UPDATE: Taiwan Passes Law on Hiring Professional Foreign Talent

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Taiwan's Legislative Yuan has passed the Act Governing Recruitment and Employment of Foreign Professionals, but challenges remain in ensuring the spirit of the law is carried through the implementation phase ahead of the law coming into effect in spring 2018.

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The Legislative Yuan on Oct. 31 passed the Act Governing Recruitment and Employment of Foreign Professionals (外國專業人才延攬及雇用法) virtually unchanged from the draft proposals discussed last week in these pages.

“We are in a celebratory mood — this is the most important development for the international community in Taiwan since the advent of permanent residence at the turn of the century,” Michael Fahey, a legal consultant at the Taipei office of Winkler Partners, wrote in an emailed reply.

The act now awaits review by the Executive Yuan, and is not likely to come into force until spring 2018.

“They need to issue new regulations fleshing out the details of some provisions and to create new forms for things like work permit applications by adult children who grew up in Taiwan, and Alien Permanent Resident Certificate (APRC) applications for family members,” Fahey said. "In the meantime, people will be having children who will not be covered by national health care and other older children will be turning 20 before they can apply for an APRC.”

The implementation phase is the end game for the Act but the door remains open for the insertion of so-called “gotcha” clauses that can render seemingly progressive reform stillborn. Ping Chu, founder of Forward Taiwan, a group advocating immigration reform aimed at boosting Taiwan’s economy, picks out the muted response to the government’s entrepreneur visa scheme as a case in point.

“We say we are inclusive and welcoming, but if you look at the detail, it doesn’t work,” Chu said. “The start-up entrepreneur visa is a great example — 2,000 were available but only about 100 were issued. The procedure is too difficult, so with the Foreign Professionals Act we have to empower the front line civil servants — the government has to educate them as to how to make the reform executable.”

The Act allows applicants overseas to apply for a three-month job-seeking visa, but the person must be working in a field in which Taiwan is deemed to have a shortage of talent, according to Chu. It is unclear how that shortage is determined, and Forward Taiwan believes the stipulation is an unnecessary impediment that could render an opportunity to attract young talent to Taiwan dead in the water.

Instead, the group is advocating the introduction of a quota system. “We want to push for maybe 2,000 people to be eligible for that visa and then you control that number rather than trying to work out where there is a shortage,” Chu said, adding that a quota would still offer job protection for native Taiwanese workers in line with the wishes of certain legislators and labor unions.

It is worth clarifying the positioning of Taiwan’s two major political parties around this issue. The Act passed its second and third reading so swiftly because it had enjoyed bipartisan backing at first reading, notably from Democratic Progressive Party (DPP) legislators Karen Yu (余宛如) and Chung Chia-bin (鍾佳濱) and their Kuomintang counterparts Jason Hsu (許毓仁) and Ko Chih-En (柯志恩). Hsu is notable for his introduction at the first reading of a change that ensured the disabled adult children of permanent residents are also eligible for residency under the Act.

The first reading also allowed the DPP’s Lin Shu-fen (林淑芬), as well as KMT legislators, to air their grievances, resulting in the removal of Article 20 from the Act. This would have allowed recent foreign graduates to work as interns in Taiwan. Currently enrolled foreign students can still come to Taiwan for internships.

“There has been a long-standing perception in the foreign community that the DPP is protectionist and even anti-foreigner whereas the KMT is pro-globalization and more open to immigration,” said Winkler Partners’ Fahey. “This bill shows that neither party is consistently pro or anti foreigner.”

Fahey also provided clarification on how the government is parsing eligibility for certain benefits under the Act. He said that “special” professionals, eligible for five-year extended work and residency permits and the so-called “Gold Card”, are those that Article 4 of the Act describes as having "special expertise, skill or ability of a kind needed by the State in the fields of science & technology, economy, education, culture, arts, sport, and others. “In other words, the Ministry of Science and Technology, the Ministry of Economic Affairs, the Ministry of Education, etc. will issue regulations or letters of interpretation detailing what kinds of expertise are needed by Taiwan,” Fahey said. “Expect these to be people with expertise in areas like green energy, AI, internet of things, biotech etc — i.e. the 5+2 pillar industries.”

As for “senior” professionals, or those whose spouses, minor children and disabled children may apply for permanent residency along with the worker, not to mention qualify for certain tax benefits, they are likely to be defined as those with a minimum monthly salary of at least NT$160,000 (US$5,300). Again, regulations and letters of interpretation will be issued to define this as part of the Executive Yuan’s implementation phase. Under Article 16, ordinary foreign professionals who have been approved for permanent residency can have their spouse, minor children and children over 20 who are "unable to live independently due to physical or mental disability" also apply, provided they have lived in Taiwan for five years and stayed for more than 183 days in each of those years — there is no wage requirement for this provision.

Chu said that this tiered structure of benefits reflected outdated thinking in terms of the government's attitude to what exactly constitutes = talent. “We are losing 160,000 workers a year — people not paying tax, or consuming or contributing to welfare. How do we replenish that loss — that’s the ultimate goal,” Chu said, going on to propose that Taiwan implements a trustee system to determine who is talented. “For example, if Lin Hwai-min (林懷民), founder of Cloud Gate Dance Theatre of Taiwan, says someone is a high potential, brilliant dancer and we need him to come to Taiwan so all our dancers can learn from him. Lin would then be responsible for the authenticity of the dancer.”

As of Nov. 6, this article was updated to clarify that there is no minimum wage requirement for dependents of ordinary foreign professionals to apply for an APRC along with the worker, but they must prove five years continuous residency.

The full text of the final Act can be read here by scrolling to the bottom of the page and clicking on the PDF "Act for the Recruitment and Employment of Foreign Professionals".

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