The New Rules on the Issuance of Special and Provisional Working Permit

The rise of globalization and the growth of transnational economy are slowly establishing a “borderless world”. Information, technology and resources flow freely from one country to another. More than a mere business approach however, globalization, and the root concept of free trade, is slowly becoming an ideology. Globalization connotes liberalization and freedom that appeals to progressive-minded individuals. However, with the increasing gap between the first and third world countries, to what extend is it truly liberating?

Earlier this year, there have been reports concerning the rush of Chinese workers in the country.[1] Accordingly, many of them are legally working for offshore gaming companies as Chinese operators.[2] Due to the increasing demand of Chinese interpreters brought about by the growth of offshore gaming in the country, coupled with the shortage of Filipinos having the prescribed skillset, special working permits have been granted to these foreign workers.[3] However, some of these Chinese laborers are illegally working in the country. Recently, several reports disclose that Chinese laborers have been working as construction workers for infrastructure projects.[4]

In light of these recent developments, the Bureau of Immigration sought to implement a tighter scheme for the issuance of Special and Alien Employment Permits. The Bureau of Immigration, in coordination with the Department of Environment and Natural Resources (DENR), the Department of Finance (DoF), the Department of Foreign Affairs (DFA), the Department of Justice (DoJ) and the Department of Labor and Employment (DoLE), as well as the Bureau of Immigration (BI), the Bureau of Internal Revenue (BIR), the National Intelligence Coordinating Agency (NICA) and the Professional Regulation Commission (PRC) issued a Joint Memorandum Circular which harmonizes the rules and procedures for the procurement of the said permit.

Requirements for Aliens to Work in the Philippines

The issuance of a work visa 9(g) is a requirement for a foreign national to lawfully engage in gainful employment in the country.[5] Accordingly, gainful employment refers to a “state or condition that creates an employer-employee relationship between the Philippine-based employer and a 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 the authority to control the performance or conduct of the tasks and duties”[6]. If the foreign national seeks to engage work outside of an employment arrangement however, a Special Working Permit (SWP) must be secured from the Bureau of Immigration.[7] Special Working Permits are issued for short term temporary assignment in the Philippines for less than a year.

Before issuing the work visa 9(g), an Alien Employment Permit (AEP) must first be procured from the DOLE.[8] If the employment involves the practice of profession, a Special Temporary Permit (STP) must likewise be secured from the PRC.[9] An Authority to Employ Alien must furthermore be procured from the DOJ if the employment involves a nationalized or partially nationalized industry, or from the DENR if the employment concerns mining.[10]Nonetheless, prior to the issuance of an AEP, a foreign national may procure a Provisional Work Permit (PWP) valid for 6 months.[11]All of these permits are subject to exclusions however due to the principle of reciprocity or government policy.[12] Furthermore, those foreign nationals excluded from securing an AEP must secure a Certificate of Exclusion from the Regional Office of the DOLE.[13]

It must be noted that an AEP is valid only for the position and company that it was secured for. Furthermore, foreign nationals can only engage in functions where no “competent, able and willing” Philippine national is able to perform the same services.[14] These functions, as well as the definition of a “work outside of employment arrangement” for SWP, are not however specified.

Christian Andrew Labitoria Gallardo recently graduated with a degree of Juris Doctor at the Ateneo School of Law and is currently an associate of the Sangalang & Gaerlan, Business Lawyers. You may reach him at andrew.gallardo@paladinslaw.org

[1] Jessica Fenol, Rush of Chinese workers in Philippines sparks worry, call for caution, available at https://news.abs-cbn.com/business/02/25/19/rush-of-chinese-workers-in-philippines-sparks-worry-call-for-caution (last accessed July 12, 2019).

[2]Id.

[3]Id.

[4]Xave Gregorio, DOLE, BI admit Chinese laborers spotted at Manila construction site working illegally, available at https://cnnphilippines.com/news/2019/4/4/Chinese-construction-workers-illegal-DOLE-Immigration.html (last accessed July 12, 2019).

[5] Policy Declaration, DOLE Department Order no 186 series of 2017, Revised Rules for the Issuance of Employment Permits to Foreign Nationals.

[6]Id. §1.

[7]May 1, 2019 Joint Guidelines of the DOLE, DOJ and BI.

[8] Policy Declaration, DOLE Department Order no 186 series of 2017, Revised Rules for the Issuance of Employment Permits to Foreign Nationals.

[9]Id.

[10]Id.

[11] May 1, 2019 Joint Guidelines of the DOLE, DOJ and BI.

[12] Please see § 2 and § 3, DOLE Department Order no 186 series of 2017, Revised Rules for the Issuance of Employment Permits to Foreign Nationals.

[13]Id. § 4.

[14]Id, § 7.