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IMPACT – MEDIUM
What is the change? The Bureau of Immigration has created a technical working group to review and improve existing procedures, document requirements and processing timelines with an eye toward cutting red tape in immigration services. Additionally, the bureau’s Board of Commissioners is now fully seated, with the recent appointment of two new deputy commissioners by President Rodrigo Duterte.
What does the change mean? Employers and foreign nationals applying for visas, permits and immigration-related services should benefit from these reforms once they are implemented by the technical working group.
Background: The working group will “re-evaluate, review, revise and improve the existing procedures, timeline and documentary requirements” of all Bureau of Immigration services, according to an immigration administrative order dated July 7.
In his inauguration speech June 30, Duterte directed all agency heads to simplify procedures and cut down processing times under the Anti-Red Tape Act, a 2007 law that aims to improve public services and reduce inefficiency and corruption.
BAL Analysis: The reforms will be a welcome development for companies that rely on foreign employees. The scope of the reforms will not be clear until the working group releases its report and citizen’s charter.
This alert has been provided by the BAL Global Practice group and our network provider located in the Philippines. For additional information, please contact your BAL attorney.
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About Berry Appleman & Leiden LLP Founded in 1980, Berry Appleman & Leiden (BAL) provides comprehensive global immigration services from seven offices across the U.S. and from offices in Geneva, London, Melbourne, Rio de Janeiro, São Paulo, Shanghai, Singapore and Sydney. BAL manages global visa matters and customized application approaches for work permits, business visas, and residence permits in more than 100 countries. With a single cost center for worldwide operations, BAL offers centralized management with regional and local support for the complete spectrum of global immigration matters.
Source: Berry Appleman & Leiden LLP
What is the change? Labor authorities have issued a checklist of documents required for individuals claiming an exemption from employment permits on the basis of their status as corporate officers or board members.
What does the change mean? Corporate officers and board members seeking a certificate of exclusion from the Department of Labor and Employment (DOLE) should review the checklist and prepare to show the required documents.
Background: DOLE overhauled employment permit rules in September. At the same time, the agency announced several exemptions and exclusions, including foreign corporate officers under a company’s by-laws and board members of Philippine companies who are not involved in managing daily operations. Since then, DOLE regional offices began requiring a letter requesting the exclusion and issuing certificates of exclusion for those approved as not requiring employment permits.
The DOLE has now issued a checklist of documents that all regional offices will require:
BAL Analysis: Corporate officers and board members should work with their BAL professional to gather the appropriate documents for submission. Those receiving compensation should note that it has been brought to DOLE’s attention that nothing in the original order allowing the exclusions required that foreign nationals are unpaid. DOLE has agreed to take the matter under advisement and review the checklist.
What is the change? Following his comfortable election win May 9, Philippine President-elect Rodrigo Duterte will take office June 30.
What does the change mean? Expatriate employees should anticipate that the change in leadership may bring changes to national policies, including immigration laws, and the overall regulatory environment.
Background: The 71-year-old Duterte, former lawyer, prosecutor and mayor of Davao City, won the presidential election on a law-and-order platform, promising to crack down hard on criminals, especially organized drug cartels, and curb social ills such as public smoking and drinking. He also seeks to ban children walking alone at night, reduce unemployment and make government more efficient. On social and family issues, he has supported family planning and contraceptive use as well as gay marriage.
Duterte has appointed his cabinet, including the new head of the Bureau of Immigration, Jaime Morente, a former police chief for the Davao region.
BAL Analysis: While it is too early to tell what types of policy changes might be on the horizon in the immigration area, employers and expatriate workers in the Philippines should be aware that changes may be forthcoming.
What is the change? Philippine authorities are strictly enforcing rules requiring all ACR I-Card holders – or, in some cases, their representatives – to appear at a Bureau of Immigration office by March 3 to complete their annual report.
What does the change mean? ACR I-Card holders who did not appear in person during 2014 or 2015 must appear at a Bureau of Immigration office. Those who did appear in person in one of the last two years and meet other eligibility criteria can comply by sending a representative to submit the report. Those who do not complete their annual report face stiff penalties.
Background: Foreign nationals are generally required to file an annual report within the first 60 days of each calendar year.
ACR I-Card holders who did not appear in person at a Bureau of Immigration office in 2014 or 2015 must do so between now and March 3. Card holders must present officials with their original ACR I-card and a printed confirmation number issued through the AR 2016 online system. Card holders must appear at the Bureau of Immigration’s main office if they live in metropolitan Manila or at the appropriate branch office if they live outside of Manila. Parents or legal guardians are responsible for completing annual report requirements for children under 14 years old.
ACR I-Card holders who did appear in person in 2014 or 2015 may qualify for an exemption allowing them to send a representative in their place, provided they also submit a valid passport, a completed special power of attorney form with a valid government-issued ID for their legal representative, pay 500 Philippine pesos (about US$10) for nonappearance and are in compliance with all Philippine immigration and alien registration laws.
BAL Analysis: Authorities have grown strict in enforcing annual report requirements. Penalties for noncompliance may include administrative fines or even imprisonment. While exemptions from the in-person requirement make the process easier for some, all ACR I-Card holders must be sure that they complete the process required of them by March 3.
This alert has been provided by the BAL Global Practice group and our network partner in the Philippines. For additional information, please contact your BAL attorney.
What is the change? The Bureau of Immigration is in the process of implementing how it will recognize the categories of foreign workers excluded from Alien Employment Permits (AEP), which were announced last month by the Department of Labor and Employment (DOLE).
What does the change mean? Until the bureau announces procedures for implementation of the exclusions, employers claiming an exclusion are advised to submit a request for DOLE to certify an exclusion before a foreign employee submits a 9(g) application to the Bureau of Immigration.
Background: The Philippines implemented new labor rules Sept. 28 for companies employing foreign workers. Certain foreign employees were listed as excluded from the AEPs, including intracompany transferees, service contractors in executive or managerial roles, and foreign board members of Philippine companies who do not participate in day-to-day management or operations of the company.
The Bureau of Immigration and the Philippine Export Zone Authority are still developing their procedures to implement the new regulations. In the meantime, DOLE has begun to issue certifications confirming when the exclusion applies for eligible foreign employees. The certification can be used in connection with the foreign employee’s long-term work visa application. The process for applying for an exclusion certification requires the company to submit a request letter along with its Business Permit, its latest General Information Sheet and the employee’s original passport. DOLE will make a decision in approximately one week.
BAL Analysis: Employers in the Philippines are advised to apply for the certification to prove that their foreign employees qualify for an exclusion. The authorities are still working on the implementation of these new regulation and changes are possible.
What is the change? The Department of Labor has released templates that employers will use to fulfill new rules requiring notice of employment permit applications and proof of understudy programs to train Filipino workers.
What does the change mean? One template shows the expanded information, including salary ranges, that will be published by the Department of Labor upon receipt of an Alien Employment Permit application. The other template shows the required details of the employer’s training program, including the names of two Filipino understudies for each foreign worker.
Background: The Philippines implemented new labor rules Sept. 28 for companies employing foreign workers. Certain foreign employees are exempt from the AEP, including intracompany transferees, service contractors in executive or managerial roles, and foreign board members of Philippine companies who do not participate in day-to-day management or operations of the company.
The Department of Labor will publish the detailed notices of the filing of employment permit applications in the newspaper and now also on its website. Filipino workers will have 30 days to object.
Perhaps the most significant change requires employers to provide details of an understudy program to be implemented once the foreign national starts work. The training program plan must include the names of two Filipino understudies and a timeline, organized over the proposed length of the foreign national’s assignment, describing the skills that will be transferred and when it will be done. The foreign national must also complete an assessment of the Filipino understudies every six months to confirm that the necessary skills are being transferred. Assessment dates must also be included in the plan.
BAL Analysis: Employers in the Philippines should be aware that labor authorities are stepping up labor market testing and localization programs as conditions for companies seeking to employ foreign workers.
IMPACT – HIGH
What is the change? Employment permit rules have been significantly revised and tightened under an order by the Department of Labor and Employment.
What does the change mean? Companies will be required to train two Filipino employees for each foreign worker in a non-managerial position to transfer skills to the local labor force. In addition, under updated job advertising rules, the department will publish the details – including salary ranges – of all applications for employment permits in the newspaper and on its website for 30 days.
Details:
Under the new rules published by the Department of Labor and Employment in August, AEP applications will be filed with the department’s regional office having jurisdiction over the place of work. In cases where the company has two offices, it should be filed in the jurisdiction where the corporate headquarters is located.
Labor Market Test
The applications will be advertised for 30 days in a general-circulation newspaper and on the department’s website. Published information will include the name and address of the employer, the position and a description of the job duties to be performed by the foreign national, the monthly salary range and other benefits of the position. Filipino workers may object to the permit applications, and the department will determine if local workers are available to fill the position.
Understudy program
Companies hiring foreign technical workers in non-managerial/executive positions must submit with their application a program for training two Filipino nationals for every foreign employee and must include the names of the understudies.
Exemptions and Exclusions
Several categories of foreign workers who normally are required to obtain AEPs will be exempt based on reciprocity agreements, treaties and other laws. In addition, some foreign workers will not be required to obtain AEPs, including intra-company transferees and contractual service suppliers in executive, manager or specialist roles who are sent to the Philippines and have been employed in a foreign branch for at least one year.
Foreign board members of Philippine companies are only required to obtain employment permits if they participate in the management or operations of the company in the Philippines.
BAL Analysis: Companies should anticipate a stricter environment for hiring and retaining foreign workers. They must now also plan for additional training programs in connection with the new understudy requirement to transfer skills to the local labor force. The authorities are still working on implementing these new regulations and changes are possible.
What is the change? Eligible foreign visitors can now obtain their Emigration Clearance Certificates at airports upon exiting the Philippines.
What does the change mean? Some foreign employees can save time by obtaining their ECC at the airport just before leaving the Philippines rather than applying at the Bureau of Immigration Main Office.
Background: On April 16, the Bureau of Immigration issued Operations Order No. SBM-2015-009, authorizing the ECC to be issued at the airport to a foreign national who meets the following criteria:
Those who qualify will be issued an ECC upon payment of government fees of 710 Philippine pesos (about US$16) for the ECC and 500 PHP for an Express Lane Fee. (The ECC fee will be waived if already paid during extension of the Temporary Visitor’s Visa). Foreign nationals planning to obtain the ECC at the airport should plan to arrive several hours before their scheduled flight to allow for long lines at the cashier’s counter.
Before the order, ECCs were issued only by the Bureau of Immigration Main Office and took five business days to obtain.
BAL Analysis: The issuance of ECCs at the airport will somewhat simplify the exit process for foreign nationals who are on assignments of less than one year. However, foreign nationals ending longer-term assignments will still need to obtain their ECC through the Bureau of Immigration Main Office. BAL recommends that foreign nationals obtaining their ECC at the airport carry a copy of the order in case immigration officers are unfamiliar with the new regulation.
What is the change? The Bureau of Immigration is now requiring companies to submit a certificate indicating the number of foreign workers in their workforce.
What does the change mean? Companies must submit the certificate at the time they file an application for a 9(g) Visa.
Background: On the new form, a company must state the number of foreign workers and the number of Filipino workers it employs at the time of filing a 9(g) application. Since the form does not specify the foreign employees’ qualifications, companies filling out the form should report all foreign workers, including those holding other types of visas. The form, which must be notarized, is intended to ensure that the hiring of foreign workers does not negatively impact the job opportunities, wages or working conditions of Filipino workers.
BAL Analysis: The Bureau of Immigration and Department of Labor are working together to strictly enforce the new rule. Companies should be sure to include the form with other required documents for every 9(g) application.
What is the change? Foreign employees holding Commercial visas who are promoted within the same company will not have to downgrade to Tourist visas or apply for new Commercial visas.
What does the change mean? The exemption somewhat simplifies procedures for employers who promote foreign employees holding 9(g) Commercial visas.
Background: The Bureau of Immigration adopted the change under Board Resolution No. EED-15-01. Under the new procedures, foreign employees who are promoted to a higher position in the same company may apply for a new Alien Employment Permit for the new position, extend the 9(g) visa, and then submit a certified copy of the new AEP to the Bureau of Immigration.
BAL Analysis: The processing time required for the new steps is still eight to 10 weeks or more. Therefore, typically it is still more efficient for a foreign national’s promotion to coincide with the renewal of his or her 9(g) visa. However, the elimination of the visa downgrade step saves a bit of time when circumstances require a company to award a promotion earlier.