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Also, the matters contained in the following were written in accordance with the law, rules, and jurisprudence prevailing at the time of writing and posting, and do not include any future developments on the subject matter under discussion.
AT A GLANCE:
The 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 to legally engage in gainful employment in the country. (DOLE Department Order No. 146-15, August 20, 2015)
Who needs an Alien Employment Permit?
All foreign nationals who intend to engage in gainful employment in the Philippines shall apply for Alien Employment Permit (AEP).
What is the meaning of “gainful employment”?
Gainful employment shall refer to a state or condition that creates an employer-employee relationship between the Philippine based company 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.
Who are the foreign nationals exempted from securing an AEP?
The following categories of foreign nationals are exempt from securing an employment permit:
- All members of the diplomatic service and foreign government officials accredited by and with reciprocity arrangement with the Philippine government;
- Officers and staff of international organizations of which the Philippine government is a member, and their legitimate spouses desiring to work in the Philippines;
- All foreign nationals granted exemption by law;
- Owners and representatives of foreign principals whose companies are accredited 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;
- 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 or colleges in the Philippines and foreign universities or colleges; or between the Philippine government and foreign government: provided that the exemption is on a reciprocal basis; and
- Permanent resident foreign nationals and probationary or temporary resident visa holders under Section 13 of the Philippine Immigration Act of 1940.
Who are the foreign nationals excluded from securing an AEP?
The following categories of foreign nationals are excluded from securing an employment permit:
a. 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.
b. Corporate officers as provided under the Corporation Code of the Philippines, Articles of Incorporation, and By-Laws of the Corporation such as President, Secretary and Treasurer.
c. Those providing consultancy services who do not have employers in the Philippines.
d. 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 prior to deployment to a branch, subsidiary, affiliate or representative office in the Philippines.
- an Executive: a natural person within the organization who primarily directs the management of the organization and exercises wide latitude in decision making and receives only general supervision or direction from higher level executives, the board of directors, or stockholders of the business; an executive would not directly perform tasks related to the actual provision of the service or services of the organization;
- a Manager: a natural person within the organization who primarily directs the organization/department/subdivision and exercises supervisory and control functions over other supervisory, managerial or professional staff; does not include first line supervisors unless employees supervised are professionals; does not include employees who primarily perform tasks necessary for the provision of the service; or
- a Specialist: a natural person within the organization who possesses knowledge at an advanced level of expertise essential to the establishment/provision of the service and/or possesses proprietary knowledge of the organization’s service, research equipment, techniques or management; may include, but is not limited to, members of a licensed profession.
e. 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:
- who enters the Philippines temporarily to supply a service pursuant to a contract between his/her employer and a service consumer in the Philippines;
- must possess the appropriate educational and professional qualifications; and
- must be employed by the foreign service supplier for at least one year prior to the supply of service in the Philippines.
Read also:
IMPACT OF COVID-19 TO THE APPLICATION OF ALIEN EMPLOYMENT PERMITS
Alburo Alburo and Associates Law Offices specializes in business law and labor law consulting. For inquiries regarding taxation and taxpayer’s remedies, you may reach us at info@alburolaw.com, or dial us at (02)7745-4391/0917-5772207.
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