MATTERS CONCERNING EMPLOYMENT OF NON-RESIDENT ALIENS

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Under Article 40 of the Labor Code of the Philippines, any alien seeking admission to the Philippines for employment purposes and any domestic or foreign employer who desires to engage an alien for employment in the Philippines shall obtain an employment permit from the Department of Labor and Employment (DOLE). However, the issuance of the employment permit is subject to a determination of the non-availability of a person in the Philippines who is competent, able and willing at the time of application to perform the services for which the alien is desired.

In view of the above, DOLE issued Department Order No. 186 series of 2017 (DO 186-17) providing for the rules in the issuance of employment permits to foreign nationals. DO 186-17 declared that generally, the issuance of Alien Employment Permit (AEP) is not an exclusive authority for a foreign national to work in the Philippines. It is just one of the requirements in the issuance of a work visa for a foreign national who is legally engaged in gainful employment in the country. In addition, the foreign national must obtain the required Special Temporary Permit (STP) from the Professional Regulation Commission (PRC) in case the employment involves practice of profession and Authority to Employ Alien from the Department of Justice (DOJ) where the employment is in a nationalized or partially nationalized industry and Department of Environment and Natural Resources (DENR) in case of mining.

Alien Employment Permit (AEP)

All foreign nationals who intend to engage in gainful employment in the Philippines shall apply for AEP. As stated under DO 186-17 Section 1, gainful employment refers to a state or condition that creates an employer-employee relationship between the Philippine based employer and the foreign national where the former has the power to hire or dismiss the foreign national from employment, pays the salaries or wages thereof and has authority to control the performance or conduct of the tasks and duties.

Procedure in the Processing of Applications for AEP (Section 5 of DO 186-17)

All applications for AEP shall be filed and processed at the DOLE Regional Office or Field Office having jurisdiction over the intended place of work. In case the foreign national will be assigned in related companies of his employer, the applications may be filed in the Regional Office or Field Office having jurisdiction over any of the applicant’s intended place of work. In case there is change of position or assignment of the alien applicant, another application for issuance of new AEP shall be made.

Aside from the completion of the details under the application form(Alien Employment Permit Application Form) for the issuance of AEP, the following documents shall also be submitted:

1. Photocopy of Passport with valid visa, except for temporary visitor’s visa in case of renewal or Certificate of Recognition for Refugees or Stateless Persons;
2. Original copy of notarized appointment or contract of Employment enumerating the duties and responsibilities, annual salary, and other benefits of the foreign national;
3. Photocopy of Mayor’s Permit to operate business, in case of locators in economic zone, Certification from the PEZA or the Ecozone Authority that the company is located and operating within the ecozone, while in case of a construction company, photocopy of license from Philippine Contractor’s Accreditation Board (PCAB), or DO 174-17 Registration should be submitted in lieu of Mayor’s Permit;
4. Business Name Registration and Application Form with Department of Trade and Industry (DTI) or SEC Registration and GIS;
5. If the position title of the foreign national is included in the list of regulated professions, a Special Temporary Permit (STP) from the Professional Regulations Commission (PRC);
6. If the employer is covered by the Anti-Dummy Law, an Authority to Employ Foreign National (ATEFN) from the DOJ or from the DENR in case of mining.
7. Payment of Nine Thousand Pesos (PhP 9,000.00) for the issuance of AEP with a validity of one (1) year. In case the period of employment is more than one (1) year, an additional Four Thousand Pesos (PhP 4,000.00) shall be paid for every additional year or fraction thereof. Renewal of AEP costs PhP 4,000.00 (Section 6, DO 186-17).

Exemptions, Exclusions and Prohibitions

Foreign Nationals Exempted from Securing Employment Permit

Under Section 2 of DO 186-17, the following categories of foreign nationals are exempt from securing an employment permit:

1. All members of the diplomatic service and foreign government officials accredited by and with reciprocity arrangement with the Philippine government;
2. Officers and staff of international organizations of which the Philippine government is a member, and their legitimate spouses desiring to work in the Philippines;
3. Owners and representatives of foreign principals whose companies by the Philippine Overseas Employment Administration (POEA), who come to the Philippines for a limited period and solely for the purpose of interviewing Filipino applicants for employment abroad;
4. Foreign nationals who come to the Philippines to teach, present and/or conduct research studies in universities and colleges as visiting, exchange or adjunct professors under formal agreements between the universities and colleges in the Philippines and foreign universities or colleges; or between the Philippine government: provided that the exemption is on a reciprocal basis;
5. Permanent resident foreign nationals and probationary or temporary resident visa holders under Section 13 (a-f) of the Philippine Immigration Act of 1940 and Section 3 of the Alien Social Integration Act of 1995 (RA 7917);
6. Refugees and stateless persons recognized by DOJ pursuant to Article 17 of the UN Convention and Protocol Relation to the status of Refugees and Stateless Persons; and
7. All foreign nationals granted exemption by law.

Foreign Nationals Excluded from Securing Employment Permit

Under Section 3 of DO 186-17, the following categories of foreign nationals are excluded from securing an employment permit:

1. Members of the governing board with voting rights only and do not intervene in the management of the corporation or in the day to day operation of the enterprise;

2. President and Treasurer, who are part-owner of the company;

3. Those providing consultancy services who do not have employers in the Philippines;

4. Intra corporate transferee who is a manager, executive or specialist as defined below in accordance with Trade Agreements and an employee of the foreign service supplier for at least one (1) year continuous employment prior to deployment to a branch subsidiary, affiliate or representative office in the Philippines;

5. Contractual service supplier who is a manager, executive or specialist and an employee of a foreign service supplier which has no commercial presence in the Philippines, provided that the foreign national:

a. Enters in the Philippines temporarily to supply a service pursuant to a contract between his/her employer and a service consumer in the Philippines;

b. Possess the appropriate educational and professional qualifications; and

c. Employed by the foreign service supplier for at least one (1) year prior to the supply of service in the Philippines.

6. Representative of the Foreign Principal/ Employer assigned in the Office of Licensed Manning Agency (OLMA) in accordance with the POEA law, rules and regulations.

The foreign nationals covered by the exclusion from AEP shall secure a Certificate of Exclusion from the DOLE Regional Office or Field Office having jurisdiction over the intended place of work.

Prohibitions on Foreign Nationals granted with AEP

After the issuance of an employment permit, the alien shall not transfer to another job or change his employer without prior approval of the Secretary of Labor. Any non-resident alien who shall take up employment in violation of the provision of this Title and its implementing rules and regulations shall be punished in accordance with the provisions of Articles 303 (289) to 305 (290) of the Labor Code. In addition, the alien worker shall be subject to deportation after service of his sentence (Article 41 of the Labor Code).

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Alburo Alburo and Associates Law Offices specializes in business law and labor law consulting. For inquiries, you may reach us at info@alburolaw.com, or dial us at (02)7745-4391/0917-5772207.

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