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There are two passes issued for the purpose of employment, namely:
• Employment Pass; and
• Visit Pass (Professional).
There is no definition of “taking up employment” in Malaysia under the Immigration Act but this could include any activity conducted in Malaysia by a person as an employee, whether for a foreign employer or Malaysian employer.
A. Employment Pass
An Employment Pass is issued to a managerial or professional-level foreigner who is to be employed by a Malaysian employer (i.e. Malaysian incorporated subsidiary, Malaysian registered branch of a foreign corporation or a Malaysian representative office). Any employer applying for an Employment Pass must show why the foreigner must be employed rather than a Malaysian citizen or permanent resident. An acceptable reason is that there is no Malaysian citizen or permanent resident available who is suitable in terms of academic qualifications and relevant practical experience or technical skills. An Employment Pass will allow the holder to engage in a full range of employment activities.
Application for an Employment Pass should be made three months prior to the arrival of the foreigner. However, it is common, although not advisable, for a foreigner to enter on a Visit Pass (Business) obtained by oral application at the point of entry (or at the relevant Malaysian Consulate prior to traveling) and for the employer to thereafter apply for an employment pass prior to the foreigner taking up employment. If the foreigner intends to take up employment immediately, the employer could apply for a Visit Pass (Temporary Employment) simultaneously with the application for an Employment Pass.
A limited number of Employment Passes may be granted to foreigners employed by a Malaysian subsidiary. The general policy of the Immigration Department is not to grant employment passes to foreigner employees of a branch of a foreign company except with a letter of support from a Ministry or government body, such as where the branch is involved in a government project. However, it appears this policy has recently been slightly relaxed and it may be possible for the Immigration Department to grant up to two (2) Employment Passes to foreign employees of a branch office for key positions.
1. Application procedure
The application procedure for an Employment Pass is a two-stage process:
1.1 The applicant company applies for an expatriate post (an application “for the services of an expatriate”), by submitting a completed Form DP 10. This form must be submitted in two sets accompanied by a letter of justification in the Malay Language from the employer justifying why the post must be held by a foreigner, whether there are any pre-requisites, qualifications and experience that are not available from Malaysia and whether steps ( i.e. advertisements) have been taken to recruit a Malaysian to fill the post and provide evidence of such steps taken. The letter of justification should indicate the benefits the company could bring to the Malaysian economy and the labor force.
The following information and documents are to be furnished in support of the application:
• particulars of applicant company;
• employment structure according to category;
• copy of duly stamped short-form employment contract;
• copy of expatriate’s passport;
• job description;
• corporate documentation of the employer i.e. Memorandum and Articles of Association;
• where required, copy of approval of relevant Malaysian governmental agencies;
• information on the post and the expatriate applicant;
• organization chart, indicating each post and the person designated for each post, including vacancies and the post being applied by the expatriate applicant; and
• resume and copies of the academic qualifications of the expatriate.
1.2 Following approval of the expatriate post, the application for the issue of the Employment Pass must be submitted together with:
• three recent passport sized photographs of the expatriate applicant;
• copy of the expatriate’s passport;
• completed Form DP 11;
• the original short-form employment contract between the company and the expatriate, duly stamped;
• cover letter from the employer making reference to the approval of the post and requesting issue of an Employment Pass to the relevant expatriate;
• resume and copies of the academic qualifications of the expatriate;
• if the employer is a Malaysian company, Forms 9, 13, 24 and 49 and the Memorandum and Articles of Association of the company;
• if the employer is a Malaysian branch, Forms 79 and 83 and the Memorandum and Articles of Association of the company;
The application must be supported by a declaration and covenant made by a person resident in Malaysia, who may be the auditor, chief executive officer, or the agent of the company. An Employment Pass is generally issued for a period of 1 to 2 years. An application for renewal before its expiry may be submitted but there is no guarantee of approval.
Temporary Employment Pass
If a Malaysian company requires the immediate services of the foreigner for whom an application for an expatriate post has been made, the company can apply for a Visit Pass (Temporary Employment) in the interim, usually valid for a period of three months, i.e. the approximate duration for the approval of the principal application. It may be possible to extend the Visit Pass (Temporary Employment) prior to its expiry but this is subject to the eventual decision on the principal application.
The procedure and the forms for application for a Visit Pass (Temporary Employment) are similar to that for the Employment Pass, except that Form IM12 (in duplicate) must be submitted instead of Form IM8.
B. Visit Pass (Professional)
A Visit Pass (Professional) is for engaging in a professional occupation or work in Malaysia. In the application, the applicant must, with a letter of support from the local sponsor disclose the activities which the applicant intends to conduct in Malaysia. The local sponsor must agree to be responsible for the maintenance and repatriation of the foreigner from Malaysia should it become necessary. A pass holder may conduct the activities for which the pass has been approved. It is a condition of the Visit Pass (Professional) that any change in the business or professional purposes for which the Visit Pass (Professional) is issued must be made with the written consent of the Director-General of Immigration.
A Visit Pass (Professional) is normally only granted for a period of 3 to 6 months, but may be extended to a maximum period of one year. Pursuant to recent regulatory changes, a Visit Pass (Professional) may only be used for secondments and the intended holder must register with the Malaysian Inland Revenue Board before submitting the application. Employers seeking to directly engage non- Malaysians must apply for an Employment Pass or a Visit Pass (Temporary Employment).
For a short stay in Malaysia, other than for employment, such as for social purposes or for business, aVisit Pass (Social) or a Visit Pass (Business) may be obtained at the point of entry into Malaysia.
A. Visit Pass (Social)
A Visit Pass (Social) is solely for the purpose of a social or tourist visit. A person who has been issued with a social or tourist visit pass is not permitted to take up employment, business or professional work while in Malaysia.
B. Visit Pass (Business)
A Visit Pass (Business) is for conducting business negotiations or inspection of business houses and not for employment or supervising installation of machinery or construction of factories. Permissible business activities under a Visit Pass (Business) include:
i. as owners / company representatives for the purpose of attending company meetings, seminars, inspection of accounts or to ensure the smooth running of the company;
ii. as investors or businessmen for the purpose of examining business opportunities and investment potential;
iii. as a representative of a foreign company, for the purpose of introducing products or services that he or she represents to Malaysia (but not selling or distributing products or performing services);
iv. as foreign participants to attend business seminars, talks or conferences; and
v. as foreign owners of properties in Malaysia such as land, plantations or buildings, for the purposes of selling, mortgaging or developing their properties.
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