered documents; meritorious objection or information against the employment of the foreign national; foreign national has been convicted of a criminal offense or a fugitive from justice; employer terminated the employment of foreign national; grave misconduct in dealing with or ill treatment of workers; or disapproval of the application for an authority to employ alien or an STP.
For more information on the Revised Rules for the Issuance of Employment Permits for Foreign Nationals, visit our website at www.dole.gov.ph or www.car.dole.gov.ph or www.ble.dole.gov.