Thailand’s SMART Visa Program

Thailand’s Board of Investment (BOI) officially launched an ambitious SMART visa program on February 1, 2018, open to foreigners living overseas or in Thailand. For foreigners working in Thailand and holding a Non-B Immigration visa and work permit, obtaining a SMART visa would be an attractive option to the current complicated work permit and visa channel. Multiple advantages are offered by a SMART visa to those who qualify as talent and knowledge experts or investors in the newly listed S-curve industrial sectors, namely Next-Generation Automotive; Smart Electronics; Affluent, Medical and Wellness Tourism; Agriculture and Biotechnology; Food for the Future; Automation and Robotics; Aviation and Logistics; Biofuels and Biochemicals; Digital; Medical Hub.

The benefits offered to foreigners include potentially obtaining a maximum 4-year visa, no need for re-entry permits, no requirement to hold a work permit, and only one annual report to the Immigration Department instead of every 90 days. In addition, spouses and children will be granted permission to stay in Thailand, and the spouse will not need a work permit to work, provided he or she does not work in a field restricted to foreigners.

Not surprisingly, after the announcement came out, many companies were extremely keen to know whether they would qualify for the SMART visa program. Perhaps the best answer is to compare this to a voyage of discovery; while potential rewards might be great, the seas are uncharted and the journey might be longer and more complicated than expected. At this time, no one has yet obtained a SMART visa, so the process can only be deduced from the information announced by the BOI.

So what actually is the SMART visa and how does it work? A SMART visa is designed for foreigners who fit into one of four categories: Talents – Highly Skilled Experts, Investors, Senior Executives, or Start-up Entrepreneurs. Unlike other types of Thai work visa applications, the SMART visa application focuses on the qualifications of the candidate, not their position. However, the caveat is that such foreigner should work for, invest in, or set up a company in Thailand that comes under one of the ten S-curve industries listed mentioned above.

So how do we know if a company fits into one of the specific categories? Take for example, “Next Generation Automotive,” one of the ten categories. In the March 2017 issue of the Thailand Investment Review (TIR), the definition is given as: “The next generation automotive sector will follow three criteria: firstly, environmentally friendly with low carbon emissions, secondly, safe, and thirdly, cost-efficient. A wider spectrum applies ranging from hybrid to plug-in hybrid to battery electric vehicles (BEVs).” So what are the criteria for all ten industrial sectors to qualify and who will decide whether the company supporting the SMART visa application fits into a category? Right now the information about this is not clear. At an Amcham monthly lunch, when Khun Duangjai Asawacgubtachit, Secretary General of the Board of Investment (BOI), was asked about this, she answered quite frankly that information still needed to be “fine-tuned.”

According to the BOI’s SMART visa brochure the decisions will be made by “Certifying Bodies,” namely the National Science and Technology Development Agency (NSTDA), National Research Council of Thailand (NRCT), Thailand Institute of Scientific and Technological Research (TISTR), Digital Economy Promotion Agency (DEPA) and the National Innovation Agency (NIA).

Interestingly, after reviewing the website of the NTSDA, the explanation mentions that Next Generation Automotive and Logistics: “Concentrates on electric vehicles and railway technology. Research and development on electric vehicles covers such topics as energy storage systems, high efficiency motors and drives, lightweight materials for frames and parts, assembly line and infrastructure.” Thus, according to this, railway technology also fits into this category, which was not mentioned in the BOI TIR article quoted above.

However, the main point about the SMART visa is that the important focus of the process is on the qualifications of the individual applicant. Unlike the BOI work permit process where the application starts with a company requesting slots for specific positions and then submitting the application of a specific candidate, the SMART process starts with the individual making a personal application.

So let’s imagine that Next Generation Widget Company Thailand Limited would like to have their foreign employee, Ms. Scientist, who has been working in Thailand for the past year, apply for a SMART Visa under the category of Talent. According to the BOI website directions: “How to apply for a SMART VISA (valid until 1 May 2018),” Ms. Scientist must first submit an application to obtain a Qualification Endorsement via their website . To start she must create her own account online. The online application for this endorsement is nine pages long and includes questions about whether she has undertaken or received any of the following: past research, publications, Intellectual Property inventions or products, certificates of qualifications, and awards. Her area of expertise should also qualify under Advanced Material Technology, Biotechnology, Digital Technology or Nanotechnology, although there is a box for “Other.” Of course, the application also calls for her to choose which one of the ten targeted industries she is working under.

At the same time, Ms. Scientist needs to assemble all the applicable required documents. All documents that are not in Thai or English must be translated into either Thai or English and notarized by the relevant authority or consular/diplomatic mission. The BOI SMART T visa Required Documents list includes 16 items, such as medical certificate, evidence of degrees, proof of previous employment, certified corporate documents, and an employment contract showing she earns a salary of at least 200,000 baht per month. She must have a Criminal Certificate record from the country of her nationality or residence, and she must have a Thai Police Clearance certificate, as she has been living and working in Thailand.

There is a problem with the requirement for Thai Police Clearance certificate. Currently, the policy of the Thai Police is to only issue a Police Clearance Certificate if it is required for use overseas and not in Thailand. Thus, the BOI might need to negotiate with the Thai Police if this document is mandatory. In addition, if the Thai police agree to issue such certificate, the process takes approximately six weeks, so this will add extra time to obtaining the required documents for submission.

Once assembled, all supporting documents need to be scanned into PDF format and uploaded. In addition, copies of all supporting documents and information must be submitted to the OSSC office at the Chamchuri Square Building. If the application is being submitted by a foreigner applying overseas, then the documents must be submitted to the Thai Embassy or Consulate where the applicant resides.

A number of Thai embassies have already posted information about the SMART visa. The Thai Embassy in Singapore has provided information about the visa application and required documents. The application fee will be 500 Singapore dollars per year, and the applicant can apply for a maximum of four years, depending on the period of BOI endorsement. The Singapore Embassy expects that the entire process will take about 30 days after submission to receive the results.

According to the BOI, after an application is submitted in Thailand at the OSSC, within 3 working days it will be submitted for review to the various applicable agencies including NSTDA, NIA, DEPA, NRCT, TISTR, MFA, Immigration Department, and Employment Department. The related agency then has 20 working days to complete the verification and certification process. After the BOI receives the result, it will notify the applicant, the Immigration Bureau, the Ministry of Foreign Affairs, and all other relevant agencies within 7 working days. Thus, the total processing time according to the BOI will take 30 working days. As mentioned above, no one has yet successfully obtained a SMART visa, but hopefully we will learn more after someone does.

 

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The material contained herein is only provided for information purposes. No part thereof may be deemed to constitute legal advice or the opinions of this law firm or any of its attorneys. Whilst every effort has been made to verify the contents of the material contained herein, we do not represent, warrant, undertake or guarantee that the information contained in this newsletter is correct, accurate, or complete. Legal advice must be sought before acting on any information contained herein.

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