The COVID-19 pandemic impelled local companies, such as those in the Information Technology-Business Process Management (IT-BPM) sector, to transition from onsite work to work-from-home (WFH) arrangements. The concept of “remote work” allowed these companies to continue providing their services during the height of the pandemic without compromising the health and safety of their employees. Now that more people have returned to working onsite, albeit with corresponding health precautions, it cannot be denied that WFH arrangements remain to be a viable long-term solution to curb the health and safety risks associated with the COVID-19 virus.
With respect to IT-registered business enterprises (RBE) of the Philippine Economic Zone Authority (PEZA), the permanent adoption of up to 100% WFH set-up posed an issue on the fiscal incentives that these companies should supposedly enjoy. Under Section 309 of the Corporate Recovery and Tax Incentives for Enterprises (CREATE) Act, any project or activity that is performed outside the geographical boundaries of the economic zone shall not be entitled to the incentives provided by the said law. The concerned companies and their employees are thus constrained to revert to 100% onsite work or they will otherwise be excluded from availing their fiscal incentives.
To address the issue, the Fiscal Incentives Review Board (FIRB), an inter-agency body chaired by the Department of Finance, issued Resolution No. 026-22 on 14 September 2022, allowing concerned RBEs in the IT-BPM sector to “transfer” their registration from the PEZA to the Board of Investments (BOI). This will allow affected companies to adopt up to 100% WFH arrangements without adverse effects on their tax incentives.
The FIRB’s Resolution unfortunately created an apparent confusion on whether foreign personnel of PEZA-registered companies shall continue to hold PEZA visas despite the company’s subsequent registration with BOI. To recall, the PEZA has the authority to issue PEZA visas to qualified foreign personnel of PEZA-registered entities, specifically those who hold executive positions or those whose employment is supervisory, technical, or advisory in nature. On the other hand, a Special Non-Immigrant 47(a)(2)(BOI) visa is issued to foreign employees holding executive, supervisory, technical, or advisory positions in BOI-registered companies that are engaged in preferred areas of investment as enumerated in the national government’s Investment Priorities Plan.
The PEZA thereafter issued Memorandum Circular No. 2022-067 on 21 October 2022 to ultimately clarify that they shall continue to provide non-fiscal incentives, including the PEZA visa, to PEZA-registered entities who shall subsequently register with the BOI. This means that as long as the concerned company retains its registration with the PEZA and is merely registered with the BOI for purposes of adopting the 100% WFH arrangement, then its new foreign personnel may continue to apply for PEZA visas.
Further, since the PEZA continues to administer these non-fiscal incentives, foreign personnel who currently hold PEZA visas are also not required to downgrade their visas and will be allowed to keep and renew them in due course like usual. Affected companies do not lose their PEZA registration even with additional (not transfer) of registration at the BOI.
On the part of BOI, it appears that foreign personnel of PEZA-registered companies with subsequent or additional BOI registrations are not qualified to apply for 47(a)(2)(BOI) visas. The BOI acknowledges PEZA’s sole authority to continue providing non-fiscal incentives, such as work visas, to these companies, in accordance with FIRB Resolution No. 026-22.
The clarifications of PEZA and BOI on the PEZA visa and other non-fiscal incentives are indeed a welcome development. Foreign nationals are assured that there are no impediments on the enjoyment of their PEZA visas and that they will not be issued with corresponding Orders to Leave had their visas been downgraded because of their company’s registration with BOI. Above all, these policies must always be in line with the ease of doing business and should prioritize the workers’ safety and well-being amidst the pandemic.
This article is only for general informational and educational purposes and is not offered as and does not constitute legal advice or opinion.
Kristine Bernadette F. Soriano is an Associate of the Immigration Department of the Angara Abello Concepcion Regala & Cruz Law Offices (ACCRALAW).
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