1. What Is Illegal Employment?

The term "illegal employment" generally refers to work performed in violation of Japan's Immigration Control and Refugee Recognition Act.

This does not necessarily mean that the individual entered Japan illegally.

In many cases, the person may hold a valid Status of Residence but still be working in a manner that is not authorized.

Examples may include:

• working without any valid Status of Residence;
• working beyond the scope of an existing Status of Residence;
• working after the permitted period of stay has expired; or
• engaging in employment that requires permission which has not been obtained.

Therefore, immigration compliance involves more than simply checking whether someone possesses a Residence Card.

2. What Is the Crime of Facilitating Illegal Employment?

Japan's Immigration Act provides criminal penalties for employers and others who facilitate illegal employment under certain circumstances.

The purpose of this provision is to discourage the employment of individuals who are not legally authorized to work.

The offence is not limited to large corporations.

It may potentially affect:

• small businesses;
• restaurants;
• retail stores;
• construction companies;
• manufacturers;
• staffing agencies; and
• other employers.

Any business employing foreign nationals should understand its immigration compliance responsibilities.

3. Three Common Situations That May Create Risk

Although each case depends on the facts, three situations commonly receive attention.

① Employing Someone Without Permission to Work

The most obvious example involves employing a person who has no legal permission to work in Japan.

For example, this may include individuals who no longer possess a valid immigration status permitting employment.

② Allowing Work Beyond the Permitted Scope

A second situation involves employing someone in work that falls outside the activities permitted under that person's Status of Residence.

For example, holding a valid work visa does not automatically authorize every type of employment.

Immigration generally considers whether the actual duties fall within the scope of the granted status.

③ Employing Someone After the Period of Stay Has Expired

Another example involves continuing employment after the employee's authorized period of stay has expired.

For this reason, employers should establish procedures to monitor important immigration dates.

4. "We Didn't Know" May Not Always Be Enough

One of the most common statements made after immigration problems arise is:

"We didn't know."

However, immigration compliance generally requires employers to exercise appropriate care before hiring and during employment.

Whether an employer has fulfilled that responsibility depends on the individual circumstances.

For example, immigration authorities may consider whether the employer:

• checked the Residence Card;
• confirmed the employee's permission to work;
• reviewed the expiration date;
• understood the limitations of the employee's Status of Residence; and
• maintained reasonable employment records.

Ignoring obvious warning signs may increase legal risk.

5. Checking the Residence Card Is Only the First Step

Many employers believe that simply photocopying a Residence Card is sufficient.

In reality, immigration compliance may require a broader review.

Depending on the situation, employers may wish to confirm:

• the current Status of Residence;
• whether employment is permitted;
• the period of stay;
• whether additional permission is required;
• whether the proposed duties match the employee's immigration status; and
• whether any significant changes occur during employment.

Compliance is therefore an ongoing process rather than a one-time check performed on the employee's first day.

6. Common Examples in Practice

Immigration compliance issues may arise in many different industries.

Examples sometimes discussed include:

• restaurants employing students beyond permitted working hours;
• retail stores assigning duties outside the employee's permitted activities;
• construction companies hiring workers without confirming work authorization;
• manufacturing companies failing to monitor visa expiration dates;
• staffing agencies dispatching workers to duties outside their permitted scope; and
• companies assuming all foreign employees may perform identical work regardless of visa type.

Each case depends on its own facts. However, these examples demonstrate why immigration compliance should be incorporated into ordinary HR procedures.

7. Immigration Compliance Is Part of Risk Management

For employers, immigration compliance is not simply an immigration issue.

It is also part of corporate governance and risk management.

A business that regularly hires foreign nationals may benefit from establishing internal procedures covering:

• document verification;
• periodic visa reviews;
• HR training;
• record keeping;
• changes in job duties; and
• communication with immigration professionals when uncertain.

The important question is often not:

"Did we hire a foreign national?"

but:

"Did we establish a system that helps ensure ongoing immigration compliance?"