Hiring foreign nationals and their VISAs

We will provide an overview of points to consider when hiring foreign employees.

1. Confirmation of the residence status corresponding to the job position being recruited for

The requirements for residence status include criteria such as educational background, years of practical experience, nature of the work engaged in, compensation, skill tests, and criteria related to accepting organizations

For example, one of the criteria for the most commonly obtained status of residence, "Engineer / Specialist in Humanities / International Services," includes having graduated from a university or graduate school, as well as engaging in work that utilizes extensive knowledge and applied abilities acquired at the university or graduate school.

In other words, even if someone has graduated from a university or graduate school, it does not mean they can engage in any type of industry or work without limitations. The criteria specify that only tasks that make use of the knowledge acquired at the university or graduate school are permitted.

For those who have not graduated from a university or graduate school, a criterion often considered favorable is having more than 10 years of practical work experience in the field they intend to engage in.

For jobs such as foreign cuisine chefs, it may require at least 10 years of experience in the culinary field (in the case of Thai chefs, it may be 5 years or more).

For caregiving roles, a qualification as a social welfare worker (licensed social worker) may be required.

In industries such as manufacturing, construction, agriculture, etc., passing the Japanese Language Proficiency Test (JLPT) N4 and industry-specific skill tests enables eligibility for the "Specified Skilled Worker" residence status, or technical intern trainees are accepted for technology transfer to developing countries through the Technical Intern Training Program, individuals who have completed Technical Intern Training Program Level 2 are eligible to change their residence status to "Specified Skilled Worker" status.

As stated above, the types and criteria of residence statuses that are eligible to work are diverse and varied. The residence statuses specified in Appendix 2 of the Immigration Control Act, such as "Permanent Resident," "Spouse of a Japanese National," "Spouse of a Permanent Resident," and "Long-Term Resident," have no restrictions on employment. Therefore, individuals under these statuses can work in any field or occupation.

2. Considerations for Interview and Employment

To employ foreign individuals, the individual is typically brought to Japan, which incurs expenses such as travel costs and securing accommodation.

Selecting the right candidate is crucial to avoid increased company burdens due to immediate resignations after joining.

During the examination process, the past residency status in Japan becomes a subject of review if the foreign national has previously entered Japan. It is essential to confirm whether there were any issues during past stays and whether visa applications were submitted to immigration authorities. It is also important to investigate the reasons for the denial if the application has been rejected in the past. Even if the foreign national has been denied in the past due to false application or suspected immigration intentions, there are cases where approval can still be obtained depending on the circumstances. If you wish to employ such an individual, please consult with us for further assistance.

3. Acquisition of a residence status that is eligible to work (work visa)

If a foreign national is outside of the country

When consulting our firm, please provide documents and information detailing the tasks you expect the prospective foreign employee to perform, as well as their academic and professional background, including any skills and qualifications they possess.

At the same time, please also provide documentation from the employing company or entity, such as company transcripts, financial statements, promotional materials, etc.

At our office, we will examine these documents and testimonies to assess the industry, performance, and other relevant factors. Upon completing these checks, if it is determined that the foreign individual meets the requirements for residence status, the employer will then proceed to apply for a "Certificate of Eligibility for Resident Status" to the regional immigration office with jurisdiction over the area where the company is located.

If a foreign national resides in Japan

On the other hand, if a foreign national resides in Japan, they need to apply for a change in residency status at the regional immigration office having jurisdiction over their place of residence.

In this application process, the applicant's "previous entry and residency status" is considered, but otherwise, the procedure is almost identical to the application for a certificate of eligibility.

The "previous entry and residency status" refers to situations such as low attendance for students or instances where part-time work exceeded the permitted hours under the permission to engage in activity other than that permitted under the status of residence. In cases where past residency conditions have been unfavorable, the change to a residency status allowing employment may not be approved. If the change is not approved, the individual may need to plan to return to their home country and then reapply for the appropriate residency status at a later time.

Points to Note When Hiring International Students

Students typically hold a status of residence called "Student" to stay in Japan. This status allows them to pursue education at Japanese high schools, Japanese language schools, vocational schools, universities, graduate schools, and other educational institutions in Japan.

When considering hiring international students, it is essential to ensure that their attendance record has been maintained, that they have not been treated as withdrawn from the school, and whether they plan to graduate or withdraw voluntarily. If the student is to graduate, it is also crucial to verify when they are expected to graduate.

If, despite unavoidable circumstances, a student has a low attendance rate or has already been treated as withdrawn, their previous residency status may be deemed unfavorable. In such cases, changing to another residency status is unlikely to be approved.

Furthermore, for students, if they obtain permission to engage in activity other than that permitted under the status of residence, they are allowed to work up to 28 hours per week during their studies, as long as it does not interfere with their academic commitments. However, there are cases where students exceed the 28-hour limit for part-time work, and some even substantially exceed this threshold.

If, during the immigration process for changing residence status for employment purposes, it is discovered that the applicant had been working in a part-time job for more than 28 hours per week, they may receive a denial due to a violation of their permission to engage in activity other than that permitted under the status of residence. Consequently, they would be unable to secure employment.

Even if companies directly inquire about past part-time work hours from students, it may still be difficult for students to discuss such matters.

When you entrust for your matter, we thoroughly examine the student's past income situation, so we may be able to determine whether the part-time work hours generally exceed 28 hours per week. If the application is denied, the individual may need to return to their home country and then prepare and plan to obtain a new residency status upon reapplication.

Considerations When Hiring Someone Looking to Change Careers

Foreign individuals who have obtained residency status in Japan for employment and are currently employed or planning to resign from their current employer (referred to as the "affiliated institution") may be recruited by another company. In such cases, if the foreign individuals intend to resign from the affiliated institution, they declared to the immigration authorities upon obtaining their residency status, they are generally required to have been engaged in the duties they declared to the immigration authorities.

Suppose the individual has been engaged in the duties they declared to the immigration authorities but seeks career advancement or faces dismissal due to the deterioration of the affiliated institution's management. In that case, they may be able to change jobs if they find a new position that meets the residency status criteria under the Immigration Control Act.

Based on this, companies considering hiring foreign nationals transitioning from other companies should examine the residency status and duration the foreign national currently holds and determine whether it was obtained for employment at a specific company. It's also essential to verify the job responsibilities, reasons for leaving the previous position, resignation date, duration of residency, and other relevant details.

If it is determined that the foreign national's new responsibilities at the prospective employer can be performed under the existing residency status, and there is sufficient time left in the residency period, the hiring company can proceed with the employment immediately.

Immigration authorities do not conduct any review regarding the foreign national's previous or prospective employment. Therefore, both the employer and the foreign national may feel uncertain about whether the current residency status allows them to perform the intended duties. At such times, you can request a review by the Immigration Office. The procedure for this is outlined in the "Points to Note After Joining the Company" section as the "Application for Certificate of Eligibility for Work." Please refer to that for more details.

Regarding the job responsibilities of foreign nationals

In actual immigration applications, the necessity of hiring the foreign national applicant, considering the company's financial situation and the job responsibilities of current employees, is evaluated. It is also assessed whether the foreign national is expected to genuinely perform the duties assigned to them and if the projected workload is sufficient. Therefore, it's not uncommon for detailed explanations about the foreign national's intended job duties and daily schedule to be requested after the application. Based on the above, when an employer who wishes to hire a foreign national or a foreign national who has decided on their prospective employer consults with an immigration lawyer, it becomes crucial to assess, based on the necessary information from both the foreign national and the employer, whether the nature of the job aligns with the criteria for obtaining a residency status and whether it is likely to be approved. Typically, the preparation and submission of an "Employment Reason Statement" are required in such cases.

4. Points to Note After Joining the Company

After hiring a foreign national, they are required to enroll in labor insurance and social insurance within the limits prescribed by law, just like Japanese employees. They will also be engaged in the duties as declared to the immigration authorities.

If, for reasons related to the company's operations, there is a need to change the duties of the foreign national, it is necessary to assess whether the intended duties fall within the scope of the foreign national's current residence status. If it is determined that the foreign national can engage in the new duties based on their existing residence status, then it is possible to assign them the revised duties.

However, it's important to note that immigration authorities do not typically review changes in job duties. Therefore, both the employer and the foreign national may have concerns about the changes, as there is uncertainty regarding compliance with immigration regulations.

In such cases, it is possible to request the immigration office to review whether the revised or planned duties for the foreign national fall within the scope of their current residence status and whether they meet the various conditions stipulated by immigration laws and regulations.

The procedure is called the "Application for Issuance of Employment Qualification Certificate." If the application is successful, the "Employment Qualification Certificate" will be issued. If it is issued, it provides reassurance, and the subsequent review process for the renewal of the residence period will also be conducted promptly.

Additionally, the "Application for Issuance of Employment Qualification Certificate" is not legally mandated, and therefore, it remains an optional application. It is up to the foreign national and the employer to consider whether to apply for it. However, we typically recommend applying for it as a precautionary measure.

On the other hand, if the expiration date of the foreign national's period of stay is approaching, it is possible to apply for an extension of the period of stay without applying for the issuance of the employment qualification certificate. In this case, the applicant can explain the change in responsibilities and provide supporting documents for the renewal application, which will be comprehensively reviewed by the authorities. However, if the renewal application is denied, the individual may temporarily lose the ability to work. In the worst-case scenario, the foreign national may need to resign abruptly and find a new job that meets the visa conditions within approximately 30 days. In addition to the above, if there are changes in the company name or address of the contracted company or if the contract has ended for the foreign national, it is mandatory to notify the immigration office within 14 days using the specified form. Failure to make this notification may result in penalties as prescribed by law.

5. If there is dismissal or resignation of a hired foreign national

If a hired foreign national, after joining the company, for example, is deemed unfit for the job based on the results of the probationary period, or if the company decides to dismiss the foreign national due to reasons related to the company, or if the foreign national resigns for personal reasons, there is no obligation under immigration law for the employing company to report such matters to the immigration office Therefore, there are no required procedures, but it is possible to report the dismissal or resignation of a foreign national to the immigration authorities in writing. Reporting such cases would be preferable from the perspective of proper management of foreign residents by the immigration office.

6. Risk avoidance in employing foreign nationals

Above all, when it comes to hiring foreign talent, understanding immigration laws is essential. There are various types of residence statuses, handling standards, legal obligations, and frequent legislative changes. Even for an immigration lawyer, it is not easy to grasp them instantly. This makes it a significant challenge for ordinary businesses.

In the case of immigration lawyers as well, it is crucial to assess the actual job situation of foreign students majoring in specialized schools or universities and consider whether the proposed job aligns with the criteria for eligible residence status for employment. However, when such assessments are inadequate or unfavorable, it often leads to immigration applications being denied, resulting in many cases being referred to our office for consultation.

If we examine the reasons for denial, we often find that with a different assessment of the job tasks stated in the Employment Reason Statement, many cases could have been approved.

As you may be aware, even well-known companies have been exposed for their incomplete understanding of immigration laws and regulations regarding the handling of work-eligible residence statuses when employing foreign nationals. This situation has led to significant damage to the corporate image in many cases. Additionally, there have been cases where companies, both large and small, have been found to engage foreign nationals in duties different from those declared to immigration authorities. This discrepancy has resulted in charges of immigration law violations, leading to arrests and prosecutions.

At our firm, we offer advisory services to companies of all sizes through advisory contracts. When an advisory contract is in place, we encourage clients to consult with us before formulating any plans to recruit foreign talent. We provide legal insights, offer advice on immigration law matters, and actively share information that we believe is beneficial to our clients' businesses. For companies considering the recruitment of foreign talent, we encourage individual consultations and requests for our services. In addition, we recommend considering an advisory contract with our firm. We believe that by tailoring our services to the specific needs of your company, you can make the most of our expertise.