Wp As Sole Proprietor Under Treaty Of Amity

[haroldc]

A friend told me Sunbelt reported that work permit extensions for sole proprietors under the US-Thai Treaty of Amity now need 4 Thai employees. Is this actually a requirement now? My WP is due to be renewed 3 August.

I've had a sole proprietor WP since 1992. I'm a self-employed technology and technology management consultant. I've never had any staff and I have no need or reason to have any staff.

If this is true, it would seem to be a blatant violation of paragraphs 3 and 4 of Article IV of the Treaty:

4. Enterprises which are or may hereafter be established or acquired by nationals and companies of either Party within the territories of the other Party and which are owned or controlled by such nationals and companies, whether in the form of individual proprietorships, direct branches or companies constituted under the laws of such other Party, shall be permitted freely to conduct their activities therein upon terms no less favorable than like enterprises owned or controlled by nationals of such other Party or of any third country.

5. Nationals and companies of either Party shall enjoy the right to control and manage the enterprises which they have established or acquired within the territories of the other Party, and shall be permitted without discrimination to do all things normally found necessary and proper to the effective conduct of enterprises engaged in like activities.

My reading of paragrpah 4 is that, unless a Thai national working as a self-employed technology and technology management consultant is required to have 4 Thai employees, requiring me to have 4 Thai employees constitutes less favorable terms. My reading of paragraph 5 is that I have the same right to control and manage my business as does a Thai national, and if doing so requires that I also have a work permit, the Ministry of Labor consequently must issue it.

Has anyone ever been denied a Treaty sole proprietor WP on the grounds of not having 4 Thai employees? If so, has anyone gone through the appeal process and/or filed suit in the Administrative Court?

[ytivarg]

This is totally insane. They know that they are pushing it when they require 4 Thai employees for US-Thai Treaty of Amity companies. Why are they doing this? I can't figure it out myself. Good luck to you.

[joskydive]

I'm sure the Treaty of Amity Agreement with the USA was up for review and renewal last year but didn't follow the outcome to know the results.

[Sunbelt Asia]

A friend told me Sunbelt reported that work permit extensions for sole proprietors under the US-Thai Treaty of Amity now need 4 Thai employees. Is this actually a requirement now? My WP is due to be renewed 3 August.

I've had a sole proprietor WP since 1992. I'm a self-employed technology and technology management consultant. I've never had any staff and I have no need or reason to have any staff.

If this is true, it would seem to be a blatant violation of paragraphs 3 and 4 of Article IV of the Treaty:

4. Enterprises which are or may hereafter be established or acquired by nationals and companies of either Party within the territories of the other Party and which are owned or controlled by such nationals and companies, whether in the form of individual proprietorships, direct branches or companies constituted under the laws of such other Party, shall be permitted freely to conduct their activities therein upon terms no less favorable than like enterprises owned or controlled by nationals of such other Party or of any third country.

5. Nationals and companies of either Party shall enjoy the right to control and manage the enterprises which they have established or acquired within the territories of the other Party, and shall be permitted without discrimination to do all things normally found necessary and proper to the effective conduct of enterprises engaged in like activities.

My reading of paragrpah 4 is that, unless a Thai national working as a self-employed technology and technology management consultant is required to have 4 Thai employees, requiring me to have 4 Thai employees constitutes less favorable terms. My reading of paragraph 5 is that I have the same right to control and manage my business as does a Thai national, and if doing so requires that I also have a work permit, the Ministry of Labor consequently must issue it.

Has anyone ever been denied a Treaty sole proprietor WP on the grounds of not having 4 Thai employees? If so, has anyone gone through the appeal process and/or filed suit in the Administrative Court?

If you talk with the U.S. commercial service they will tell you that just because you have Amity does not guarantee you the right to a work permit. The work permit is another division.

As for Thais applying in the USA under the E-2 investor visa via the Amity Treaty. Unfortunately there are no hard and fast rules as to which businesses will qualify for visas for Thais to own the business and work and which won't, as some factors may count more heavily than others.

However consensus guidelines are that they like to see five American employed or at the very least there should be ideally at least two current full time employees OR equivalent part time employees OR it can be shown that the investment in some way has a significant impact on the local economy. If there are no current employees but the business profits can clearly support American employees (and a good case can be made that the investor will employ new American workers), this may also qualify. Bottom line Thais in most all cases are required to employ Americans.

The USA-Thai Amity treaty was set to expire on December 31st 2004 but has been extended. For a short time from mid Jan- March 2006 the Thai government stopped taking new applications. They then reopen the window in April 2006 for new application in a three month time frame. This was extended every three months till December 2006 when it was extended indefinitely until further notice.

In Jan 2007 for several months we had a very hard time getting new work permits for Amity treaty companies as the requirements changed everyday from showing some cash in the bank to showing 2 million Baht transferred from overseas. The USA commercial services called the Labor Dept countless times with no returned calls. Finally an appointment was made and then cancelled. They then stopped this criterion which was the correct decision as in August 2004, the two sides had already agreed that in August 2009, that Amity treaty companies will require three million Baht registered capital and that this money was transferred overseas. They were jumping the gun in Jan 2007.

In Thailand, what requirements are set for new applicants are not necessary required for old work permit holders which may be grandfathered in and the Labor Dept. exercises considerable discretion. For new applicants of a Sole Proprietorship the Labor Dept wants to see 4 Thai employees or 2 Thai employees if you are married to a Thai. This is per the Work permit regulations.

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