Working on Spouse KITAP

[Mas Mana]

My understanding of the law is spousal KITAS/P holders can work. Period. IMTA and all the other laws governing foreign workers found in UU 13, 2003 shouldn't apply to them, because that law, in its very first article, specifically defines a foreign worker (Tenaga Kerja Asing - TKA) as a foreigner who holds a visa for the purpose of work.

Since a spousal KITAS/P is issued not for the purpose of work, but for the purpose of family unity, therefore holders of such are not foreign workers (TKA) and the TKA provisions of UU 13, 2003 does not apply to them, nor does any other provisions concerning TKA in lower level laws derived from UU 13, 2003.

However, the more generally accepted belief is that spousal KITAS/P holder can definitely work in any capacity within an informal business (such as a business owned by their WNI spouse). This has been socialized by multiple immigration officers at various level, so there is wide agreement on that part.

I do like the understanding of the definition of a TKA in Article 1 of the Indonesian Manpower / Labour Law argued for by dafluff and atlantis, and I hope this to be(come) the accepted interpretation of it. Looking at the Indonesian text though, I can also see another interpretation which I like far less. May I play the devil's advocate here?


0. Definition of a TKA in Article 1 of the Manpower Law is: "Tenaga kerja asing adalah warga negara asing pemegang visa dengan maksud bekerja di wilayah Indonesia."


1. The argument quoted above sees the units of this definition as:
"warga negara asing - pemegang - visa dengan maksud bekerja - di wilayah Indonesia."

"Dengan maksud bekerja" refers directly to the visa then, not to the general intent of the visa-holder who is a foreign citizen.
Thus, the appropriate translation by dafluff above is "a foreigner - who holds - a visa for the purpose of work [- in Indonesia]".


2. My alternative understanding of these units is:
"warga negara asing - pemegang visa - dengan maksud bekerja - di wilayah Indonesia."

"Dengan maskud bekerja" here refers to the foreign citzen who is holding a visa, not to the visa or the reason why it was issued.
In this case, I would translate this as "with the intent to work" by that foreign visa-holder, not "for the purpose of work" of the visa.

The alternative understanding seems more basic:
To be a TKA you have to be a foreigner (otherwise you would not be asing) and you will have to hold a visa (so that you can legally be in Indonesia for the work you intent to do there). Nothing said yet about a specific visa or the purpose it is issued for, as that can always be done in following regulations.

The consequence of this understanding of Article 1 would be that the Manpower Law is not ruled out for expats wanting to work on a spouse KITAS/P and might apply to formal employment.


I found two differing English translations on the web:

1. "Foreign employee is a foreign national who is a visa holder with the intent of working in the territory of Indonesia."
https://en.wikisource.org/wiki/Indonesian_Labor_Law_No._13_from_2003#Article_1

2. "Foreign worker is a visa holder of foreign citizenship with the intention to work in Indonesia’s territory."
http://fakhukum.untagsmg.ac.id/index.php/direktori/func-startdown/168/

Atlantis and dafluff: Do you have more formal sources or legal commentaries to officially back up the understanding that the Manpower Law does not apply here due to the definition of TKA in Article 1?
That would cheer me up, as I can read both interpretations from it - and nobody needs yet another unclear rule in Indonesian immigration and manpower laws

 

[dafluff]

Atlantis and dafluff: Do you have more formal sources or legal commentaries to officially back up the understanding that the Manpower Law does not apply here due to the definition of TKA in Article 1?
That would cheer me up, as I can read both interpretations from it - and nobody needs yet another unclear rule in Indonesian immigration and manpower laws

If there was, we would've posted them already. As it stands it is confusing. Clarifying with officials is almost impossible since they often do not know what they are talking about, and all like to shoot from the hip instead of admitting this. So I am hoping that fastpitch's connection will provide a more clear understanding.

In Indonesian law, if there is any confusion or contradiction between two laws then it is up to Mahkamah Konstitusi to decide. No one has brought this up with them so far, so I don't know. I also suspect that if they rule similar to my interpretation, it will cause nationalistic furor and the law will get amended, so it is probably best not to stir that hornet's nest.

As for the specific: Tenaga kerja asing adalah warga negara asing pemegang visa dengan maksud bekerja di wilayah Indonesia.

My reasoning is as follows:

1) If your second interpretation is intended, then in Indonesian it would be much more clear if they had written Tenaga kerja asing adalah warga negara asing pemegang visa yang bermaksud untuk bekerja di wilayah Indonesia.This leaves no ambiguity as to who "bermaksud untuk bekerja" is, namely the warga negara asing.

2) If your second interpretation is intended, then why bother mentioning an unspecific visa? Can I hold a Tourist Visa and just want to work to be a TKA? After all in that case I fulfill all criterias: WNA, hold a visa and wants to work in Indonesia. It would make much more sense to specify the type of visa, ie. a visa dengan maksud bekerja.

3) Finally we also examine UU 6 2011, where it specifically says that ITAS/ITAP holder of spousal and family class can work. If they intend to mean that we still need IMTA etc, then why bother being specific with respect to spousal and family sponsored ITAS/ITAP holders. After all work ITAS/ITAP holders can also work with IMTA.

 

[Mas Mana]

1) If your second interpretation is intended, then in Indonesian it would be much more clear if they had written Tenaga kerja asing adalah warga negara asing pemegang visa yang bermaksud untuk bekerja di wilayah Indonesia.This leaves no ambiguity as to who "bermaksud untuk bekerja" is, namely the warga negara asing.

I agree and thought of this possible variation as well which would leave no doubt about it being my second interpretation. Still, I could not fully wrap my head around the concept of a visa, not a person, having a maksud in the first interpretation.

My first look at terminology in UU 6 Th. 2011 did not help much either, as it mostly uses the phrase yang diberikan kepada orang asing untuk [activity] / sebagai [profession or status] when referring to the purpose of a visa. So that term could have been used in an alternative wording intending the first interpretation: pemegang visa yang diberikan untuk bekerja.

With these two much clearer alternatives in mind, I was still stuck with my perceived ambivalence of the actual wording in question.

After having a closer look at the Immigration Law again, I now start to agree on your understanding. Maksud in direct referral to a visa purpose is rarely found in there, only twice in Pasal 122 in combination as maksud dan/atau tujuan pemberian Izin Tinggal.
The term dengan maksud on the other hand is used several times when referring to the purpose of falsified documents in passive form - and so grammatically clearly not to the intend of the person using them: dengan maksud [untuk] digunakan.

If a falsified document can have a maksud/purpose to be used for, the same goes for a visa, I'd say. That strongly supports your interpretation. Guess I just did not see it with the intransitive active verb bekerja as a qualifier in the 2003 Manpower Law. The repeated passive use in the 2011 Immigration Law made it easier to grasp for me.
Thanks for arguing the case!

 

[PhilippeD]

I'm surprise to find people who are still embezzle with this matter. The law is quite simple and clear on the subject, there is not the much in the immigration law that talk about work.
I know there is a lot of confusion bring by the immigration officer and this since the beginning the law UU6/2011 was enacted.

Context:

Indonesian is part of the UN since september 1950 and need to comply to it's human right... which he don't always does. One of the 30 article said:

Article 23.

(1) Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.
(2) Everyone, without any discrimination, has the right to equal pay for equal work.
(3) Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.
(4) Everyone has the right to form and to join trade unions for the protection of his interests.

This mean if you allow someone living on your land you can't deny him his right to work.
Indonesian are ultra nationnalistic, particularly people you will find in working in governement office. They don't like the idea of giving the free right of work to foreigner and then their tendency to lie about this subject. Add to this the general unknowledge of the law there are supposed to apply.

I have been openly "lied" about immigration regulation by the boss of our immigration office and this was nothing more than a standard visa procedure she didn't want to do - she didn't want do a "change of sponsor" and want me doing a brand new visa in singapore.
Now imagine those same person when it's about a subject they are personally against it.



What the law said:


penjelasan art 39 UU 6/2011
Visa tinggal terbatas diberikan kepada Orang Asing yang bermaksud bertempat tinggal dalam jangka waktu yang terbatas dan dapat juga diberikan kepada Orang Asing eks warga Negara Indonesia yang telah kehilangan kewarganegaraan Indonesia berdasarkan Undang-Undang tentang Kewarganegaraan Republik Indonesia dan bermaksud untuk kembali ke Indonesia dalam rangka memperoleh kewarganegaraan Indonesia kembali sesuai dengan ketentuan peraturan perundang-undangan.
Visa tinggal terbatas dalam penerapannya dapat diberikan untuk melakukan kegiatan, antara lain:
1. Dalam rangka bekerja:
a. sebagai tenaga ahli;
b. bergabung untuk bekerja di atas kapal, alat apung, atau instalasi yang beroperasi di wilayah perairan Nusantara, laut territorial, atau landas kontinen, serta Zona Ekonomi Eksklusif Indonesia;
[…]
m.melakukan kegiatan pengobatan; dan
n. calon tenaga kerja asing yang akan bekerja dalam rangka uji coba keahlian.
2. Tidak untuk bekerja:
a. penanam modal asing;
b. mengikuti pelatihan dan penelitian ilmiah;
c. mengikuti pendidikan;
d. penyatuan keluarga;
e. repatriasi; dan
f. lanjut usia.


In the first section (1. Dalam rangka bekerja: ) there is 14 situation were a (K)ITAS (Visa tinggal terbatas) can be given in matter of work related.
In the second section (2. Tidak untuk bekerja: ) It describe the situation were the KITAS is not delivered for work purpose. There is no "dengan maksud bekerja" (entrance for work purpose) under a wife sponsored KITAS, a repatriation or any of the 4 other situation mentionned.

In other word: Wife sposored and repatriated KITAS holder are not TKA (Tenega Kerja Asing) and CAN NOT BE DELIVERED A WORK PERMIT (IMTA).
The law don't make any ambiguity about this.

 

[PhilippeD]

However article 61 UU 6/2011 allows anyone included in the scope of "penyatuan keluarga" and "repatriasi" to work for their living and/or provide for the needs of their family.

Pasal 61 UU 6/2011
Pemegang Izin Tinggal terbatas sebagaimana dimaksud dalam Pasal 52 huruf e dan huruf f dan pemegang Izin Tinggal Tetap sebagaimana dimaksud dalam Pasal 54 ayat (1) huruf b dan huruf d dapat melakukan pekerjaan dan/atau usaha untuk memenuhi kebutuhan hidup dan/atau keluarganya.

*the bolded part would be translated as: work for their living and/or provide for the needs of their family

The "pasal 52" refer to kitas holder sponsored by their wife (e) and their children (f).
And "pasal 54" refer to KITAP holder sponsored by their wife (b), their children (c) and repatriated KITAD holder (d)

Pasal 52 UU 6/2011
Izin Tinggal terbatas diberikan kepada:
a.Orang Asing yang masuk Wilayah Indonesia dengan Visa tinggal terbatas;
b. anak yang pada saat lahir di Wilayah Indonesia ayah dan/atau ibunya pemegang Izin Tinggal terbatas;
c. Orang Asing yang diberikan alih status dari Izin Tinggal kunjungan;
d. nakhoda, awak kapal, atau tenaga ahli asing di atas kapal laut, alat apung, atau instalasi yang beroperasi di wilayah perairan dan wilayah yurisdiksi Indonesia sesuai dengan ketentuan peraturan perundangundangan;
e. Orang Asing yang kawin secara sah dengan warga negara Indonesia; atau
f. anak dari Orang Asing yang kawin secara sah dengan warga negara Indonesia.

Pasal 54 UU 6/2011
(1) Izin Tinggal Tetap dapat diberikan kepada:
a. Orang Asing pemegang Izin Tinggal terbatas sebagai rohaniwan, pekerja, investor, dan lanjut usia;
b. keluarga karena perkawinan campuran;
c. suami, istri, dan/atau anak dari Orang Asing pemegang Izin Tinggal Tetap; dan
d. Orang Asing eks warga negara Indonesia dan eks subjek anak berkewarganegaraan ganda Republik Indonesia.


For resume, a foreigner with a KITAS/KITAP sponsored by his spouse, their children with a KITAS/KITAP sponsored by their Indonesian mother/father and repatriate holding a KITAP are not allowed to work permit but are allowed to work. Which mean you can work without being regulated by the manpower (depnaker) and have - like the UN Human Right said - free choice of employment as same as any other Indonesian.


The confusion come from:
1- A lot of skepticism when the law was release
2- Total denied of the official to give explanation about the "pasal 61" when the law was release
3- General lack of knowledge of many immigration officer
4- Absolutely no regulation for give a frame in which the "pasal 61" can be apply

But they can not regulate the "pasal 61" as it will be again the UN human right.
Also the Indoneisan Gov don't want it to be too much wide spread and want keep it as secret as possible.

 

[Imagem]

I have not been on the forum for a while. Now reading the new posts on this thread I am confused again :/

 

[Bad_azz]

I have not been on the forum for a while. Now reading the new posts on this thread I am confused again :/

In short, in your position you are perfectly fine to work.

 

[wanderer]

Have read through this and looking to change to a wife sponsored KITAP I still have a question about what type of company you can work for. In my particular case I have my own foreign owned PMA and I am the director and major shareholder. I've been married or over 3 years now but still on a KITAS simply because the cost to go on a company sponsored KITAP was far more than staying on a KITAS.

If I switched to wife sponsored KITAP, can I still work for my own company or will I have to change the ownership to my wife? I'd really like to stop paying the $1200 each year and put this money into savings instead.

 

[fastpitch17]

Have read through this and looking to change to a wife sponsored KITAP I still have a question about what type of company you can work for. In my particular case I have my own foreign owned PMA and I am the director and major shareholder. I've been married or over 3 years now but still on a KITAS simply because the cost to go on a company sponsored KITAP was far more than staying on a KITAS.

If I switched to wife sponsored KITAP, can I still work for my own company or will I have to change the ownership to my wife? I'd really like to stop paying the $1200 each year and put this money into savings instead.

I think as things are now, you could switch visas but I think you should keep paying the 1,200 anually. These you can work, you can not work are on pretty shaky ground yet. You are getting non legal opinions is all here. Unless you are prepared for a long expensive court case with Man Power because their regs say no and they handle labor, then just change visas and get that work permit. I doubt but not sure if you need to chance the business titles.

 

[jstar]

Just providing some contrary wind (Often the wish is the father of the thought):

I realize all deportations, fines etc. are mainly people who are working here on tourist visa or who don't comply with the IMTA regulations. And it is probably rather difficult for the Indonesian government to tackle KITAS/P holders because of the infamous pasal 52 of 6/2011.

But still, whether (we are) TKA or not:

Pasal 42 of 13/2003 states that individuals are not allowed to employ foreigners, and that every employer who has foreigners needs written permission. Also, all foreign workers must have a defined position and a time frame for work*.

So working for your spouse (an individual) and working for the company of the spouse (a CV is a company) would theoretically both not be possible since you would not comply with that law.

*Whether a foreigner working here is a foreign worker is a bit of a different discussion.

 

[dafluff]

But still, whether (we are) TKA or not:

Pasal 42 of 13/2003 states that individuals are not allowed to employ foreigners, and that every employer who has foreigners needs written permission. Also, all foreign workers must have a defined position and a time frame for work*.

*Whether a foreigner working here is a foreign worker is a bit of a different discussion.

No, it states that individuals are not allowed to employ "Tenaga Kerja Asing", which is a specific term, namely someone who is not WNI and holds a visa for the purpose of work. There is a distinction between a "Tenaga Kerja Asing" and simply "Orang Asing" or "WNA", and translating "Tenaga Kerja Asing" as just foreigner is incorrect. If the article in question states

Setiap pemberi kerja yang mempekerjakan orang asing wajib memiliki izin tertulis dari Menteri atau pejabat yang ditunjuk.

then your statement is correct. Instead the article is careful to state that

Setiap pemberi kerja yang mempekerjakan tenaga kerja asing wajib memiliki izin tertulis dari Menteri atau pejabat yang ditunjuk.

I have yet to see any credible source that disputes this, and if there ever was, I would post here as soon as I hear about it.

 

[jstar]

A 'letter of the law' interpretation, hmm? Perhaps this will help:
http://ditjenpp.kemenkumham.go.id/h...-di-indonesia-kebijakan-dan-implementasi.html

A quote from there:
Istilah TKWNAP ini dianggap kurang tepat, karena seorang tenaga kerja asing bukan saja datang (sebagai pendatang) dari luar wilayah Republik Idnonesia, akan tetapi ada kemungkinan seorang tenaga kerja asing lahir dan bertempat tinggal di Indonesia karena status keimigrasian orang tuanya (berdasarkan asas ius soli atau ius sanguinis).

 

[PhilippeD]

A 'letter of the law' interpretation, hmm? Perhaps this will help:
http://ditjenpp.kemenkumham.go.id/h...-di-indonesia-kebijakan-dan-implementasi.html

A quote from there:
Istilah TKWNAP ini dianggap kurang tepat, karena seorang tenaga kerja asing bukan saja datang (sebagai pendatang) dari luar wilayah Republik Idnonesia, akan tetapi ada kemungkinan seorang tenaga kerja asing lahir dan bertempat tinggal di Indonesia karena status keimigrasian orang tuanya (berdasarkan asas ius soli atau ius sanguinis).

it's not an interpretation, it's an application.

the first word to understand in the sentence is "kemungkinan" = MAYBE

This maybe mean it can have a possibility that someone born in Indonesia that can be a TKA.
Like he explain; a kid of a foreign couple (both) which can not have double citizenship and can not have kitas sponsored by an indonesian parent. He will be under a kitas/kitap sponsored by a company and even if he grow up in Indonesia he won't be able to work until he have a IMTA (work permit).
*from what I know its quite hard to keep a child as dependant of a foreign worker when he is older than 18 year old... so it's a very stretchy case.


all in all it come back to the same thing:
You are on a tourist visa or sosbud = you can't work
You are on a KITAS/KITAP sponsored by a company = you need a IMTA for work.
You are on a KITAS/KITAP sponsored by a spouse or a repatriated = you can't have a IMTA and you can work as you wish.


The law UU 6/2011 art 39 contain 14 situation (from A to N) where someone is considered as TKA and 6 (from a to f) which are not.
The law Pasal 61 UU 6/2011 give right to work to specific situation of people which are NOT TKA. (see post #25)

 

[jstar]

Philippe,

In fact you are not referring to the UU law text but an 'explanation' (penjelasan).

This is the original: http://m.hukumonline.com/pusatdata/downloadfile/lt4dd0e499bfbf9/parent/lt4dd0e447183ec



Now I don't challenge at all that it is stated that a foreigner should be able to provide bla bla bla. But I did make the remark more than once that if you are married to someone doing good business, it will be very hard to make the case you need to provide for anyone. But okay, I can see flipping burgers on a market is allowed if you are in financial worries.


And about this: It is stated that a CV (commanditair vennotschap) or individual can not employ a foreign worker. Over here people assume that the foreign worker is the formalized form of a TKA, so someone with a KITAS/P in his/her pocket which is for work. So that also means in possession of an IMTA at a certain company. And that is what I challenge; I had this passage read by 2 notaris (one of which is a sister in law) and a lawyer and the outcome was not that clear/obvious as some here present; the idea, the spirit of the law if you will, was according to these people that those individuals and CV's were not allowed to employ foreigners. Period. So what to believe then?

 

[PhilippeD]

provide for your need:
the law said: dapat melakukan pekerjaan dan/atau usaha untuk memenuhi kebutuhan hidup dan/atau keluarganya.

work AND/OR supply to your need AND/OR your family
Travailler et/ou pouvoir a tes besoins et/ou ta famille

This broaden the application to way more than only allowing yourself to not die.
You also need to keep in mind this text apply as much for foreign spouse than for expatriate *oups! I mean repatriate*

Explain me how you apply the "you can only work for your wife business" to an single repatriated?
This don't make sense at all!
When switch my kitas to wife sponsored I was said by the immigration woman MANY time I could work.
Later another department try to bully me and openly lie to me. It didn't take a lot, trowng a couple of law article by heart for they addict their bully and agree with me.
They even specifically ask me to wait to have my kitas at hand before starting to work. And they were aware of the work I want do as I meet them at the university while trying to deal an agreement with them. It's the university who ask them to confirm they could do business with me.
And we talk about a government university - not a private one.



For the CV it's the exact same thing than for every article about work.
Your friend forgot to make a difference in between TKA and kitas holder sponsored by spouse.
I already said it, the law is very clear about it. A kitas ikut istri holder CAN NOT have a IMTA.

The article 61 UU 6/2011 bring an exception which allow work to 2 particular case: holder of kitas sposored by spouse (and their kid) and repatriated kitas holder. *** see note***


read again my post #24 & 25 in this tread
it's the exact same thing I'm saying again and again


**Note: I forgot to mention Kitas & KITAP

 

[godmachine12]

and they have done nothing more then trying to intimidate me.

That and asking for a bung are about the only two things they can do well.