Overstaying on a Specified Skilled Worker or Business Manager Visa in Japan: What You Can Still Do

You had just left your accepting organization. Or your company's revenue fell and your extension was refused. While you were working out what to do, the expiry date on your residence card passed, and the days have kept going by. People who came to Japan on a Specified Skilled Worker ("特定技能") or Business Manager ("経営・管理") status of residence often come to us in exactly that situation. The date cannot be un-passed, but what you do from here makes a very large difference: to whether you can stay in Japan at all, and to how many years must pass before you can enter Japan again if you do leave.

What offence is it to stay past the expiry of a Specified Skilled Worker or Business Manager status?

Remaining in Japan after your period of stay has expired, without having received an extension or a change of status, is the offence of illegal overstay under Article 70, paragraph (1), item (v) of the Immigration Control and Refugee Recognition Act (Immigration Control Act). The statutory penalty, set out in the main clause of that paragraph, is a kōkinkei (custodial sentence) of up to three years, a fine of up to three million yen, or both. The same facts are also a ground for deportation under Article 24, item (iv)(b). A criminal process and an administrative process aimed at removing you from Japan therefore run in parallel. This does not vary with the type of status: it is the same for Specified Skilled Worker and for Business Manager.

What happens if I do nothing after leaving my accepting organization?

You may lose the status of residence itself well before the expiry date arrives. When there is a change concerning your affiliated organization or contracting organization, Article 19-16 requires notification within 14 days. Article 22-4, paragraph (1), item (vi) then makes it a ground for revocation of the status where a person holding a status listed in Appended Table I continues to reside for three months or more without engaging in the activities corresponding to that status, unless there is a justifiable reason. On revocation a period for departure may be designated, and remaining beyond it can bring you within Article 70, paragraph (1), items (iii), (iii)-2 and (iii)-3.

Seen the other way round, options remain while your period of stay is still running. A Specified Skilled Worker who has found a new accepting organization should apply promptly to change the status; a Business Manager continuing the business should apply for an extension. If the application is filed before expiry, you may stay until the disposition is made or until two months have passed from the expiry date (Article 20, paragraph (6)). That is why the overstay provision itself is drafted to include "the period during which the person may reside in Japan under the provisions of Article 20, paragraph (6)". Waiting for a decision is not an overstay. Once the date has passed, however, this route is closed.

What are the consequences if the authorities find "no substance to the business"?

An extension becomes difficult, the case may be examined for revocation of the status, and the outlook for special permission to stay is affected as well. The Business Manager status presupposes that an office has been secured and that the scale and continuity of the business satisfy the ministerial ordinance setting out the landing permission criteria. A company existing only on the register, an office not actually used, accounts through which neither money in nor money out is moving: all are assessed negatively. Article 50, paragraph (5) lists "the reason for wishing to reside", "the length of residence in Japan" and "the legal status during that period" among the matters considered for special permission to stay, so an inability to show the substance of the business translates directly into a weak reason for wishing to remain. The position is the same for Specified Skilled Worker: what matters is whether the reality of the work performed under the employment contract with the accepting organization can be explained. The objective materials to gather are these.

• The lease for the office, and material showing the premises were actually used
• Tax filings, financial statements and accounting books
• Contracts with business partners, invoices, and records of payments received and made
• Employment contracts, wage ledgers, and social insurance records
• For Specified Skilled Worker cases, the employment contract with the accepting organization, pay slips, and records of attendance and of the support provided

Each item alone may be a fragment, but if they fit together without contradiction they show that the business, or the employment, was genuinely operating. Material that appears to have been created after the fact tends to work against you.

What difference does it make to report to immigration voluntarily before being detected?

It makes a large difference to how long you must wait before you can come back to Japan. Article 24-3 sets out five requirements a person falling under Article 24, item (iv)(b) and certain other provisions must satisfy to be eligible for a departure order.

• Having appeared at an immigration office of your own accord, intending to leave Japan promptly, before a violation investigation under Article 27 begins (Article 24-3, item (i)(a)); or, after such an investigation has begun but before receiving the notice under Article 47, paragraph (3), having expressed to an immigration inspector or immigration control officer the intention to leave promptly (item (i)(b))
• Not falling under Article 24, items (iii) through (iii)-5, item (iv)(c) through (iv)(yo), item (viii) or item (ix)
• Not having been sentenced, since entering Japan, to a kōkinkei for the offences listed in item 3 of that Article, such as breaking into a residence, counterfeiting of currency, documents or securities, gambling, homicide, injury, unlawful confinement, kidnapping, theft and robbery, fraud and extortion, or offences relating to stolen property
• Never having been deported from Japan, and never having left Japan under a departure order
• Being reliably expected to leave Japan promptly

Where all five are met, the supervising immigration inspector orders departure promptly and fixes a deadline not exceeding 15 days (Article 55-85, paragraph (1)). Unlike deportation proceedings, this procedure does not presuppose detention.

How much difference is there between reporting voluntarily and being detected?

Different provisions on the period of denial of landing apply. A person who appeared voluntarily before the violation investigation began and left under a departure order is denied landing for one year from the date of departure (Article 5, paragraph (1), item (ix)(e)). Where the intention to depart was expressed only after the investigation had begun (Article 24-3, item (i)(b)), and the person then seeks to engage in activities as a temporary visitor, the period is five years (item (ix)(f)). If you are detected and fail to meet the requirements for a departure order, the case proceeds as deportation: five years from removal (item (ix)(c)), or ten years where there is a previous deportation or departure order (item (ix)(d)). The Guidelines on Special Permission to Stay (revised March 2024, in force 10 June 2024) state expressly that appearing at a regional immigration office of one's own accord in order to report illegal residence is a positive factor, while prolonged illegal residence is a negative one. If you consult us when the business first runs into difficulty, or when the contract ends, real choices are still open.

Can I still ask for special permission to stay?

Yes. Article 50, paragraph (1) provides that even where a person falls within the category of persons subject to deportation, the Minister of Justice may grant special permission to stay, on the foreign national's application or ex officio. Overstays arising out of Specified Skilled Worker or Business Manager status are in most cases considered under item (v) of that paragraph (other circumstances warranting special permission). The proviso imposes a heightened requirement for persons sentenced to indefinite imprisonment or to a kōkinkei exceeding one year, among others, namely that permission may be granted "only where there are found to be special circumstances such that refusing residence in Japan would be lacking in humanitarian consideration". A case involving nothing more than illegal overstay (Article 24, item (iv)(b)) does not fall within that proviso. That is a favourable starting point.

Procedurally, the application may be made by a person detained under a written detention order or subject to a decision on supervision measures (paragraph (2)), and no application is possible once a written deportation order has been issued (paragraph (3)). The decision follows acceptance of the findings or determination, or dismissal of the objection as unfounded (paragraph (4)). Paragraph (5) lists the matters considered: the reason for wishing to reside, family relationships, conduct, the circumstances of entry into Japan, the length of residence and the legal status during it, the facts constituting the ground for deportation, the need for humanitarian consideration, and also domestic and international circumstances and the effect on illegal residents in Japan. The Guidelines describe special permission as an exceptional measure of grace. Where it is refused, the person must be notified promptly in writing with reasons (paragraph (10)).

If the criminal penalty is light, can I stay in Japan?

The severity of the criminal disposition and the ability to remain in Japan are separate questions. The statutory penalty for illegal overstay is the same however long the overstay lasted; what changes with the length is the prosecutor's choice of disposition and the range of sentencing. In practice the length of the overstay, as the period over which the unlawful state was maintained, is the central factor bearing on severity. A short period, a voluntary appearance, and a clear basis of daily life and family relationships tend towards lighter dispositions; a long period, with other violations such as illegal work or forged documents added, tends towards heavier ones. There is a range from case to case, and no single answer can be given. Even where the criminal case ends in a non-prosecution disposition or a suspended sentence, the deportation procedure under Article 24, item (iv)(b) continues all the same. Conversely, once an actual custodial sentence exceeds one year, the heightened requirement in the proviso to Article 50, paragraph (1) applies and the outlook for special permission becomes considerably harder. That is why mitigating the criminal disposition and obtaining permission to stay must be designed together from the very first steps.

About our office

Funado International Law Office is located at Fuse Building Main Wing 3F, 3-4-10 Takada, Toshima-ku, Tokyo. Daisuke Matsumura is a member of the Daiichi Tokyo Bar Association (registration number 59077, admitted 2019) and concentrates on criminal defence for foreign nationals, principally clients of Chinese nationality, and on immigration procedures.

Three features characterise how we work. First, Mr Matsumura personally handles every stage, from the first visit at the police station to the close of trial; the work is not delegated to clerical staff or junior lawyers. Second, a dedicated Chinese interpreter experienced in cases involving foreign nationals is on staff; for other languages, an interpreter is arranged according to the case. Having an interpreter who acts for the client, separate from the interpreter designated by the investigating authorities, matters particularly where the content of the business, the history of transactions and the reality of an employment contract must be explained in detail. Third, extensions and changes of status after the criminal process ends are handled on a one-stop basis with an administrative scrivener we work with.

Two related matters may be mentioned. In the first, a client who had lost his status of residence was arrested and prosecuted for illegal residence; the marriage and acknowledgment of paternity were initially refused by the authorities, we negotiated from a constitutional standpoint until both were achieved, gathered favourable evidence although almost no official documents from the country of nationality existed, analysed past grants, and obtained special permission to stay in a single set of proceedings. In the second, a woman wrongly accused of promoting illegal work faced deportation; against the established practice that intent or negligence is not required for a ground of deportation, we brought proceedings testing the reach of the principle of culpability and litigated to the appellate stage, and special permission to stay was subsequently granted.

The first consultation is free of charge. Fees are quoted according to the case.

In closing

The period between the day you realise your permission has expired and the day you are detected is the period in which you have the most choices. For a Specified Skilled Worker, how far you get with finding the next accepting organization; for a Business Manager, how much material showing the substance of the business you can assemble: these are what divide the outcomes. Please do not carry it alone, and speak to a lawyer early.

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

Author

Daisuke Matsumura, Attorney at Law

Daiichi Tokyo Bar Association (registration number: 59077, admitted 2019)

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

Concentrates on criminal defence for foreign nationals, principally clients of Chinese nationality, and on immigration procedures.

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

Contact

Funado International Law Office

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

WeChat ID: matsumura1119

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