DOLE issues new Rules and Regulations on the Employment of Foreign Nationals

The Department of Labor and Employment (“DOLE”) issued Department Order No. 248-25 (“DO 248-25”), which outlines the new rules and regulations regarding the employment of foreign nationals in the Philippines. This order has introduced key changes to the application and issuance process of an alien employment permit (“AEP”) as compared to the old Department Order No. 221-21. An AEP is a permit issued by the DOLE to a foreign national who, consistent with national development objectives, has the capacity and qualifications to be engaged in gainful employment by an employer in the Philippines in a position which no Filipino national is competent, able, and willing to perform at the time the application for AEP is filed. 

First, as a precondition for an application, the employer must conduct a labor market test, which includes making a publication in compliance with the prescribed requirements. Under DO 248-25, the publication must be made in: (i) a newspaper of general circulation, (ii) the PhilJobnet, and (iii) the Public Employment Service Office (“PESO”) or Job Placement Office (“JPO”) having jurisdiction over the intended place of work. 

Second, DO 248-25 recognizes an exemption from the publication requirement if the foreign national is being hired for a corporate officer position, as identified in the company’s Articles of Incorporation, By-laws, or General Information Sheet, and as certified by the corporate secretary.

Third, DO 248-25 changes the period for filing an AEP application to within fifteen (15) calendar days after publication, and within fifteen (15) calendar days from the execution of the contract of employment between the employer and the foreign national or the issuance of an appointment. The effectiveness of the employment contract or appointment shall be conditioned on the issuance of an AEP by DOLE in favor of the foreign national. Furthermore, an application for AEP may be filed and processed while the foreign national intended to be hired is still outside the country, provided that no AEP shall be released unless the foreign national has entered the Philippines with the appropriate employment or working visa. 

Fourth, DO 248-25 mandates that foreign nationals who fall under the listed exemptions and exclusions and intend to be employed in the Philippines shall request a certificate of exemption or exclusion by submitting the listed requirements under Section 2, Rule V. 

Fifth, and as a general rule, a foreign national shall only be engaged or assigned in the position for which the AEP was issued. However, under exceptional cases outline in DO 248-25, the foreign national may be permitted to take on an additional position, provided that the necessary requirements are met. An additional position pertains to a position to be performed by a foreign national who has a subsisting AEP with the same employer or with the latter’s related company but under a job category, title, description and functions distinct from the position for which the original AEP was issued. The applicant must submit sufficient proof that: (i) there is no conflict between the duties and responsibilities of the original and additional positions, and (ii) the foreign national has the capacity to effectively perform the responsibilities of both positions under the same employer.

Sixth, in line with the policy to promote human resource development and ensure the effective transfer of skills, knowledge and technology to Filipinos, DO 248-25 requires covered employers and foreign nationals to adopt a Skills Development Program (“SDP”) and Understudy Training Program (“UTP”). SDP refers to a training plan of an employer which is: (i) granted fiscal incentives by the government, (ii) engaged in priority or strategic areas of investments, or (iii) operating a public utility designed to transfer technology or skills possessed by a foreign national employed by such employer to at least two (2) regular rank-and-file Filipino employees per foreign national employed therein through learning sessions or any similar training modalities. On the other hand, UTP refers to a training plan of an employer which is (i) granted fiscal incentives by the government, (iii) operating a public utility designed to transfer technology or skills possessed by a foreign national to at least two (2) understudies who are regular employees of the employer and who are next-in-rank to such foreign national. 

Lastly, DO 248-25 lists down prohibited acts of the employer and foreign national to include: (i) any act of misrepresentation, false statement, tampering, fraud or other analogous or similar act that constitutes a ground for denial of an application for AEP under Section 10 (a) and (b) of Rule II, (ii) any act that constitutes a ground for revocation of an AEP under Section (a), (b), (c), and (e) of Rule IV, or (c) deliberate and willful disregard or non-compliance with any of the provisions of DO 248-25.