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Thai Executive Business Visas: No Work Permit More Problems?

Transcript of the above video:

As the title of this video suggests, we are discussing Thai Business Immigration; so we are discussing Business Visas as opposed to discussing Retirement Visas which I have been discussing at length lo these past few weeks but the fact of the matter is that was more being done so it as a public service.  

Primarily, what we handle within our corporate practice is Corporation set up for foreign nationals or Amity Treaty Corporations as well as a lot of Business Immigration matters; Thai B Visas, Thai Work Permit issuance etc.  

An article came to my attention. Now it's not exactly timely because it dates from 24th December, 2018. For those who have kept track of this channel, about a week or two prior to that date I had done a video and I will get into this in a little bit more depth, but I had done some videos regarding my position and I still believe this, that for example Amity Treaties, Treaties they are certified pursuant to the terms of the US-Thai Treaty of Amity of 1966, do not fall under the normal categorization of a foreign business pursuant to the provisions within the Treaty which stipulate certain National treatment which has to be maintained for the nationals of the countries involved, AKA Thailand and the United States.

What am I getting at here?  There have been some developments and I think to their credit, the Authorities that have to deal with making policy with respect to Thai Business Immigration and Work Permit and Labour Policy I think their hearts and their minds were in the right place when making sort of certain policy changes that have come upon the scene lo these past roughly three or four months.  But that being said, the sort of knock on ripple effects that have happened as a result of this have been problematic and the article that I will quote and some of the further analysis I will do after quoting this article, hopefully will bring that into a little bit sharper focus for the viewer as to what exactly we are talking about here. 

But the article, again from 24th December, 2018. The article is titled, Who Needs a Work Permit?  Making Rules Simpler Creates Complications and this is from the Bangkok Post, Quoting directly: "The New Foreigners Working Management Decree Number 2, BE 2561 significantly alters the previous Decree.  According to the current interpretation of the Employment Department, Ministry of Labour, persons who are a representative of a foreign juristic person that has received a foreign business operation license according to the Foreign Business Act are entitled to a special exemption."  and the Exemption from what? The exemption from needing a work permit. I am paraphrasing there but that's what we're getting at with this article.

Before I quote further let me get into some analysis.  What we're talking about is in the past anybody that was a foreigner coming to Thailand, working in any capacity, needed a Work Permit. Now, under this new decree, foreign businesses or businesses that have been granted a Foreign Business License, no longer need to obtain or at least presumably the executives of those companies, notably directors, no longer need to obtain work permits. It is not a requirement anymore according to the new labor regulations.  That being said, this causes knock on problems and I will get to that here in a moment. 

So quoting further, "The first potential problem may arise when a foreigner needs to apply for a non-immigrant B visa to come to work in Thailand. The majority of Thai Embassies and Consulates around the world require a pre-work permit approval before they will issue the Visa."  Quoting further,”The Employment Department will not issue a pre-work permit approval because it is not required by law."  This is one of those situations where getting rid of a requirement kind of results in a catch-22 situation. Again a couple of degrees separated from the issue at hand, but problematic none the less. What am I talking about here?  Well again, an Embassy or Consulate abroad wants to see this certain document, it is called a WP3; we have done videos on this topic before. They want to see this before they are going to issue a B Visa. Well if you are working a capacity that no longer needs a Work Permit, the Labour Department presumably won't issue that document. If you are in that capacity, they won't issue the document at least according to this article and some other things I have heard anecdotally. 

Let me finish quoting and I will get back to this. "However, after encountering a number of problems described above, one frustrated foreigner decided he would like to have a work permit even if it is not required!"  Now I have been saying this for some time now, and I will get to it further, but let me let me finish quoting.  "When we tried to request a Work Permit for this Foreigner, the Employment Department turned down the application citing the new regulation. We can only hope that if the Thai Government receives enough complaints about this problem, a solution can be found." A couple of things. First off, and they mentioned it in the article, and I are urge those who are watching this video, check that article out if you are really interested. Again, Who Needs a Work Permit? Making Rules Simpler Creates Complications. Again Bangkok Post, It is very insightful. 

There are some ways in which a Work Permit can be issued notwithstanding the changes in regulations. We have had to deal with this and we have got Work Permits issued notwithstanding the regs. Another thing to keep in mind; this is just sort of a side issue.  I have done a specific video on this topic.  That issue is the fact that Thai Amity Companies, Corporations which are formed in the Kingdom of Thailand, are primarily owned by Americans and therefore can be certified pursuant to the Treaty. Those companies I do not believe fall under this law. I stand by my analysis on this because pursuant to the provisions of the Treaty, those companies are granted National treatment. They are treated as if they were simply a Thai owned company pursuant to the provisions of the Treaty. These new regulations pertain to Foreign Business License Corporations which are licensed pursuant to the Foreign Business Act.  The Amity Treaty operates, for lack of better term, concurrently but its provisions when they conflict with the Foreign Business Act, its provisions supersede the Foreign Business Act, supersede might not be the right word but  they operate in such a way as to make the provisions of the Foreign Business Act  irrelevant because those with Treaty Certification are again granted National treatment so that company is treated as if it were a Thai Company; it is not treated as if it were a foreign-owned company. It is treated as if it were Thai company and executives of a Thai company need to get work permits because they are not foreign business licensed. So on the Amity side of things I don't think this whole analysis is overly relevant to Amity Corporations. 

Meanwhile the thing to take away from this particular video is it is unfortunate and I think that the powers-that-be were trying to make the overall system easier but the result is, because the Work Permit has become so entrenched, and they mentioned in the article, things like driving licenses and bank accounts, nearly impossible to obtain in Business Visa status without a Work Permit.  I have heard anecdotally from people who have said,  it has been a real problem since this rule has changed because banks don't know the changes in the rules, various aspects of the Immigration apparatus have not been made brought up-to-date, visa issuance at Thai Consulates and Embassies abroad,  driving licenses can be more difficult.  Just across the board there is just difficulty associated with keeping up one's status and getting different documentation because the system has not realigned itself to deal with this change in the rules. My personal opinion is I think that some relaxation will occur whereby folks will be allowed to go ahead and obtain a Work Permit notwithstanding the fact that they are a Director of a foreign corporation. The other thing is I also think from the standpoint of getting a Work Permit issued, even under the current regime, there are ways through it, there are ways to deal with it, there are ways to deal with it in such a way that a Work Permit can be issued notwithstanding the changes and regulations.  

But moving forward I think it's notable because, Yes while on the one hand again the Immigration Apparatus and the Labour Department and the Cabinet were all trying to go ahead and make some changes to rather liberalize the system, but in many ways one change can result in a lot of unforeseen consequences down the road.