Working While Overstaying in Japan: Unauthorized Activity, Illegal Employment, and What It Adds to Your Case

You already know that your period of stay has expired. But the rent still has to be paid, the utilities still arrive, and there is money you send home to your family. So you keep working. Many people who reach this article are living in exactly that situation.

Working while you are overstaying (unlawful residence) places a second problem on top of the first one. In both the criminal process and the immigration process, the assessment of your case shifts a step in an unfavourable direction. That shift, however, follows a clear legal structure. Once you know precisely where and how it operates, you can plan your next steps calmly.

Does working while overstaying add another crime

Even if you do not work at all, remaining in Japan beyond your period of stay is already a criminal offence. Article 70, paragraph (1), item (v) of the Immigration Control and Refugee Recognition Act (Immigration Control Act, 入管法) applies to a person who remains in Japan beyond the period of stay (including the period during which the person may stay under Article 20, paragraph (6)) without receiving an extension or change of that period. The statutory penalty, set out in the main clause of Article 70, paragraph (1), is a kōkinkei (custodial sentence) of up to three years or a fine of up to three million yen, or both.

Where you have also been working, in most cases the effect is not that a completely separate offence is added, but that the unlawful residence offence itself is assessed more seriously. And in the immigration process, that employment feeds directly into the assessment of your conduct.

What is unauthorized activity outside the status of residence (Article 70, paragraph (1), item (iv) and Article 24, item (iv)(a))

Unauthorized activity outside the status of residence (資格外活動) means that a person who is in Japan holding a status of residence engages in business operations generating income, or in activities for which remuneration is received, beyond what that status permits. A person with a student status of residence working beyond the scope of a permit for activity outside their status is the classic example.

Where it is clearly recognised that the person is engaged exclusively in such activity, two consequences follow. First, it is punishable under Article 70, paragraph (1), item (iv), with the same statutory penalty set out in the main clause of Article 70, paragraph (1). Second, it constitutes a ground for deportation under Article 24, item (iv)(a). The important point is that this framework presupposes that the person is staying in Japan holding a status of residence. It governs how you work while your period of stay is still running.

How is working treated once the period of stay has already expired

Once the period of stay has passed, you are no longer staying in Japan on the basis of a status of residence at all. For that reason, work carried out afterwards is treated in practice not under the unauthorized activity framework, but as work by a person who holds no status of residence, that is, as illegal employment (不法就労).

In that situation, two things are continuously true of you: the offence of unlawful residence under Article 70, paragraph (1), item (v), and the ground for deportation under Article 24, item (iv)(b). Article 24, item (iv)(b) designates as a ground for deportation a person who remains in Japan beyond the period of stay without receiving an extension or change, and it applies whether or not you have been working. In other words, before we even ask whether working adds a further ground for deportation, a ground for deportation already exists. The significance of the work appears in what happens next.

How does having worked affect the criminal disposition

The statutory penalty itself does not change. It remains a kōkinkei of up to three years or a fine of up to three million yen, or both, and it does not vary with the length of the overstay either.

What changes is which disposition the prosecutor selects, and the range within which the sentence falls. In practice, the length of the unlawful residence, understood as the period over which the unlawful state was maintained, is treated as a central factor bearing directly on the severity of the disposition. Illegal employment during that period tends to weigh towards a more serious assessment, because it shows the basis on which the unlawful state was sustained. Conversely, cases where the period is relatively short, where the person has reported voluntarily to an immigration services office, and where the basis of daily life and family relationships are clear, tend to move towards a lighter disposition. This is a tendency only, and there is considerable variation between cases.

How does having worked affect special permission to stay

It does affect it, but it does not by itself decide the outcome.

Article 50, paragraph (5) sets out by statute the matters to be considered: the reasons for wishing to stay, family relationships, conduct, the circumstances in which the person came to enter Japan, the period of stay in Japan, the person's legal status during that period, the facts constituting the ground for deportation, and the need for humanitarian consideration, together with domestic and international circumstances, the effect on illegal residents in Japan, and other matters. Illegal employment goes to the assessment of conduct.

The Guidelines on Special Permission to Stay, revised in March 2024 and in force from 10 June 2024, describe special permission as an exceptional and discretionary measure granted to a foreign national who is to be deported, and treat prolonged illegal residence as a negative factor. The same guidelines, however, expressly state that the fact that the person voluntarily reported to a regional immigration services office in order to declare their illegal residence is considered as a positive factor. Conduct alone does not determine the result.

Whether the requirements become stricter is a separate question. The proviso to Article 50, paragraph (1) provides that, for a person sentenced to life imprisonment or to a kōkinkei exceeding one year (excluding a person given a full suspension of execution, and a person given a partial suspension whose unsuspended portion is one year or less), or a person falling under Article 24, item (iii)-2, item (iii)-3, item (iv)(c), or item (iv), sub-items オ through ヨ, permission may be granted only where there are special circumstances such that refusing to permit the stay would be lacking in humanitarian consideration. Article 24, item (iv)(b), which covers unlawful residence, is not in that list. That is a favourable point. But if the criminal case results in an actual custodial sentence exceeding one year, this stricter requirement applies. This is precisely why the work of reducing the criminal disposition and the work of obtaining special permission to stay must be designed together from the outset.

Can working make you ineligible for a departure order

The fact of having worked does not by itself close off the departure order route. Other violations arising alongside the work, however, can close it.

To qualify for a departure order, all five requirements of Article 24-3 must be satisfied. Item (ii) requires that the person does not fall under any of Article 24, items (iii) through (iii)-5, or item (iv), sub-items ハ through ヨ. Neither item (iv)(b) (unlawful residence) nor item (iv)(a) (unauthorized activity) appears in that exclusion list. By contrast, falling under Article 24, item (iii)-5, which concerns forged residence cards and similar matters, or Article 24, item (iii)-4, which concerns promoting the illegal employment of others, means item (ii) is no longer satisfied. Article 24, item (iii)-4 is particularly important because the conduct alone is enough; a criminal punishment is not required.

Item (iii) further requires that, after entering Japan, the person has not been sentenced to a kōkinkei for offences including breaking into a residence, counterfeiting of currency, documents, securities or electromagnetic records for payment cards, gambling, homicide, injury, unlawful capture and confinement, kidnapping and abduction, theft and robbery, fraud and extortion, and offences relating to stolen property, together with certain other specified offences. If trouble at the workplace has developed into one of these offences, a departure order is again unavailable.

What happens to the employer or the person providing housing

Responsibility can also fall on the employer. Article 73-2 makes the promotion of illegal employment punishable, and where the employer is a foreign national, Article 24, item (iii)-4 also makes it a ground for deportation. Again, the conduct alone suffices; a criminal punishment is not required.

Even if you were the one working, if you introduced an acquaintance in the same position to a workplace, or were involved in arranging dormitory rooms or housing, the matter may go beyond a simple employment issue. Speaking honestly about this at the consultation stage is, in the end, what protects you.

Why acting before you are detected matters

As long as you are working, your life is exposed through the workplace. A street questioning by police, an inspection of the employer, a report from a related institution: there are many entry points for detection. And the way in which the matter comes to light leads directly to a different legal outcome.

Article 24-3, item (i) distinguishes two routes. Sub-item (a) covers a person who, before the commencement of a violation investigation under Article 27, voluntarily appears at an immigration services office with the intention of promptly departing from Japan. Sub-item (b) covers a person who, after a violation investigation has begun but before receiving the notice under Article 47, paragraph (3), states to an immigration inspector or immigration control officer that they intend to depart promptly.

This branching determines when you may next come to Japan. For a person who departs under a departure order, the period of denial of landing is one year from the date of departure under Article 5, paragraph (1), item (ix)(e). By contrast, where a person falling under Article 24-3, item (i)(b) departs under a departure order and then seeks to engage in activities as a temporary visitor, the period is five years from the date of departure under Article 5, paragraph (1), item (ix)(f). If the requirements for a departure order are not met and deportation follows, the period is five years from the date of deportation under Article 5, paragraph (1), item (ix)(c), and ten years under item (ix)(d) where there is already a history of deportation or of a departure order.

On top of that, the guidelines described above expressly treat voluntary reporting as a positive factor. The more your case carries the unfavourable fact of having worked, the more it matters whether you can secure that positive factor. The passage of time quietly removes these options.

About our office

Funado International Law Office (Fuse Building Main Wing 3F, 3-4-10 Takada, Toshima-ku, Tokyo) focuses primarily on criminal defence for foreign nationals and on immigration procedures, with a client base centred on Chinese nationals. Cases are handled by Daisuke Matsumura, attorney at law, a member of the Daiichi Tokyo Bar Association.

At our office, Mr Matsumura personally handles every stage, from the first detention visit through to the close of trial. Work is not delegated to clerical staff or junior attorneys. For Chinese, a dedicated in-house interpreter experienced in cases involving foreign nationals is always available, so that alongside the interpreter appointed by the investigating authorities you can also use an interpreter who acts for you. For other languages, we arrange interpreters according to the needs of the case. Renewal or change of status of residence after the criminal process is handled on a one-stop basis together with our partner administrative scrivener.

In cases where overstaying and employment overlap, our record includes the following.

• Special permission to stay obtained in a single procedure in a case regarded as difficult. A client who had entered Japan as a tourist had a child with a Japanese woman, but lost his status of residence and was arrested and prosecuted for illegal residence. The marriage and acknowledgement of paternity had not been completed and the authorities initially refused to accept the filings. Mr Matsumura negotiated with the authorities from a constitutional standpoint, secured the marriage and the acknowledgement, gathered favourable evidence even though almost no official documents were available from the country of nationality, and analysed past permission cases of the immigration authorities. Special permission to stay was obtained.
• Relief for a woman facing deportation over promotion of illegal employment. The client was wrongly accused of promoting illegal employment and faced deportation. Against the established practice that grounds for deportation require neither intent nor negligence, we brought proceedings questioning the reach of the principle of culpability and litigated through to the appellate stage. Special permission to stay was subsequently granted by the immigration authorities.

The first consultation is free of charge. Fees are quoted according to the circumstances of the case. Where the person concerned is in custody, we accept consultations from family members.

In closing

The fact that you have been working cannot be erased or hidden. But how that fact is framed, and which entry point you use to enter the procedure, are still matters of choice. The requirements for a departure order, the branching of the period of denial of landing, and the positive factors in special permission to stay all turn on what you do at the outset. This is the kind of problem where the options quietly diminish while you hesitate, so please seek advice early.

This article is a general explanation. For your individual case, please consult an attorney directly. Past results are based on the particular circumstances of each case and do not guarantee a similar outcome.

Author

Daisuke Matsumura, Attorney at Law

Daiichi Tokyo Bar Association (Registration No. 59077, admitted 2019)

Funado International Law Office (Fuse Building Main Wing 3F, 3-4-10 Takada, Toshima-ku, Tokyo)

Focuses primarily on criminal defence for foreign nationals and immigration procedures, with a client base centred on Chinese nationals.

Results include an acquittal in a case under the Stimulants Control Act (possession for the purpose of profit), a non-prosecution disposition in a special fraud case, and special permission to stay in cases regarded as difficult.

Contact

Funado International Law Office

Website: https://matsumura-lawoffice.jp/

WeChat ID: matsumura1119

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