Hiring Foreign Nationals in the Philippines: Work Permit Requirements

Employers in the Philippines cannot simply put a foreign national on the payroll. Under Article 39 of the Labor Code, any alien seeking admission to the Philippines for employment, and any domestic or foreign employer who desires to engage an alien for employment in the Philippines, must obtain an employment permit from the Department of Labor. The permit may be issued to the nonresident alien or to the applicant employer, but only after a determination that no person in the Philippines is competent, able, and willing at the time of application to perform the services for which the alien is desired. The alien must also hold the appropriate admission status under the Philippine Immigration Act of 1940.

Who needs an employment permit

The Labor Code defines the covered alien broadly. Under the Omnibus Rules Implementing the Labor Code, a "non-resident alien" means any alien already in the Philippines, or seeking admission to the Philippines, to obtain employment in any public or private enterprise. The same Rules define an "employment permit" as the authority issued by the Secretary of Labor and Employment to a non-resident alien to work in the Philippines, or to an employer engaged in business in the Philippines to employ such alien.

This means the filing obligation cuts both ways: the foreign national and the hiring employer each have an interest in securing the permit before work begins.

The labor market test

Article 39 conditions the permit on a finding of non-availability of a person in the Philippines who is competent, able, and willing at the time of application to perform the services for which the alien is desired. In practice, the employer must be ready to show why the role cannot be filled locally.

There is a special route for registered enterprises. For an enterprise registered in preferred areas of investments, the employment permit may be issued upon the recommendation of the government agency charged with supervision of the registered enterprise.

If the enterprise is registered in preferred areas of investment

Employers in preferred investment areas should secure the endorsement of their supervising government agency early. Article 39 expressly allows the permit to issue on that agency's recommendation, which can simplify the labor market showing. The recommendation should accompany the application rather than be requested afterward.

The immigration side: admission status

A Department of Labor employment permit is not a visa. The alien's admission is governed by the Philippine Immigration Act of 1940. Under Section 9 of that Act, nonimmigrants may be admitted in defined categories, including a person coming for business. Section 13 covers immigrants, including an alien coming to prearranged employment for whom a visa has been authorized under Section 20.

Section 20 of the Immigration Act requires a petition filed with the Commissioner of Immigration establishing that no person can be found in the Philippines willing and competent to perform the labor or service for which the immigrant is desired, and that the immigrant's admission would be beneficial to the public interest. The petition is made under oath by the prospective employer or a representative and must state the nature of the service, the probable length of engagement, the wages and compensation, and the reasons a local person cannot be engaged.

No changing jobs without approval

Once an employment permit is issued, Article 40 of the Labor Code prohibits the alien from transferring to another job or changing employers without the prior approval of the Secretary of Labor. Employers and foreign nationals should treat the permit as tied to the specific role and employer described in the application.

Employers already with foreign staff

Article 41 of the Labor Code required any employer employing nonresident foreign nationals on the effectivity date of the Code to submit a list to the Secretary of Labor within thirty (30) days, indicating names, citizenship, foreign and local addresses, nature of employment, and status of stay in the country. The Secretary then determines whether the listed nationals are entitled to an employment permit. The same discipline applies today: keep the permit and the alien's status aligned with the actual employment.

Frequently asked questions

Can a foreign national work in the Philippines without an employment permit? No. Article 39 of the Labor Code requires an employment permit from the Department of Labor for an alien seeking admission for employment and for the employer who desires to engage the alien.

Can the employer apply for the permit instead of the foreign national? Yes. Article 39 allows the employment permit to be issued either to the nonresident alien or to the applicant employer.

Can a foreign employee switch employers after getting a permit? Not without prior approval. Article 40 prohibits transferring to another job or changing employer without the prior approval of the Secretary of Labor.

Practical takeaways

• Secure the Department of Labor employment permit before the foreign national begins work; Article 39 covers both the alien and the employer.
• Prepare evidence that no competent, able, and willing person in the Philippines was available at the time of application.
• If the enterprise is registered in preferred areas of investments, obtain the supervising agency's recommendation under Article 39.
• Align the alien's admission status under the Philippine Immigration Act of 1940 with the intended employment.
• Treat the permit as role- and employer-specific; Article 40 requires prior approval for any change of job or employer.

Primary sources

The rules discussed above are drawn from the following primary sources, as published in the Official Gazette and the national statute book.

• OMNIBUS RULES IMPLEMENTING THE LABOR CODE - OMNIBUS RULES IMPLEMENTING THE LABOR CODE

• Labor Code of the Philippines (Presidential Decree No. 442)

• Commonwealth Act No. 613, August 26, 1940

This article is general information and not legal advice. For your specific situation, consult a lawyer or ask ASG Legal AI.