New employment rules and procedures for foreign nationals coming into the Philippines
The COVID-19 pandemic has significantly changed the way we live, particularly in relation to travel and mobility. In an attempt to curb the spread of the constantly evolving variants of the COVID-19 disease, the Philippines is among the countries that continue to close its borders to foreign travelers coming in for purposes of tourism.
On March 20, 2020, the Philippines initially imposed a total ban on the entry of foreign nationals into the country pursuant to Bureau of Immigration (BI) Memorandum Circular No. JHM-2020002. The ban included holders of immigrant, non-immigrant, or special visas. It only allowed for the entry of foreign spouses and children of Filipino nationals, accredited foreign government and international organization officials and their dependents, and foreign airline crew. Along with this ban came the suspension of visa-free entry privileges and the issuance of tourist visas by the Philippine Foreign Service Posts, and the cancellation of all previously issued tourist visas pursuant to Foreign Service Circular No. 29-2020.
With countries closing their borders to international travelers and restricting internal movement by implementing local lockdowns, the world seemed to have gone into a complete standstill. As this was not economically sustainable, over time, countries gradually re-opened their borders to boost local businesses and investments. In a similar light, and in order to mitigate further economic impact, the Philippines also relaxed its travel policies in order to accommodate a wider range of categories of foreign nationals allowed to enter the country. Since then, the government response and the laws issued by the pertinent agencies have evolved depending on the number of community cases, the transmission of the COVID-19 variants, and the over-all vaccination rate.
In line with the easing of restrictions, the Philippines is now allowing the entry of foreign nationals who are holders of immigrant, non-immigrant visas, or special visas, with travel restrictions now only applying to those who are traveling under tourist or temporary visitor visas under Section 9(a) of the Philippine Immigration Act, and to passengers coming from countries identified by the COVID-19 Inter-Agency Task Force (IATF) for the Management of Emerging Infectious Diseases as high risk due to the surge of COVID-19 cases. The suspension of visa-free entry privileges and issuance of tourist visas by the Foreign Service Posts remains in effect.
Nevertheless, local companies that are hiring foreign employees or whose foreign employees have expired visas are not left without any recourse, provided that they are able to justify that the services of the foreign national are essential and critical in the operations of the local company. Cognizant of the need for some foreign nationals to enter the country for immediate and important business matters, the government has granted exemptions on a case-to-case basis by issuing an Entry Exemption Document. Foreign nationals coming into the country for purposes of business or employment need to secure a favorable endorsement from a national Philippine government agency and an Entry Exemption Document from the Department of Foreign Affairs (DFA). Once they arrive in the country, they can file their applications for the appropriate work permit and work visa.
However, on Aug. 5 of this year, the IATF issued Resolution 131-A providing the guidelines for visa issuance to foreign nationals who intend to come into the Philippines for purposes of long-term employment, or for more than six months, with a Philippine-based employer, and employment in connection with foreign-funded government projects such as those in transportation and infrastructure. In a related issuance, the Department of Justice (DoJ) issued its guidelines on Aug. 11 for the processing of applications for the issuance of Special Non-Immigrant Visas pursuant to Section 47(a)(2) of the Philippine Immigration Act. On the part of the BI, it issued Operations Order No. JHM-2021-004 on Aug. 16 providing for specific guidelines in relation to the issuance of 9(g) visas. On Aug. 31, the Department of Labor and Employment (DoLE) likewise issued Labor Advisory No. 16 on the issuance of an Alien Employment Permit (AEP) or Certificate of Exemption/Exclusion to foreign nationals intending to come to the Philippines for long-term employment.
Under the new guidelines, local companies may already initiate the applications for an Alien Employment Permit and 9(g) commercial or 47(a)(2) visa of the foreign national, even if the latter is still out of the country. Previously, a foreign national was generally required to be physically present in the country before the work permit and work visa applications could be filed, thus, the need to secure an Entry Exemption Document from the DFA before bringing the foreign national into the country. Under the new rules, local companies can go straight to the work permit and visa application process without having to separately apply for an Entry Exemption Document with the DFA.
Another notable accommodation granted under the new guidelines is that pursuant to Section 7 of IATF Resolution No. 131-A, digitized or scanned copies of original documents, including documents authenticated or apostilled abroad may be accepted, subject to the submission of the original documents on a later date. Previously, for the applications filed locally, the BI and DoJ were strict with the submission of documents and continue to require original documents and forms signed with wet signatures even during the pandemic.
With respect to the procedure, the AEP card or Certificate of Exemption/Exclusion, as applicable, remains a pre-requisite for the filing of the 9(g) visa application with the BI. Under DoLE Labor Advisory No. 16, the requirements and procedure will be the same, except that the AEP shall be released to the Philippine-based employer to facilitate the application for the appropriate work visa with the BI.
Upon the approval of the work visa application, the BI and the DoJ will send this to the DFA, through the Office of Consular Affairs, for transmittal to the respective Foreign Service Post where the foreign national is coming from, for implementation and stamping. The implemented visa is only valid for 90 days and is limited for the purpose of entry into the country. Thereafter, the foreign national must report to the BI or the DoJ, as applicable, within seven working days from their release from quarantine or isolation, for the full implementation of the visa and for photo and biometric capturing for the ACR I-card for 9(g) visa holders.
Under Section 7 of the BI Operations Order No. JHM-2021-004, failure of the foreign national “to report within seven working days but not to exceed 60 days shall cause the non-implementation of the visa and/or registration, unless the applicant files for a reconsideration considering meritorious grounds.” On the other hand, failure to appear during the 60-day period shall cause the cancellation and downgrading of the visa. Furthermore, a copy of the valid visa of the foreign national must be submitted within 30 working days to the DoLE after completion of the 14-day quarantine protocol.
The COVID-19 pandemic has persisted for longer than we could all have imagined, and is likely here to stay at least in the medium term. Not only has it changed the way we live, it has likewise accelerated the need for authorities to revisit and reform the laws of the country to adapt to the changing circumstances. While the alarming threat to public health has not subsided, the world can no longer remain at a standstill. Whether we all like it or not, the need to be flexible and the ability to adapt will be key.