Update on Visa and Work Permit Laws

1. 0
American Chamber of Commerce
Legal Committee
SME & Start-up Committee
4th September 2019
Rambrandt Hotel, Bangkok
Update on Visa and Work Permit Laws
Kowit Somwaiya
Managing Partner
LawPlus Ltd.

2. 1
The information provided in this document is general in nature and may not
apply to any specific situation. Specific advice should be sought before taking
any action based on the information provided. Under no circumstances shall
LawPlus Ltd. or any of their directors, partners and lawyers be liable for any
direct or indirect, incidental or consequential loss or damage that results from
the use of or the reliance upon the information contained in this document.
Copyright © 2019 LawPlus Ltd.

3. 2
Kowit Somwaiya
• Managing Partner, LawPlus Ltd.
• Managing Partner, LawPlus Myanmar Ltd.
• Board of Directors, INTA
• Anti-Counterfeiting Committee, APAA
• B.A. (Education – English), Ubon Ratchathani Rajbhat University
• LL.B., Thammasat University
• LL.M., University of Illinois
• Certificate of Instruction for Lawyers, Harvard Law School

4. 3
Unit 1401, 14th Floor, 990 Abdulrahim Place, Rama IV Road, Bangkok 10500, Thailand
Tel. +66 (0)2 636 0662, Fax +66 (0)2 636 0663
www.lawplusltd.com

5. 4
• Professional, Practical, Prompt, Pro-active
• Established in 2003
• Major practices
 Intellectual Property
 Corporate and M&A
 Banking and Finance
 Telecommunications, Media, Technology and Digital Economy
 Dispute Resolution and Litigation
 Real Property and Infrastructure
• Rankings
• www.lawplusltd.com

6. 5
Major Laws on Visas and Work Permits
• Immigration Act B.E. 2522 (1979) (“IA”) as amended by
(1) Immigration Act (No. 2) B.E. 2523 (1980)
(2) Immigration Act (No. 3) B.E. 2542 (1999)
(3) Notification No. 87/2557 of the National Council for Peace and Order
B.E. 2557 (2014)
(4) Notification No. 42/2560 of the National Council for Peace and Order
B.E. 2560 (2517)
(5) Emergency Decree on Amendments to the Immigration Act B.E. 2561
(2018).
• Emergency Decree on Foreign Employee Management B.E. 2560 as
amended by Emergency Decree on Foreign Employee Management
(No. 2) B.E. 2561 (2018) (“ED”)

7. 6
Key Terms under the ED?
• “Work” means engaging in any occupation with or without employer,
except for the operation of business by a licensee under the foreign
business law.
• “Foreigner” means a natural person who is not of Thai nationality.
• “Employer” means an employer under the law on labor protection and
shall also include a natural person or a juristic person intending to bring
a foreigner for working in the country with himself or itself.
• “Employee” means a person who works for an employer in return for
wages.
• “Work permit” means a work permit of a foreigner.

8. 7
Exemptions of Work Permits under Section 4 of ED
• Persons who can work in Thailand without a work permit:
(1) Members of a diplomatic corp
(2) Members of a consular mission
(3) Representatives and officials of the United Nations and its specialized agencies
(4) Personal servants from abroad to work for persons under (1), (2) or (3)
(5) Persons who perform duties or missions under an agreement between the government of
Thailand and another foreign government or international organization
(6) Persons who enter Thailand occasionally to organize or attend meetings, to demonstrate
in conferences, seminars, to participate in art exhibition, culture, sports, or other activities
as may be prescribed by the Cabinet with appropriate period of time and conditions
(7) Persons entering Thailand to invest or operate business or experts or highly-skilled
professionals that are beneficial to the country’s development as may be prescribed by the
Cabinet
(8) Representatives of foreign legal entities granted foreign business licenses under the
foreign business law.
• Smart Visas or Non-Immigration Visa “B” remain required for persons granted exemptions of
work permits under (7) and (8) above.

9. 8
Cannot Work Cannot Hire without a Work Permit
• A foreigner shall not work without a work permit or work outside the right
to work in violation of the ED (Section 8).
• No person shall accept a foreigner to work without a work permit or allow
a foreigner to work outside the right to work in violation of this ED
(Section 9).

10. 9
Necessary Work and Urgent Work
• Foreigners can enter Thailand and perform urgent and necessary
work or special work for 15 days upon giving a notice to the
Registrar (Section 59).
• An extension of time for another period of 15 days is possible upon
giving a second notice to the Registrar before the end of the first 15 days
(Section 61).
• 16 necessary works and urgent works are listed under the notification
of the Department of Employment dated 28 June 2017.

11. 10
Notice to Registrar
• Employer must notify the Registrar of name, nationality and nature
of work of foreign employee within 15 days from his employment date
and also notify the Registrar within 15 days after employee resigns or is
terminated (Section 13).
• Employee must notify the Registrar of information about his
employer, place of work and nature of work within 15 days from his
employment date and notify the Registrar every time he changes
employer (Section 64/2).

12. 11
Penalties for Employees
Offences Penalties
Not notifying Registrar of his employer Fine up to THB20,000
Not notifying Registrar of change of employer Fine up to THB20,000
Working without a WP Fine of THB5,000 to
THB50,000 + repatriation

13. 12
Penalties for Employers
Offences Penalties
Hiring foreigner without a work permit Fine of THB10,000 to
THB100,000 per employee
Repetition of offence on hiring foreigner without a
work permit
- Fine of THB50,000 to
THB200,000
- Imprisonment not more than
1 year
- Being barred from hiring
foreigner for 3 years
Not notifying Registrar of hiring or ending of
employment of foreign employee
Fine up to THB20,000

14. 13
Visa and Work Permit for BOI Skilled Employees
• Skilled employees:
− are President, Managing Director, General Manager, Factory Manager, CFO,
Production Engineer, etc.
− must have education and experience requirements required by BOI for
business of employer.
• Terms of visa and WP depend on type of promoted business, such
as
− 4 years for IHQ
− 2 years for software development
− 1 year for data center

15. 14
Obtaining Visa and WP for BOI Skilled Employees
No. Action By From
Timeframe
(Working Days)
1. Obtaining a Non-Immigrant B
visa abroad
Employee Thai Embassy
outside Thailand
Variable
2. Obtaining a username and a
password for using the BOI e-
Expert System
Employer One Stop Service
Center for Visa
and Work Permit
(OSS)
2-5
3. Obtaining an approval from the
BOI for positions of skilled
employees
Employer BOI e-Expert
System (online)
5-20
4. Obtaining an approval from the
BOI for appointment of each
skilled employee in the approved
position
Employer BOI e-Expert
System (online)
5
5. Obtaining a visa and a work
permit
Employee OSS 1

16. 15
Visa and Work Permit for BOI Unskilled Employees
• Unskilled Employees are factory workers, fishery labours, housemaids,
etc.
• Term of visa and work permit is not more than 2 years, renewable for
another period of not more than 2 years.
• From 1st January 2019, BOI promoted companies can employ unskilled
employees only from Cambodia, Laos and Myanmar.

17. 16
Obtaining Visa and WP for BOI Unskilled Employees
No. Action By From
Timeframe
(Working Days)
1. Obtaining approval to bring
unskilled employees into
Thailand
Employer Bangkok Employment
Office (“BEO”) or
Provincial Employment
Office (“PEO”)
1
2. Obtaining an approval to bring
selected unskilled employees
to work in Thailand
BEO or
PEO
Relevant authorities in
home country
Variable
3. Obtaining an approval for
selected unskilled employees
to work in Thailand
Employer BEO or PEO 1
4. Obtaining a Non-Immigrant L-
A visa
Employee Thai embassy located in
home country
Variable
5. Attending a training workshop Employee Post-Arrival and
Employment Termination
Center
1
6. Health check-up Employee Hospital in Thailand 1
7. Obtaining a work permit Employee BEO or PEO 7

18. 17
Smart Visa – Who Are Eligible and How to Obtain It?
• Qualified experts, executives, investors, entrepreneurs and their
spouses and children.
• Investing in one of the 12 targeted industries.
• Must first obtain a Qualification Certificate from the OSS of the BOI or
Thai Embassy or Thai Consulate in home country.
• Must obtain a smart visa from OSS or Thai Embassy or Thai
Consulate in home country within 60 days from Qualification Certificate
date.

19. 18
Terms and Benefits of Smart Visa
Types
Permitted Terms
and Renewal
Terms
Benefits
Working without
a work permit
Residence
Reporting only
once a year
Re-entering
Thailand without a
re-entry permit
Talent
(SMART “T”)
Per employment
contract but not
more than 4 years
  
Executive
(SMART “E”)
Per employment
contract but not
more than 4 years
  
Investor
(SMART “I”)
Not more than 4
years
  
Startup
(SMART “S”)
Not more than 2
years
  
Spouses and
Children
(SMART “O”)
Same as related
smart visa holder
  

20. 19
Smart Visa Implementation Rules
• Ministry of Interior Notification on Special Permission for Foreign Experts, Investors,
Executives and Entrepreneur to Reside in Thailand on Special Basis B.E. 2561 dated 30th
January 2018.
• BOI Notification No. Por. 4/2561 on Qualification, Terms and Conditions for Smart Visa
B.E. 2561 dated 1st February 2018
• BOI Notification No. Por. 5/2561 on Procedures for Requesting Qualification Certificate
for Foreigners to Obtain Smart Visa B.E. 2561 dated 1st February 2018
• Immigration Bureau Order No. 20/2561 on Special Permission for Foreign Experts,
Investors, Executives and Entrepreneur to Reside in Thailand on Special Basis B.E. 2561
dated 1st February 2018
• Immigration Bureau Order No. 234/2561 on Special Permission for Foreign Experts,
Investors, Executives and Entrepreneur to Reside in Thailand on Special Basis B.E. 2561
dated 24th October 2018
• Immigration Bureau Order No. 150/2562 on Special Permission for Foreign Experts,
Investors, Executives and Entrepreneur to Reside in Thailand on Special Basis B.E. 2562
dated 10th April 2019
• Ministry of Labour Notification on Special Permission for Foreign Experts, Investors,
Executives and Entrepreneur to Reside in Thailand on Special Basis B.E. 2562 dated 3rd
May 2019