Visa and Work Permit Kowit Somwaiya Managing Partner LawPlus Ltd. American Chamber of Commerce SME and Legal Committees 11 th July 2018 Bourbon Street, Bangkok
The information provided in this document is general in nature and may not apply to any specific situation. Specific advice should be sought before taking any action based on the information provided. Under no circumstances shall LawPlus Ltd. or any of its directors, partners and lawyers be liable for any direct or indirect, incidental or consequential loss or damage that results from the use of or the reliance upon the information contained in this document. Copyright 2018 LawPlus Ltd. 1
Kowit Somwaiya B.A. (Education English), Ubon Ratchathani Rajbhat University LL.B., Thammasat University LL.M., University of Illinois Certificate of Instruction for Lawyers, Harvard Law School Managing Partner, LawPlus Ltd. and LawPlus Myanmar Ltd. Vice President, IPAT (Intellectual Property Association of Thailand) Member of the Board of Directors, INTA (International Trademark Association) 2
LawPlus Ltd. Established in 2003 Major practices Banking and finance Corporate and M&A FDI and investment promotion IP and IT Dispute resolution and litigation Rankings: Visit www.lawplusltd.com for newsletters and articles on laws 3
Who Are Exempt from Work Permits? (1) Section 4. This Emergency Decree shall not apply to the performance of duties in the Kingdom by foreigners only in the following capacities: (1) members of a diplomatic mission; (2) members of a consular mission; (3) representatives of a Member State to, and personnel of, the United Nations and specialised agencies; (4) private servants travelling from a foreign country to be in the ordinary service to the persons under (1), (2) or (3); (5) persons performing duties or missions under an agreement concluded by the Government of Thailand with a foreign Government or an international organisation; 4
Who Are Exempt from Work Permits? (2) (6) persons entering the Kingdom occasionally for organizing or participating in meetings, giving comments, lecturing or demonstrating in meetings, trainings, work visits, seminar or shows of arts or cultures or sport competitions or any other activities prescribed by the Cabinet in which case the Cabinet may specify periods of time or conditions as it finds appropriate; (7) persons entering the Kingdom for business operation or investment or being experts, specialists or high-skilled persons who are beneficial to development of the country as prescribed by the Carbinet; (8) representatives of foreign legal entities granted with a foreign business license under the foreign business law; 5
What Are Work and Work Permit? work means engaging in any occupation with or without employer, except for the operation of business by a licensee under the foreign business law; foreigner means a natural person who is not of Thai nationality; employer means an employer under the law on labour protection and shall also include a natural person or a juristic person intending to bring a foreigner for working in the country with himself or itself; employee means a person who works for an employer in return for wages; work permit means a work permit of a foreigner. 6
Who Are in Charge? Registrars means the Director-General and competent officials appointed by the Minister with the recommendation of the Director- General for issuing work permits and performing other activities under this Emergency Decree; Director-General means the Director-General of the Department of Employment; Minister means the Minister having charge and control of the execution of this Emergency Decree (the Minister of Labour). 7
No Work Permit, No Work, No Hire A foreigner shall not work without a work permit or work outside the right to work in violation of this Emergency Decree (Section 8). No person shall accept a foreigner to work without a work permit or allow a foreigner to work outside the right to work in violation of this Emergency Decree (Section 9). 8
Easier to Obtain Work Permit Work Permit must be issued within 15 working days from the application filing date. Each work permit can be for a term requested by the applicant but not to exceed 2 years (Section 59). Foreigner residing outside Thailand can submit application for work permit by electronic means (Section 60). 9
Necessary and Urgent Works Foreigners can enter Thailand and perform urgent and necessary work or special work for 15 days upon giving a notice to the Registrar. An extension of time for another period of 15 days is possible upon giving a second notice to the Registrar before the end of the first 15 days (Section 61). 16 necessary and urgent works are under the notification of the Department of Employment dated 28 June 2017. 10
Necessary and Urgent Works (1) 1. work of organizing meetings, trainings or seminars 2. special academic lecture work 3. aviation management work 4. occasional internal audit work 5. follow-up and solving of technical problem work 6. product or goods quality inspection work 7. manufacturing process inspection or improvement work 8. work of machinery and electric generator equipment system inspection or repair 11
Necessary and Urgent Works (2) 9. machinery repair or installation work 10. electricity train system technician work 11. aircraft or aircraft equipment technician work 12. machinery repair or machinery controller system consultancy work 13. machinery demonstration and testing work 14. filming motion pictures and still photography work 15. work of selecting recruitment persons for sending workers to work overseas 16. work of testing skills of technicians for sending them to work overseas. 12
Notice to Registrar Employer must notify the Registrar of name, nationality and nature of work of foreign employee within 15 days from his employment date and also notify the Registrar within 15 days after employee resigns or is terminated (Section 13). Employee must notify the Registrar of information about his employer, place of work and nature of work within 15 days from his employment date and notify the Registrar every time he changes employer (Section 64/2). 13
Penalties for Employees No. Offences Fines (THB) 1. Not notifying Registrar of his employer up to 20,000 2. Not notifying Registrar of change of employer up to 20,000 3. Working without a WP 5,000 to 50,000 + repatriation 14
Penalties for Employers No. Offences Fines (THB) / Imprisonment 1. Hiring foreigner without a work permit 10,000 to 100,000 per employee 2. Repetition of offence under No. 1-50,000 to 200,000 - Imprisonment not more than 1 year - Being barred from hiring foreigner for 3 years 3. Not notifying Registrar of hiring or ending of employment of foreign employee up to 20,000 15
Visa and Work Permit for BOI Skilled Employees Skilled employee are President, Managing Director, General Manager, Factory Manager, CFO, Production Engineer, etc. Must have education and experience requirements required by BOI for business of employer. Terms of visa and WP depends on type of promoted business, such as 4 years for IHQ 2 years for software development 1 year for data center 16
Obtaining Visa and WP for Skilled Employee No. Action By From 1. Obtaining a Non-Immigrant B visa abroad Employee Thai Embassy outside Thailand Timeframe (Working Days) Variable 2. Obtaining a username and a password for using the BOI e- Expert System 3. Obtaining an approval from the BOI for positions of skilled employees 4. Obtaining an approval from the BOI for appointment of each skilled employee in the approved position 5. Obtaining a visa and a work permit Employer Employer Employer One Stop Service Center for Visa and Work Permit (OSS) BOI e-expert System (online) BOI e-expert System (online) 2-5 5-20 Employee OSS 1 5 17
Visa and Work Permit for Unskilled BOI Employees Unskilled Employee are factory workers, fishery labours, housemaids, etc. Term of visa and work permit is not more than 2 years, renewable for another period of not more than 2 years. From 1 st January 2019, BOI promoted company can employ unskilled employees only from Cambodia Laos and Myanmar. 18
Obtaining Visa and Work Permit for BOI Unskilled Employees No. Action By From 1. Obtaining approval to bring unskilled employees into Thailand 2. Obtaining an approval to bring selected unskilled employees to work in Thailand 3. Obtaining an approval for selected unskilled employees to work in Thailand 4. Obtaining a Non-Immigrant L- A visa Employer BEO or PEO Bangkok Employment Office ( BEO ) or Provincial Employment Office ( PEO ) Relevant authorities in home country Timeframe (Working Days) 1 Variable Employer BEO or PEO 1 Employee Thai embassy located in home country 5. Attending a training workshop Employee Post-Arrival and Employment Termination Center Variable 6. Health check-up Employee Hospital in Thailand 1 1 7. Obtaining a work permit Employee BEO or PEO 7 19
Smart Visa Implementation Rules Ministry of Interior Notification on Special Permission for Foreign Experts, Investors, Executives and Entrepreneur to Reside in Thailand on Special Basis B.E. 2561 dated 30th January 2018. BOI Notification No. Por. 4/2561 on Qualification, Terms and Conditions for Smart Visa B.E. 2561 dated 1st February 2018 BOI Notification No. Por. 5/2561 on Procedures for Requesting Qualification Certificate for Foreigners to Obtain Smart Visa B.E. 2561 dated 1st February 2018 20
Smart Visa Who Are Eligible and How to Obtain It? Qualified experts, executives, investors, entrepreneurs and their spouses and children. Investing in one of the 10 targeted industries. Must first obtain a Qualification Certificate from the OSS of the BOI or Thai Embassy or Thai Consulate in home country. Must obtain a smart visa from OSS or Thai Embassy or Thai Consulate in home country within 60 days from Qualification Certificate date. 21
Terms of Smart Visa No. Types Permitted Visa Terms Renewal Terms 1. Expert Per employment contract but not more than 4 years 2. Executive Per employment contract but not more than 4 years Same as permitted term Same as permitted term 3. Investor Not more than 4 years Same as permitted term 4. Entrepreneur 1 year 2 years 5. Spouses and Children Same as smart related visa holder Same as permitted term 22
Benefits of Smart Visa Holder can work in Thailand without a work permit. Holder reports to the immigration official only once a year. Holder can re-enter Thailand without a re-entry permit. 23
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