Some key changes on Decree No. 152/2020/ND-CP regarding foreign employees working in Vietnam

12 Apr 2021

On 30 December 2020, The Government promulgated Decree No. 152/2020/ND-CP regarding foreign employees working in Vietnam (“Decree 152”). Decree 152 is effective from 15 February 2021 and replaces Decree No. 11/2016/ND-CP (as amended by Decree No. 140/2018/ND-CP).

This Decree regulates foreign employees working in Vietnam as well as the recruitment and management of Vietnamese working for foreign organisations and individuals in Vietnam following the provisions of the revised Labour Code. It specifically deals with the conditions and procedures for issuance, re-issuance and extension, withdrawal of work permit and confirmation letter in cases where foreign employees are exempted from having a work permit under Article 157 of the Labour Code and under Clauses 1, 2 and 9 of Article 154 of the Labour Code. It also covers the recruitment and management of Vietnamese employees working for foreign organisations and individuals under Clause 3, Article 150 of the Labour Code.

Vietnam-legal.com would like to give some of the key highlights of Decree 152.

I. Conditions to determine internal transfer, expert and technical worker

Work permits are issued to foreign individuals meeting the requirements for expert, manager, executive or technical worker. Article 3 of Decree 152 includes additional criterion to qualify as an internal transfer, expert and technical worker.

1. Internal transfer: Amongst other conditions, a foreign employee must be employed by the foreign enterprise at least 12 consecutive months prior to the transfer date (the employment period required previously is only 12 months).

2. Expert:

Under Decree 152, a foreign employee can no longer be certified as an expert by a foreign agency or organisation for the purpose of working in Vietnam. Experts will now be determined solely by years of working experience and qualifications. The following must be satisfied for certification as an expert:

a. An individual holding a bachelor’s degree or equivalent and has at least 3 years’ experience in their field corresponding with the job position/job assignment that they will be appointed in Vietnam; or

b. Has at least 5 years’ experience and a practicing certificate in corresponding with the job position that they will be appointed in Vietnam; or

c. Falls under a special case subject to the decision of the Prime Minister according to a request from the Ministry of Labour, War Invalids and Social Affairs (MoLISA).

This is different from Decree 11 where a document from a foreign organisation, enterprise or agency stating that the person was an expert would be sufficient. Moreover, the required corresponding experience has increased from 3 to 5 years and a practicing certificate is required.

3. Technical worker:

Decree 152 introduces an additional opportunity for certification as a technical worker. Prior to Decree 152, a person could be considered a technical worker only by demonstrating at least 1 year of relevant training and three years working in the field. Decree 152 now adds an additional consideration as follows:

a. An individual that has been trained in a technical field or another major for at least 1 year and has worked for at least 3 years in their trained field; or

b. Has at least 5 years’ experience corresponding with the job position that they will be appointed in Vietnam.

Note that the criterion under b did not exist in Decree 11.

II. Adjusting and supplementing the cases where approvals of demand for recruiting foreign employees are not required

1. The head of the representative office, project or a person otherwise taking main responsibility for the operation of international organization or foreign no-governmental organization in Vietnam

2. The foreign employee is the owner or capital contributor of a limited liability company with a capital contribution value of at least 3 billion Vietnam Dong

3. The foreign employee is the Chairperson or a member of the Board of Directors of a joint-stock company with a capital contribution value of at least 3 billion Vietnam Dong

4. Entering Vietnam to work at the position of a manager, executive director, expert or technical employee for a working time of less than 30 days and not more than 3 times a year

5. Entering Vietnam to implement international agreements signed by agencies or organizations at the central or provincial level in accordance with the law

6. Relatives of members of a foreign representative agency in  Vietnam who are permitted to work according to an international treaty of which Vietnam is a member

7. A person having a service/ official passport working for a State agency, political organization or a socio-political organization

8. A person in charge of setting up the commercial presence of an organization in Vietnam;

III. Adjusting and supplementing some cases which will be exempted from requiring a work permit

1. Foreigners married to Vietnamese citizens and living in Vietnam;

2. Owners or shareholding members of limited liability companies with a capital contribution of VND 3 billion or more;

3. Chairpersons or members of the Board of Directors of joint-stock companies with a capital contribution of VND 3 billion or more;

 4. Foreign experts, managers, CEOs, and skilled workers going to work in Vietnam for less than 30 days per trip and no more than three trips per year;

5. Foreigners coming to Vietnam to set up a commercial presence of a foreign entity in Vietnam.

6. He/she is certified by the Ministry of Education and Training as a foreign worker entering Vietnam for teaching and research purpose.

In which, 4 cases at number 1, 2, 3, 4 are not required to obtain either Work Permit or Certificate of Work Permit Exemption, but their employers must inform competent authorities of foreign employees at least 03 days prior to such employees’ starting date.

IV. Reduction in special cases of issuance work permit

Decree 152 mentions about 2 special cases of issuance work permit instead of 4 cases according to Decree 11/2016/NĐ-CP:

1. A foreign worker who has been issued with a work permit which remains valid wishes to work for another employer at the same job position and job title in the work permit

2. A foreign worker who has been issued with a work permit which remains valid wishes to work for the same employer but at another job position or job title or working form in the work permit

V. Duration of Work Permit or Certificate of Work Permit Exemption

Decree 152 confirms that work permit and Certificate of Work Permit Exemption are still valid for 2 years in maximum and allowed to be renewed once time with a maximum term of 2 years. After that, the employer shall have to apply for a new WP for the foreign employee.

VI. Changing the application for the issuance, re-issuance, and renewal of work permits / certification of Work Permit Exemption

Changing in the application forms:

1. Application form using for new issuance, re-issuance and renewal of work permits now is form No. 11/PLI instead of Form No. 7 according to Circular 40/2016/TT-BLĐTBXH

2. Application form for explanation/ change in foreign labor demand is form No. 01/ PLI or form No.2/PLI instead of form 1 and form 2 according to Circular 18/2018/TT-BLĐTBXH

3. Application form for Certificate of Work Permit Exemption is form No. 9/PLI instead of form 5 according to Circular 18/2018/TT-BLĐTBXH

To get more specific support and guidance in issuance, re-issuance and renewal of Work Permit or Certificate of work permit exemption, please feel free to contact Vietnam-legal.com.