Non-resident Alien Employees

1. Summary

▪ Foreigners or non-resident aliens are required to obtain an alien employment permit (AEP) prior to working in the Philippines.

▪ They are prohibited from transferring employment without prior approval from the DOLE Secretary.

▪ An employment contract is void if there is no alien employment permit.

2. Concept

Any foreigner or alien seeking admission to the Philippines for employment purposes and any domestic or foreign employer who desires to engage an alien for employment in the Philippines shall obtain an alien employment permit (AEP) from the Department of Labor and Employment. (Article 40, Labor Code)

3. Requirements

The employment permit may be issued to a non-resident alien or to the applicant employer after a determination of the 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. (Paragraph 2, Article 40, Ibid.)

For an enterprise registered in preferred areas of investments, said alien employment permit may be issued upon recommendation of the government agency charged with the supervision of said registered enterprise. (Paragraph 3, Article 40, Ibid.)

4. Prohibition against transfer of employment

After the issuance of an alien employment permit, the alien shall not transfer to another job or change his employer without prior approval of the DOLE Secretary. (Article 41[a], Ibid.)

Any non-resident alien who shall take up employment in violation of the foregoing rules and the implementing rules and regulations shall be punished in accordance with the provisions of Articles 289 and 290 of the Labor Code. (Article 41[b], Ibid.)

In addition, the alien worker shall be subject to deportation after service of his sentence. (Paragraph 2, Article 41, Ibid.)

5. No AEP, employment contract is void

Absent an employment permit, any employment relationship that a foreign national contemplated with a local Company is void for being contrary to law. A void or inexistent contract, in turn, has no force and effect from the beginning as if it had never been entered into. Thus, without an Alien Employment Permit, an employment contract is void and cannot be the source of a right or obligation. ( McBurnie v. Ganzon, EGI-Managers, Inc., G.R. Nos. 178934 & 178117, 186984-85, 17 October 2013)

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References

▪ P.D. 442, Labor Code of the Philippines

▪ Jurisprudence or Supreme Court Decisions