The Alien Working Act (the Act) requires all foreigners working in Thailand to obtain a work permit prior to starting work in Thailand. An updated version of the Act, adopted in 2008, describes the procedure of issuance and maintenance of work permits, and lists certain occupations from which foreigners are excluded.
- Visa exemption and visa on arrival
Foreigners are required to hold a visa when entering Thailand, unless they are eligible for a visa exemption (e.g., eligible for citizens of the EU, USA or Japan). In contrast, a visa on arrival is granted to a person who is not eligible for the visa exemption, and who applies for a visa on arrival at immigration border check-points and international airports in Thailand. However, foreigners entering Thailand either by visa exemption or visa on arrival cannot obtain a work permit unless they request a conversion into a business visa.
- Non-Immigrant “B” Visa
- A foreign citizen intending to work or conduct business in Thailand must apply for a Non-Immigrant “B” visa prior to entering Thailand. The Non-Immigrant visa type is of special importance, as it is the only visa for foreigners staying temporarily in Thailand that entitles them to apply for a work permit.
- Since 2015, Non-Immigrant “B” visa applications at most Thai embassies and consulates throughout Asia require a confirmation letter from the Labour Department (WP 3 Form) which serves as a confirmation that the requirements for the issuance of a work permit are fulfilled.
- Possession of a business visa does not allow anyone to work in Thailand unless the holder also obtains a work permit.
- Without a work permit, a Non-Immigrant “B” visa only permits the holder to explore business opportunities (e.g. attend meetings etc.), as long as such activities are merely of temporary in nature.
- Work Permit
According to the Alien Working Act all foreigners need to hold a work permit before starting any type of work in Thailand. The work permit, to be applied for at the Department of Labour and Social Welfare, is generally valid for 1 year and can be extended prior to its expiry.
- Essential Work Permit Requirements
- The most important part of the work permit is the job description, as it determines what kind of work may be performed by the foreigner and at which location.
- Employers must demonstrate what type of work each foreigner will be undertaking and why a foreigner shall be employed instead of a Thai.
- Work Permit approved by the Board of Investment
- A work permit can also be issued by the Board of Investment (BOI) if the specific position has been approved by the BOI.
- This work permit only applies to foreign nationals who are skilled workers, experts or persons who enter the Kingdom of Thailand for the purpose of studying investment opportunities.
- BOI-promoted companies must submit the applications for their foreign staff’s work permits online through the so-called eExpert system.
- A foreigner can already start working in the authorised position while the application is being processed.
- Any foreigner who works without a valid work permit or who violates the working conditions stipulated in the work permit, may be punished with imprisonment not exceeding five years (rather notional) or a fine of between THB 2,000 (approx. EUR 50) and THB 100,000 (approx. EUR 2,500), or both. Foreigners, who work in fields reserved solely for Thais, will additionally be fined up to THB 20,000 (approx. EUR 500).
- An employer who employs a foreigner without a work permit or in violation of the conditions stipulated in the work permit may be fined between THB 10,000 (approx. EUR 250) and THB 100,000 (approx. 2,500 EUR).
- Exemptions from Work Permit Requirements
While most foreigners have to apply for a work permit and may not begin working until the permit is issued, the Alien Working Act does provide exemptions:
- Urgent and Essential Work
- Exemption from work permit requirements is granted for foreigners who enter the Kingdom temporarily, but in accordance with the Immigration Law, in order to perform any work of an “urgent and essential nature” for a period not exceeding 15 days.
- However, such foreigners may engage in work only after written notification on a prescribed form, signed by the foreigner and endorsed by the employer, has been submitted to, and accepted by the Labour Department. It only takes one day to apply.
- The term “urgent and essential work” is not explicitly defined and, consequently, the issuance of this sort of exemption is a matter of administrative discretion.
- Further exemptions apply for workers at local conventions or an exhibitions.
- Activities not considered as “work”
According to the Announcement of the Department of Employment dated 6 March 2015, the following activities are not considered as “work” anymore and therefore do not require a work permit:
- Attending a meeting, a discussion, or a seminar;
- Attending an exhibition or a trade show;
- Attending a business trip or a business discussion;
- Attending a special or academic lecture;
- Attending a training and a technical seminar;
- Purchasing goods in a trade show; and
- Attending a Board of Directors meeting of one’s own company.
As the legal consequences can be quite severe, every employer and employee should consider the requirements for a work permit carefully. In view of the complexity of the matter, professional advice should be obtained rather than applying for a work permit on your own.