The short answer for founders in the waiting period
This guide is for foreign founders whose BOI application is filed or about to be, and who need to know what they can do before the promotion certificate is issued. Review times are set out in our BOI application process guide; the waiting period is real, and the business pressure during it is also real.
The rule: a pending application gives you no legal status. Promotion, and the Foreign Business Act treatment that comes with it, begins when the promotion is granted and the certificate issued, not when you file. Until then, your company is judged as an ordinary company.
That one point decides most of the questions below.
1. Why filing does not protect you
Under Section 12 of the Foreign Business Act, a foreigner whose business is promoted under the investment promotion law, and falls in List Two or List Three, notifies the Director-General and obtains a Foreign Business Certificate. The Director-General examines the validity of the promotion certificate and issues the certificate, and the foreigner is then exempted from most of the Act for as long as the business remains promoted.
Everything in that provision depends on a promotion certificate that exists. A filed application is not one.
In this guide, "foreign-majority" means the company counts as a foreigner under Section 4 of that Act, which turns on foreigners holding half or more of the capital. If your company is foreign-majority and the activity is in List Two or List Three, you need permission to operate it. Operating without it is an offence under Section 37, carrying imprisonment, fines, and a court order to stop the business or dissolve the company. List One businesses are generally closed to foreigners, and BOI's own criteria require Thai shareholders to hold at least 51% in those projects. BOI approval does not remove that.
Our practical advice: work out, before filing, whether your activity would be lawful for your company if BOI said no. If it would be, the wait is an inconvenience. If it would not, the wait is a legal constraint.
2. What is generally safe, what to check first, what to avoid
This table is our practical view of the position. It applies to a foreign-majority company whose activity needs BOI or a licence to operate lawfully.
| Activity | Position | Why |
|---|---|---|
| Registering the company | Safe | Incorporation is not operating a restricted business. Check the shareholding and objects match the BOI application |
| Negotiating, preparing documents, site visits | Safe | Preparation is not carrying on the business |
| Signing contracts conditional on BOI approval | Safe if drafted well | See section 4 |
| Leasing premises | Check first | Commit to a term and exit that work if BOI is refused |
| Hiring Thai staff | Check first | Employment is lawful, but staff on payroll for a business you cannot yet lawfully run is a cost you carry. Use probation or start dates tied to the certificate |
| Ordering machinery | Check first | See section 3 |
| Foreign founder or staff working | Check first, usually avoid | See section 5 |
| Invoicing customers and taking revenue | Avoid if the activity is restricted | This is the operation the Act regulates |
| Importing under duty privileges | Avoid | The privilege exists only after the certificate |
If your activity is not restricted at all, most of the "avoid" rows become ordinary business decisions, and the main question is only whether to hold off for tax and privilege reasons.
3. Money spent and goods bought before approval
Three separate points, and only the first is firmly established.
Import duty privileges come after the certificate. BOI's 2025 guide shows promoted companies submitting a master list of imported machinery for approval and then applying for each import, with the window for importing counted from the date of certificate issuance. Treat machinery bought and imported earlier as paying ordinary duty.
Whether pre-approval spending counts toward the project is not something we can state generally. We have not found a general rule in the BOI guide that settles it. Ask BOI about your project, in writing where possible, before you commit large sums.
Revenue before the certificate. Do not assume income earned before the certificate falls within a tax exemption. The exemption attaches to the promoted project on the terms of the certificate, and the starting point for the exemption period is a question to settle with your adviser on your own certificate.
Our practical advice: keep pre-certificate spending to what the business needs anyway, and keep invoices, import documents, and payments clearly dated and labelled so that whichever way BOI treats them, you can show what happened.
4. Contracts that still work if BOI says no
Foreign founders often sign supplier and customer contracts during the wait because the commercial window will not hold. Drafting for the risk is straightforward.
- Make the key obligations start on a defined event. For example, delivery, payment, or exclusivity begins on the date the promotion certificate is issued, or on a longstop date if it is not.
- Give both sides a right to withdraw if the promotion is refused or not issued by the longstop date, with a clear account of what has to be returned or paid.
- Cap what you commit before certification. Reservation deposits, rather than full orders, work better for equipment.
- Check who the contracting party is. If you sign in your own name before the company exists, you may be personally liable. Decide who contracts and whether it later transfers to the company.
- Do not describe the business in a way that contradicts the application. Contracts, emails, and invoices are evidence of what the company actually does. BOI officers and, later, auditors read them.
- Have a plan B structure that is lawful without BOI, even if it costs more, so a refusal changes the plan rather than ending it.
For general drafting support, see our contracts and documents service.
5. Can I work in Thailand while the application is pending?
Law: work by foreign nationals needs permission under the foreign working law, and the Investment Promotion Act points to that law. Section 24 allows the Board to permit foreign nationals to enter to study investment opportunities or do other acts benefiting investment, and Section 26 provides that people permitted under it can receive a work permit for a position the Board has approved, for the period of permitted stay. BOI's 2025 guide describes a route for foreign nationals who enter during the consideration of an application, separate from the route used after the certificate.
What that means in practice: there is a BOI mechanism for the waiting period, but it is a permission you apply for, with conditions on what you may do and for how long. Having filed, or being a shareholder, does not amount to it. Our guide on visas and work permits by structure explains why ownership and permission to work are separate questions.
Our practical advice:
- Do not let a founder or engineer start working on the basis that "BOI is pending".
- If someone must be in Thailand, apply for the pre-certificate permission, or use a route that fits the activity, and confirm what it allows in writing.
- Keep activities to those the permission actually covers.
- After the certificate, positions run through the promoted-project channel described in our guide to BOI work permits and visas.
We have not set out the processing steps or durations here, because BOI revises them. Confirm current requirements before applying.
6. A sensible sequence for the waiting period
- Test the fallback. Would the business be lawful without BOI? If not, decide now what you will do about it.
- Register the company with the shareholding that matches the application.
- Sign conditional contracts with the protections in section 4.
- Prepare, do not operate. Hire, lease, and order only where you can live with a refusal.
- Apply for the right foreign-personnel permission before anyone works.
- Diarise the post-approval deadlines from the moment the resolution arrives. They are covered in our guide on conditions after approval.
- Start revenue activity only once the certificate is issued and, where it applies, the Foreign Business Certificate has been obtained.
Further reading
- BOI application process: filing to certificate
- BOI work permits and visas for promoted companies
- The BOI certificate is where the obligations start
- Foreign Business Licence for service companies
- Which visa and work permit your Thai structure buys you
A pending BOI application is a request, not a status: plan the waiting period as though the answer might be no.
We advise foreign founders on the structure, contracts and permissions that bridge the gap between filing and certificate. Initial consultation is free — call +66 92 254 2045 or send us the details. See also company registration and visa and work permit services.
This guide is published by Suwanvara Law Firm — a Khon Kaen law firm established in 1986. General information only, not legal advice on a specific matter.
