Getting Non "b" Without Work Permit?

[new farang]

Hi,

I've recently moved to Thailand with the purpose of setting up a branch of a family company. We've registered the company as a co., ltd. with a Thai board of directors. Because we are a small company (tour company) we cannot afford to hire 4 Thai staff yet. With this in mind, we've sought out ways to avoid getting me a work permit, while still getting me a visa that will allow me to stay for some length of time (not leave every 30 days for a few days). At the moment, my plan is to apply for a Non Immigrant "B" stating that I have been appointed by the board to see how the company office is doing, oversee, and report back to the board. I will request a multiple entry as well, but from what I have read this seems unlikely (in Phnom Penh). I've drafted the letter under the name of our Thai Managing Director.

I've also applied for the WP3 form in support of the Non-Immigrant B, though with no real intentions of applying for the work permit, as I won't be "working" in Thailand, just observing for the purposes of reporting back to the board.

Does it seem that this is a viable solution? Does anyone have recommendations? I would appreciate any input.

[Sunbelt Asia]

Because we are a small company (tour company) we cannot afford to hire 4 Thai staff yet.  With this in mind, we've sought out ways to avoid getting me a work permit,

Four Thai staff employed is NOT required to get a Thai work permit. If you wanted to apply for an Extension of Stay Permit based on Business then you would need 4 Thai employees employed at least at a minimum salary of 5,250 Baht. However it would be easy for you to get a work permit and then obtain a one year multiple entry visa where you just in and out every 90 days. You do not need 4 Thais in that situation.

Why did you register the board with Thai Directors? You only need one Director and that can be you as a foreigner.

If you are observing the company, you are working. In my opinion, get a work permit.

You may find otherwise the following may just happen. You build up the business and a call is made. This foreigner is working without a work permit and it could be the Thai Director!

I would bet based on the advice you have stated, that you have no control over the company as well with more voting rights or other strategies to protect your interest hence any profits/contracts can easily flow to the Thai board and shareholders.

Please be careful!

www.lawyer.th.com

Hi,

I've recently moved to Thailand with the purpose of setting up a branch of a family company.  We've registered the company as a co., ltd. with a Thai board of directors.  Because we are a small company (tour company) we cannot afford to hire 4 Thai staff yet.  With this in mind, we've sought out ways to avoid getting me a work permit, while still getting me a visa that will allow me to stay for some length of time (not leave every 30 days for a few days).  At the moment, my plan is to apply for a Non Immigrant "B" stating that I have been appointed by the board to see how the company office is doing, oversee, and report back to the board.  I will request a multiple entry as well, but from what I have read this seems unlikely (in Phnom Penh).  I've drafted the letter under the name of our Thai Managing Director.

I've also applied for the WP3 form in support of the Non-Immigrant B, though with no real intentions of applying for the work permit, as I won't be "working" in Thailand, just observing for the purposes of reporting back to the board.

Does it seem that this is a viable solution?  Does anyone have recommendations?  I would appreciate any input.

[new farang]

Four Thai staff employed is NOT required to get a Thai work permit.  If you wanted to apply for an Extension of Stay Permit based on Business then you would need 4 Thai employees employed at least at a minimum salary of 5,250 Baht. However it would be easy for you to get a work permit and then obtain a one year multiple entry visa where you just in and out every 90 days. You do not need 4 Thais in that situation.

From what I've read on the Thai Ministry of Labor's website, a company must employ at least 4 Thais for every one Foreigner work permit. My plan was to get a multiple entry, with a required leave every 90 days as you stated, but thus far I've only come across information stating that the company must first employ 4 Thai employees. Do you know where I could read more about this other work permit that does not require specific salary and employment strategies? Also, thank you for your concern. We do have contracts with our Thai director (a friend of ours) as well as power transfer agreements with members of the board. I appreciate your information, as you raised some great points. Please let me know how I can proceed with this other form of work permit.

[Sunbelt Asia]

From what I've read on the Thai Ministry of Labor's website, a company must employ at least 4 Thais for every one Foreigner work permit.

Not required to get a work permit. To get an extension of stay permit based on business, it is required. However, to get a one year multiple entry visa it is not required.

My plan was to get a multiple entry, with a required leave every 90 days as you stated, but thus far I've only come across information stating that the company must first employ 4 Thai employees.  Do you know where I could read more about this other work permit that does not require specific salary and employment strategies?

Royal Emblem

Department of Employment Regulations

Governing the Criteria of Considering Permitting the Work of Foreigners A.D. 2004

In order for the consideration of permitting the work of foreigners under Section 7and Section 8 of the Work of Foreigners Act A.D. 1978 to be exactly circumspect according to the spirit of the law, it is expedient to prescribe the criterion of considering permitting the work of foreigners.

By virtue of Section 32 of the State Affairs administration Regulations Act A.D. 1991 as amended by the State Affairs Administration Regulations Act (No. 5) A. D. 2001, the Director-General of Employment lays down regulations as follows:

Article 1. The regulations are called “The Department of Employment Regulations Governing the criteria of considering Permitting the Work of foreigners A.D. 2004”.

Article 2. These regulations shall apply form the 8th day of October A.D. 2004 onward.

Article 3. The following shall be rescinded:

(1) The Department of employment Regulations Governing the Criteria and the Conditions of Considering Permitting the Work of Foreigners A.D. 2002 dated May 22, 2002,

(2) The Department of Employment Regulations governing the Criteria and the Conditions of considering Permitting the Work of Foreigners (No.2) A.D. 2002 dated July 11, 2002,

(3) The Department of Employment Regulations Governing the Criteria and the Conditions of Considering Permitting the Work of Foreigners (No.3) A.D. 2003 dated February 5, 2003.

Clause 4. For the issuance of the work permit to the foreigners under Section 7 and Section 8, permission shall be considered as may be necessary and appropriate by taking account of:

(1) Security within the kingdom in the political, religious, economic and social aspects,

(2) Protection against foreigners coming to compete for the occupations that Thai nationals have the ability to do and keeping them sufficient in quantify for the demand of the labor market within the kingdom;

(3) The benefit from permitting the foreigners to work in that job position of bringing about the introduction of foreign currency to invest or spend in the country in large amounts, bringing about the employment of a large number of Thai nationals for the position being one requiring skill in modern technology useful to the economic development of the country and with such skill being transferred to Thai nationals.

(4) Skill development that Thai nationals will receive from the transfer by the foreigners who is permitted to work of knowledge and understanding of techniques and details about machines and tools and skill in modern technology to Thai nationals in that work;

(5) The principle of humanity.

Article 5. From the consideration of issuing the work permit under Article 4, permission may be granted according to the following criteria:

(1) For foreigners entering to work in financial institutions under the supervision of the Bank of Thailand or the Ministry of Finance or the government agency which supervises financial institutions, permission shall be granted according to the number prescribed in the certificate having a certificate from Bank of Thailand or the Ministry of Finance or the government agency writ supervise finance in situations.

(2) Foreigners under a certificate issued by the central government, the provincial government, the local government, the state enterprise or the public organization under the public organization law which specifies the name, the position and the work period of that alien.

(3) Foreigners working for an employer whose investment size from the paid up registered capital is not lower than Baht two million, the rate being one alien permitted for every Baht two million, or an employer registered as a juristic person abroad and entering to do business in Thailand whose investment size from the money introduced from abroad is not lower than Baht three million, the rate being one alien permitted for every Baht three million, or a place of business registered as a juristic person abroad and entering to do business in Thailand prior to October 30, 2002 that has no evidence of introducing money from abroad: consideration shall be done from the size of investment from the amount of the balance appearing in 6 retrospective months’ bank statement, an amount of Baht three million or more, the rate being one foreigners permitted for every Baht three million, unless the alien has a Thai spouse in a lawfully registered marriage and in open cohabitation, in which case such investment size as prescribed shall be reduced by one half, in which a maximum of ten foreigners may be permitted, save considering permitting as may be appropriate in any of the following cases:

(a) Working for an employer who has paid tax to the government in the past year cycle not less than Baht three million;

(B Working for an employer doing a business of exporting goods and introducing foreign currency into the country not less than Baht three million in the past year;

(-C) Working for an employer doing a tour business with not fewer than five thousand introductions of foreigners to visit Thailand in the past year cycle;

(d) Working for an employer who employs not fewer than one hundred Thai nationals;

(4) Foreigners working for an employer whose investment size from the paid up registered capital is not lower than Baht two million or an employer registered as a juristic person abroad and entering to do business in Thailand, whose investment size from the money introduced from abroad is not lower than Baht three million: in any of the following case the limitation regarding the number of foreigners under Article 5 (3) shall not apply:

(a) Foreigners doing a Technology work which Thai nationals are still unable to do or in which Thai nationals are available in number not sufficient for the demand of the domestic labor market, which technology shall be transferred to at least two Thai national within the prescribed period;

(B Foreigners working by applying specialized skill for a work to be accomplished under a definite project;

(-C) Foreigners working in an entertainment, amusement or musical business, the character of whose employment are occasional and definite;

(5) Foreigners working in a foundation, association or any other organization whose objectives are non-profit making and in the interests of the society as a whole: the criterion in Article 5 (3) shall not apply;

(6) Foreigners coming to be attached to the representative office of a foreign justice person in an international trade business, who comes to give advice in various aspects about the goods of the head office distributed to an agent or user, the dissemination of various sorts of information about the goods or services of the head office and the reporting of business movements in Thailand to the attention of the head office: a maximum of two person may be permitted; the alien coming in to look for goods or service purchase sources in Thailand for the head office, check and control the quality and the quantify of the goods that the head office buys or employees to produce in Thailand: a maximum of two persons may be permitted, unless that representative office can find goods or service purchase sources for the head office and the head office has ordered goods or services from producers in Thailand in a value of goods or service ordering in the past year not less than Baht one hundred million;

(7) Foreigners coming in to be attached to the regional office of a juristic person organized under the law of a foreign country and going to do business in another country in order to render services in various aspects, e.g. liaison and supervision of the operation of a subsidiary or affiliated company located in the same region as the head office, counseling or rendering the services of organizing transiting and personnel development, financial management, market control and sales promotion planning, product development, and research and development by coming an income from rendering those services and having no power to receive purchase orders or sale offers or negotiate business-doing with persons or juristic persons in the country of location, by receiving expenses from the head office only: a maximum of five persons may be permitted, unless than regional office has introduced money to spend in Thailand in the past year cycle not less than ten million baht.

Article 6. Regarding considering issuing the work permit under Article 4 to foreigners who apply for permission to work for a natural person employer who is not one having the character under Article 5, permission may be granted according to the following criteria:

(1) Foreigners working for an employer earning an income form business operation in the past year cycle or the amount year: one person may be permitted for every Baht seven hundred thousand, the maximum being three person;

(2) Foreigners working for an employer who has paid taxes to the government in the past year cycle: one person may be permitted for every Baht fifty thousand, the maximum being three person;

(3) Foreigners working for an employer having Thai employees: one person may be permitted for every four Thai employees, the maximum being three persons.

Article 7. The criterion under paragraph one shall be reduced by one half in the case where the permit applicant alien has a Thai spouse in a lawfully registered marriage and in open cohabitation.

Article 8. Considering permitting otherwise than the cases or criteria herein prescribed shall be the power of the Director-General.

Article 9. Applications that the authorities have receive prior to the effective date hereof shall be treated according to the Department of Employment Regulations Governing the Criteria and the Conditions of Considering Permitting the Work of Foreigners A.D. 2002 dated May 22, 2002, the Department of Employment Regulations Governing the Criteria and the Conditions of Considering Permitting the Work of Foreigners (No. 2) A.D. 2002 dated July 11, 2002, and the Department of Employment Regulations Governing the Criteria and the Conditions of Considering Permitting the Work of Foreigners (No. 3) A.D. 2003 dated February 5, 2003.

Article 10. The Director-General of Employment shall be the person in charge of the functions hereunder.

Given this 30th day of September A.D. 2004

-Signed-

(Mr. Chuthathawat Intharasuksi)

Director-General of Employment Department

As you can see 4 Thai employees are not required for a work permit except if you apply for permission to work for a natural person employer and this is the criteria you chose rather than criteria # 1. Foreigners working for an employer earning an income from business operation in the past year cycle or the amount year: one person may be permitted for every Baht seven hundred thousand or criteria # 2. Foreigners working for an employer who has paid taxes to the government in the past year cycle: one person may be permitted for every Baht fifty thousand, only choice #3 would be 4 Thais employed per work permit

You are NOT working for a sole proprietor as it is a Thai limited company so meeting 1 of these 3 criteria does not even apply. No where else does it mention 4 Thais employed per 1 Foreigner in the regulation.

Also, thank you for your concern.  We do have contracts with our Thai director (a friend of ours) as well as power transfer agreements with members of the board.

Are these power transfer agreements registered with the Thai government? This is the problem with proxy votes.

www.lawyer.th.com