The Bureau of Immigration has recently issued Operations Order No. JHM-2019-008 or the "Implementing Rules on Special Work Permit and Provisional Work Permit" ("IRR").
The Implementing Rules may be found here.
What the IRR say
Under the old rules, a Special Work Permit ("SWP") is available to a foreign national who will be employed or engaged for short-term employment (i.e., not exceeding 6 months) and for a position that is temporary in nature. The SWP is valid for an initial period of 3 months, extendible for another 3 months.
The new IRR provides that an SWP is available to a foreign national who intends to work, engage in specific activities or render services outside of an employment arrangement such as the following:
- Professional athletes, coaches, trainers and assistants;
- International performers with exceptional abilities;
- Artist, performers and their staff, who perform before an audience for a fee, subject to compliance with the requirements of the concerned agency, office or body;
- Service suppliers coming primarily to perform temporary services and who do not receive salary or other remuneration from a Philippines source other than expenses incidental to their temporary stay;
- Treasure hunters authorized to search for hidden treasure with permit from the concerned government agencies and instrumentalities;
- Movie and television crews authorized to film in the country by the relevant regulatory office, body of agency;
- Foreign journalist practicing their profession or covering a specific event in the country;
- Trainee/s assigned in government instrumentalities, government owned and controlled corporations (GOCC) and private entities;
- Lecturers, researchers, trainers and others pursuing academic work, who are assigned in schools, universities, educational and research institutions, government agencies and other entities (with or without compensation);
- Religious missionaries and preachers;
- Commercial models and talents;
- Culinary specialists/Chefs;
- Professionals; and
- Consultants or specialists.
Based on the foregoing, it appears that only foreign nationals who will work in the Philippines for less than 6 months and do not have an employer-employee relationship with the local sponsor can apply for an SWP.
However, there appears to be some inconsistency and ambiguity in the IRR. The documentary requirements for an SWP application still include the submission of a contract of service, appointment letter, assignment letter, or equivalent document indicating duration of employment, compensation and other benefits and scope of duties (At Section 4) - which appears to imply and allow an employment relationship between the local sponsor and the foreign national.
Based on our inquiry with the BI, the IRR will be effective on 15 July 2019. In the upcoming weeks, we will be able to determine how the IRR will be implemented and how the BI will deal with the inconsistency and ambiguity discussed above.
Other notable updates from the IRR:
- The IRR outlines the requirements for SWP and PWP applications. Notably, PWP applications should now include a photocopy of the local sponsor's latest Income Tax Return and proof of payment thereof;
- With respect to consultants or specialists, the PWP application should be able to justify that despite best efforts, no Filipino is able and willing to provide such consultancy or specialized service;
- The IRR now expressly states that, with respect to foreign nationals who will be practicing professions regulated by the Professional Regulation Commission, a Special Temporary Permit (STP) is required before applying for an SWP/PWP; and
- Each applicant will be assigned a serial number to facilitate the monitoring of the SWP/PWP. The Order granting the SWP/PWP must be presented when renewing the Temporary Visitor's Visa.
Actions to consider / Conclusion
- A company may consider having a secondment arrangement with a foreign national if it intends to apply for an SWP. Nonetheless, we will verify with the BI on how the IRR will be implemented as to the scope of SWP applications.
- A company should ensure that all the documentary requirements for SWP and PWP which are outlined under the IRR are complete.
- PWP applications should include a statement on the justification on why a foreign national is being employed, and that no Filipino is able and willing to provide the consultancy or specialized service.
- A company should secure an STP for foreign nationals who will hold positions / practice professions regulated by the PRC. This is expressly required to support an SWP/PWP application.