The Changing Landscape of Philippine Immigration
February 28, 2014
Countries / Territories
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By: Kenneth Lau
When reading the comments on the Philippine Bureau of Immigration’s (BI) official Facebook page, it is clear that there is a lot of confusion with the current direction of the Philippine immigration rules:
“[I’ve] been here around 6 years and yes more and more papers every year…the changes…the laws they come and they go without any reasonable progress.”
“Are you crazy to create such regulations for the annual report?”
“[My friend] was not allowed to fly out of the country due to a certificate and this was not even mentioned to him when he visited the bureau of immigration office!”
These comments, posted only recently, indicate growing frustration with the new changes to the Philippine immigration procedures. It is important to put these comments into context to understand exactly what the changes are and what employers can do to help their employees navigate through them.
Background
The recent changes and new requirements imposed on foreign nationals come under the backdrop of a change in leadership and personnel at the BI. In a press release dated 7 January 2014, the BI indicated that we can “expect more changes,” vowing “to continue implementing reforms to transform the bureau into a model governmental agency.” The BI also stressed that it “will continue our reform measures, ensure strict border controls against criminal elements and undesirable aliens, and enhance our relationships with other stakeholders this year.” One of the BI’s stated goals is the increased enforcement of immigration laws and one of the mechanisms to do this has been the automation of its processes.
Already, under this environment of stricter enforcement and changing policies, a range of new regulations has been introduced. This has resulted in seemingly greater bureaucracy as well as confusion for foreign nationals. Below are examples of some of the changes.
New Requirements: Taxpayer Identification Number for Short-Term Assignments
One of the first changes to be announced was in June 2013, when the BI confirmed that foreign nationals applying for a Special Work Permit (SWP) would be required to first obtain a Taxpayer Identification Number (TIN) before their application could be submitted. This requirement was already in place for certain long-term work visa categories.
By way of background, the SWP is available for short-term assignments, i.e. of six months or less. It is valid for an initial period of three months and then extendible once in-country for an additional three months (or for a maximum of six months). The SWP is therefore applicable also for those brief trips to the Philippines (from a few days to a few weeks) where the foreign national is performing activities that would be considered work under the immigration rules (such as providing training).
This requirement to obtain a TIN was put into place by the BI in response to a report by the Bureau of Internal Revenue (BIR) that indicated there were a large number of foreigners working in the Philippines without TINs, even though for many short-term visits (particularly the brief visits), it is unlikely that the individual would be subject to tax requirements (as they would remain on their home country payroll).
More recently, in a Memorandum Circular issued by the BI in November 2013, an exception was carved out for SWP applicants whose salaries are paid from their home countries (recognizing that a TIN would be unnecessary since such individuals would not be earning any income in the Philippines). However, although a positive step, the Memorandum Circular introduced an additional requirement for such applicants to provide a sworn declaration from the sponsoring company confirming that their salary is paid from abroad.
However, as the Memorandum Circular was issued several months after the initial change in policy, there had already been much confusion created among companies sponsoring the SWP, the foreign nationals applying for the SWPs, and immigration practitioners assisting both.
Stricter Requirements: Enforcing the Annual Report Requirement for 2014
In a press release issued in late December 2013, the BI confirmed that foreign nationals would be required to report in person at the BI as a requirement for their continued stay. By way of background, under the Alien Registration Act of 1950, all registered aliens must report in person to the BI or any of its offices within the first sixty (60) days of each year. In a Memorandum Circular dated 12 December 2013, the BI has confirmed strict compliance with this rule; previously, it was possible for this annual requirement to be completed by third party agents on behalf of the foreign national.
Along with the Memorandum Circular, the BI also issued two advisories, one for foreign nationals and one for third parties. These left little room for interpretation. The BI re-confirmed the in-person reporting requirement for foreign nationals and confirmed that third parties would be prohibited from “accomplishing the application form or paying the annual report in behalf of their clients.” Few exceptions were made for foreign nationals (such as for children under the age of 14) and even fewer exceptions were made for third parties (such as permitting them to assist in designated areas only of the BI offices).
Given the drastic change in practice, the new rules understandably caused confusion among foreign nationals and practitioners alike. For example, the advisory to the foreign nationals made little mention of what documentation was required besides the individual’s original Alien Certificate of Registration Identity Card (ACR I-Card) and the duly accomplished and notarized application form.
Furthermore, it was not confirmed at the time if every BI office would be able to accept the Annual Report. Although a list of BI offices was later published, it was subsequently clarified through amended guidelines that the BI offices would be categorized based on which Annual Report applications they can process. It was even identified that some offices could not process any applications at all.
Reinstatement of Old Requirements: Provisional Work Permit (PWP)
Under current policy, individuals coming into the Philippines to work on a Section 9(g) Pre-Arranged Employment Visa (which is considered the “default” long-term work visa) can commence working after their application for an Alien Employment Permit (AEP) has been filed at the Department of Labor and Employment (DOLE).
Previously, applicants for the 9(g) visa were required to apply for a Provisional Work Permit (PWP) if they wanted to commence employment while their applications were pending. However, in 2005, the BI issued a Memorandum Circular confirming that the requirement to apply for the PWP was revoked and that instead an application for an AEP would serve as provisional permission to work while the AEP application was pending.
Now it appears that the BI will be reinstituting the old rule requiring applicants for AEPs to obtain a PWP before commencing work. An Operation Order was issued in late December 2013 indicating the reinstatement of the previous PWP rule. As of today, while many questions remain as to how the PWP will be re-implemented (as far as procedures and processing times are concerned), it is now clear that the BI does intend to proceed along this path.
What Employers Should Know
As can be seen from the examples above, the Philippines’ immigration rules are changing. Whether it is in the form of new requirements, stricter requirements, or the reinstatement of previous requirements, these changes are expected to continue as part of the BI’s stated goal of stricter enforcement.
Against this changing immigration landscape, it is important for employers to keep closely updated on all developments from the BI. In fact, the BI’s social media websites are some of the best sources of information, as they are constantly being updated. Furthermore, as these sites are public forums (see above), BI officers often respond to foreign nationals’ comments and questions.
Along with greater awareness among employers, it is equally important, if not more so, that foreign nationals are also aware of these changes. While some changes represent only additional steps in obtaining work authorization (such as the TIN or the PWP), some (such as the Annual Report) will undoubtedly require further personal involvement by the foreign nationals themselves.
