Hello, this is Hong from IMS Legal Professional Corporation. In this post, I would like to explain how to determine the possibility of obtaining a work permit from the perspective of the applicability, criteria compliance, and equivalency of residence status based on the Immigration Control Act, in addition to practical considerations when a company is looking to hire foreign talent who needs to acquire a residence status allowing them to work. While these terms may not be commonly heard by recruitment personnel or the foreign individuals themselves, they are extremely important when it comes to obtaining a residence status.
① Applicability of Residence Status
Under the Immigration Control Act, the activities conducted by foreigners in Japan are categorized into 29 types of "residence statuses." Only when a foreign individual is engaged in activities that correspond to one of these "residence statuses" can they stay in Japan.
For example, when bringing in foreign talent from overseas, it is important to confirm whether the intended activities in Japan correspond to a defined residence status. If the activities do not align with the defined residence status, the individual will not be eligible to stay.
As a familiar example, when considering activities such as system engineering, interpretation and translation, or language instruction within a company, one would assess whether the applicable "residence status" for engaging in these activities is recognized. In this case, the Immigration Control Act provides a specific residence status called "Engineer/Specialist in Humanities/International Services" for engaging in these activities. Thus, if the activities align with the activities defined under this residence status, it can be determined that the "appropriateness of residence status" is met. In other words, the judgment is based on the specific job duties planned to be performed in Japan.
② Criteria Compliance
Formally referred to as "Landing Permission Criteria," this pertains to the operational provisions under the Immigration Control Act that define the criteria for granting permission based on Article 7, Paragraph 1, Item 2 of the Immigration Control and Refugee Recognition Act.
"Criteria compliance" refers to the criteria (requirements or conditions) that foreign individuals who are believed to be eligible for a particular residence status must meet in order to apply for and receive certification (permission) for that status. It involves determining whether the individual meets these criteria.
For example, when applying for a residence status for activities as a translator/interpreter, one of the criteria states that the individual must have at least three years of practical experience related to the intended business activities. However, this requirement does not apply to individuals who have graduated from university and engage in translation, interpretation, or language instruction. In such cases, if the individual has over three years of practical experience or possesses a university degree, it can be determined that the criteria compliance is met. However, if the individual only has two years of experience or graduated from an overseas vocational school, the criteria compliance is not met, and the application cannot be submitted. Therefore, each residence status has specific criteria established by the Cabinet Order. It is important to note that not all residence statuses have specified criteria; some residence statuses such as "Professor," "Cultural Activities," and "Spouse of Japanese National" do not have criteria. For more details, please refer to the Cabinet Order specifying the criteria under Article 7, Paragraph 1, Item 2 of the Immigration Control and Refugee Recognition Act.
③ Equivalency
Foreign individuals residing in Japan will need to go through the process of renewing or changing their residence status if necessary. Decisions on change or renewal applications are based on a comprehensive assessment of the foreign individual's past residence history in Japan. The result of the application is determined based on whether there is a substantial reason for the change or renewal from their past residence history.
For example, if a foreign student has low attendance rates despite being enrolled in a study program or if they are receiving income but not paying taxes, their residence history may not be considered suitable. This concept of "equivalency" exists in residence status applications and is subject to immigration scrutiny. If the past residence history is not favorable and there is no "equivalency" (sufficient and reasonable reasons), it may lead to unfavorable outcomes such as disapproval of the application.
When considering hiring foreign talent, questions about whether they can be hired, whether a work permit can be obtained, and how to proceed with the application process for a work permit can be complex. If you are unsure, please feel free to contact our company for assistance.
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