1. Working for the same employer but different job position

Pursuant to Point b, Clause 9, Article 9 of Decree 152/2020/ND-CP, a foreign worker who has been issued a work permit that remains valid and whose job assignment, job title or working form is changed compared to that stated in current his/her work permit but who still works for the previous employer, must apply for a new work permit with the requirements below:

• Application form to apply for a work permit;
• Proof as a manager, executive, expert, technical worker or other position;
• A document on approval of the demand for employment of foreign workers, unless it is not required to determine the demand for employment of foreign workers
• 02 photos (size 4 cm x 6 cm, white background, straight face, bare head, not wearing colored glasses), photos taken within 06 months from the date of application.
• Certified copy of passport or copy of passport certified by the employer
• Documents relevant to the foreign worker in Clause 8, Article 9 of Decree 152/2020/ND-CP

2. Same job postion but different employer

Pursuant to Point a, Clause 9, Article 9 of Decree 152/2020/ND-CP, a foreign worker who has been issued a work permit that remains valid and who wishes to work for another employer in the same job assignment and with the same job title as stated in his/her work permit, a dossier of application for a new work permit must comprise:

• The previous employer’s certification that the foreign worker is currently working;
• Application form to apply for a work permit;
• A document on approval of the demand for employment of foreign workers, unless it is not required to determine the demand for employment of foreign workers
• 02 photos (size 4 cm x 6 cm, white background, straight face, bare head, not wearing colored glasses), photos taken within 06 months from the date of application.
• Certified copy of passport or copy of passport certified by the employer
• Documents relevant to the foreign worker in Clause 8, Article 9 of Decree 152/2020/ND-CP

According to the above regulations, when foreign workers change their job position or move to another company, they must apply for a new work permit.

1. Experts are foreign laborers falling into one of the following cases:

– Graduated from university or higher or its equivalent.

– Have at least 3 years of relevant work experience for the position they intend to work in Vietnam.

(Decree No. 152/2020/NĐ–CP, prior to the amendment, required “at least 3 years of work experience in the relevant field of study.“)

Now, Decree No. 70/2023/NĐ-CP has been amended to only require foreign workers to have work experience relevant to the position they intend to undertake, without the need for it to be related to their trained field of study.

2. Chief Executive Officer is a person falling into one of the following cases:

a) The head of a branch, representative office, or business location of an

b) The head of and directly responsible for managing at least one sector of an agency, organization, or enterprise, and subject to the direct direction and management of the head of the agency, organization, or enterprise.

Decree No. 152/2020/NĐ-CP prior to the amendment: “The Chief Executive Officer (CEO) is the person at the top who directly manages the subordinate unit of an agency, organization, or enterprise.”

Now,   Decree   No.   70/2023/NĐ-CP   has   been amended to include additional cases where the Chief Executive Officer may belong to, as listed in points a) and b)

3. Technical employee are foreign laborers falling into one of the following cases:

They have been trained for at least 1 year and have a minimum of 3 years of relevant experience for the position they intend to work in Vietnam.

(Decree No. 152/2020/NĐ–CP, prior to the amendment: “They have been trained in technical or other fields for at least 01 year and have worked for at least 03 years in the trained field.)

Now,   Decree   No.   70/2023/NĐ-CP   has   been amended to remove the requirement for technical workers to have specialized training. Instead, technical workers need to have the necessary experience, allowing them to work in various technical fields.

4. Determination of the need for foreign labor usage:

a) At least 15 days before the intended use of foreign laborers, employers (excluding contractors) are responsible for determining the need for foreign laborers for each position that Vietnamese laborers cannot fulfill and reporting the rationale to the Ministry of Labor, War Invalids, and Social Affairs or the Department of Labor, War Invalids, and Social Affairs in the location where foreign  laborers are intended to work, using Form No. 01/PLI in Appendix I issued with this Decree.

During the implementation, if there are changes in the need for foreign laborers regarding position, job title, work format, quantity, or location, employers must report to the Ministry of Labor, War Invalids, and Social Affairs or the Department of Labor, War Invalids, and Social Affairs,  using  Form  No.  02/PLI  in  Appendix  I issued with this Decree, at least 15 days before the intended use of foreign laborers.

(Decree No. 152/2020/NĐ–CP (prior to the amendment): Required employers to determine the need for foreign laborers or report changes in the need for foreign laborers regarding position, job title, work format, quantity, or location at least 30 days before the intended use of foreign laborers.)

Now,  Decree  No.  70/2023/NĐ-CP  has   been amended to reduce this notification period to 15 days.

5. Announcement of Vietnamese Labor Recruitment:

Starting from January 1, 2024, the announcement of the recruitment of Vietnamese workers for positions intended for foreign laborers is to be carried out on the electronic information portal of the Ministry of Labor, War Invalids, and Social Affairs (Job Center) or the electronic information portal of the Job Service Center established by the Chairperson of the People’s Committee of a centrally-affiliated province or city, at least 15 days from the date of the intended report to the Ministry of  Labor, War Invalids, and Social Affairs or the Department of Labor, War Invalids, and Social Affairs in the location where foreign laborers are intended to work. The announcement should include information about the position and job title, job description, quantity, educational and experience requirements, salary level, working hours, and location.

After being unable to recruit Vietnamese laborers for positions intended for foreign laborers, employers are responsible for determining the need for foreign laborers as specified in point a) Clause 1 of this Article (determining the need for foreign laborers).

(Decree No. 152/2020/NĐ–CP, prior to the amendment: Not specified)

Thus,   Decree   No.   70/2023/NĐ-CP   has   been supplemented and amended to reduce the notification period for the need for foreign laborers from 30 days to 15 days and to introduce provisions for the announcement  of the recruitment of Vietnamese workers on the electronic information portal starting from January 1, 2024.

6. Additional Cases exempt from explaining the need for Foreign Labor usage:

1. Foreign lawyers who have been granted a practicing certificate in Vietnam in accordance with the Law on

2. Foreigners married to Vietnamese citizens and residing within Vietnamese

3. Those entering Vietnam to provide specialized and technical consulting services or perform other tasks serving research, construction, assessment, monitoring, and evaluation, management, and implementation of programs and projects using official development assistance (ODA) funds as regulated or agreed upon in international agreements on ODA signed between Vietnam’s competent authorities and foreign

4. Those granted a permit by the Ministry of Foreign Affairs to operate information and press activities in Vietnam in  accordance with the law.

5. Volunteer workers as defined in Clause 2, Article 3 of this Decree.

(Decree No. 152/2020/NĐ–CP, prior to the amendment: Did not list cases exempt from explaining the need for foreign labor usage)

Thus,     Decree    No.    70/2023/NĐ-CP    has expanded the scope of exemptions from explaining the need for foreign labor usage.

7. Listing of All Work Locations using Form No. 11/PLI in Appendix I issued with Decree 70/2023/NĐ-CP: 

In cases where foreign workers work for one employer at multiple locations, the request for a labor permit must list all work locations in full.

(Decree No. 152/2020/NĐ–CP, prior to the amendment: Not required)

Decree  No.  70/2023/NĐ-CP  has  expanded  the requirement, stating that if a foreign worker works for one employer at multiple different locations, the request for a labor permit using Form No. 11/PLI must list all work locations in full.

8. Documents Proving to be Managers or Chief Executive Officers include 3 types of documents:

1. Company charter or regulations of the agency, organization, or

2. Business registration certificate or establishment certificate or equivalent legal

3. Resolutions or decisions on appointment by the agency, organization, or enterprise.

(Decree No. 152/2020/NĐ–CP, prior to the amendment: Did not specify these 3 types of documents)

Decree     No.     70/2023/NĐ-CP     has     now extended the requirement to specify these 3 types of documents as proof of being managers or chief executive officers.

9. Application for a New Work Permit for Foreign Workers who are Experts or Technical Workers and have  been Granted a Work Permit and its Extension Once:

For foreign workers who are experts or technical workers and have been granted a work permit and its extension once, but have a need to continue working in the same job position and job title as indicated in the work permit, the application for a new work permit must include the following documents:

1. Work Permit Application Form (Form 11PLI)

2. Health examination certificate

3. Two photos

4. Position approval

5. Certified true copy of passport

6. Relevant documents related to the foreign worker

7. Certified true copy of the previously issued work

(Decree No. 152/2020/NĐ-CP, prior to the amendment: Not specified)

Decree   No.   70/2023/NĐ-CP   has   added provisions regarding the application for a new work permit, including the listed documents, for foreign workers who are experts or technical workers and have been granted a work permit and its extension once, but wish to continue working in the same job position and job title.

10. Cases of Reissuing Work Permits:

In cases where there is a change in one of the following details: name, nationality, passport number, workplace, or a change in the enterprise’s name without changing the enterprise’s identification number as recorded in the  work  permit, the work permit can be reissued if it is still valid.

(Decree No. 152/2020/NĐ–CP, prior to the amendment: Only mentioned changes in name, nationality, passport number, or workplace recorded in the work permit if it is still valid)

Decree No. 70/2023/NĐ–CP has added a new provision, which is “changing the enterprise’s name without changing the enterprise’s identification number as recorded in the work permit if it is still valid,” as a condition for reissuing a work permit.

Source: imglobalvienam.com

 GOVERNMENT

^________

No. 70/2023/ND-CP

SOCIALIST REPUBLIC OF VIETNAM
Independence – Freedom – Happiness

^{_______________________}

Hanoi, September 18, 2023

DECREE

Amending and supplementing a number of articles of the Government’s Decree No. 152/2020/ND-CP dated December 30, 2020 regulating foreign workers working in Vietnam and recruiting and managing Vietnamese workers working for foreign organizations and individuals in Vietnam

^____________

Pursuant to the Law on Government Organization dated June 19, 2015; Law amending and supplementing a number of articles of the Law on Government Organization and the Law on Organization of Local Government dated November 22, 2019;

Pursuant to the Labor Code dated November 20, 2019;

Pursuant to the Law on Investment dated June 17, 2020;

Pursuant to the Enterprise Law dated June 17, 2020;

At the proposal of the Minister of Labor, War Invalids and Social Affairs;

The Government promulgates a Decree amending and supplementing a number of articles of the Government’s Decree No. 152/2020/ND-CP dated December 30, 2020 regulating foreign workers working in Vietnam and recruiting and managing Vietnamese workers working for organizations,  foreign individuals in Vietnam.

Article 1. Amending and supplementing a number of articles of the Government’s Decree No. 152/2020/ND-CP dated December 30, 2020 regulating foreign workers working in Vietnam and recruiting and managing Vietnamese workers working for foreign organizations and individuals in Vietnam

1. To amend and supplement a number of points and clauses of Article 3 as follows:

a/ To amend and supplement Point a, Clause 3, Article 3 as follows:

“a) University degree or higher or equivalent and at least 3 years of work experience suitable to the job position that the foreign worker intends to work in Vietnam.”.

b/ To amend and supplement Clause 5, Article 3 as follows:

“5. An executive director is a person who falls into one of the following cases:

a) The head of the branch, representative office or business location of the enterprise.

b) The head and directly administers at least one field of the agency, organization or enterprise and is under the direct direction and administration of the head of the agency, organization or enterprise.”.

c/ To amend and supplement Point a, Clause 6, Article 3 as follows:

“a) Be trained for at least 1 year and have at least 3 years of experience suitable to the job position that the foreign worker intends to work in Vietnam.”.

2. Article 4 is amended and supplemented as follows:

“Article 4. Employing foreign workers

1. Determine the need to employ foreign workers

a) At least 15 days before the expected date of employment of foreign workers, the employer (except the contractor) shall determine the demand for foreign workers for each job position that the Vietnamese employee has not yet met and report to the Ministry of Labor, War Invalids and Social Affairs or the Department of Labor. War Invalids and Social Affairs where the foreign worker plans to work according to Form No. 01/PLI Annex I promulgated together with this Decree.

In the course of implementation, if the demand for employing foreign workers changes in terms of position, job title, working form, number and location, the employer must report to the Ministry of Labor, War Invalids and Social Affairs or the Department of Labor, War Invalids and Social Affairs according to Form No. 02/PLI Annex I promulgated together with this Decree in advance at least 15 days from the expected date of employment of foreign workers.

b) In the case of foreign workers specified in Clauses 3, 4, 5, 6 and 8, Article 154 of the Labor Code and Clauses 1, 2, 4, 5, 7, 8, 9, 10, 11, 12, 13 and 14, Article 7 of this Decree, the employer is not required to determine the need to employ foreign workers.

c) From January 1, 2024, the announcement of recruitment of Vietnamese workers to positions expected to recruit foreign workers shall be made on the Portal of the Ministry of Labor, War Invalids and Social Affairs (Employment Department) or the Portal of the Employment Service Center by the Chairman of the provincial People’s Committee, centrally-run cities shall decide to establish themselves within at least 15 days from the expected date of reporting to the Ministry of Labor, War Invalids and Social Affairs or the Department of Labor, War Invalids and Social Affairs where the foreign worker is expected to work. The content of the recruitment announcement includes: position and job title, job description, number, qualification requirements, experience, salary, time and location of work. After failing to recruit Vietnamese workers to positions recruiting foreign workers, the employer shall determine the need to employ foreign workers as prescribed at Point a, Clause 1 of this Article.

2. The Ministry of Labor, War Invalids and Social Affairs or the Department of Labor, War Invalids and Social Affairs shall approve or disapprove the employment of foreign workers for each job position according to Form No. 03/PLI Appendix I promulgated together with this Decree within 10 working days from the date of receipt of the explanatory report; or report explaining changes in demand for foreign workers.”.

3. Clause 3 of Article 6 is supplemented as follows:

“3. In case a foreign worker works for an employer in many provinces or centrally-run cities, within 3 working days from the date the foreign worker starts working, the employer must report electronically to the Ministry of Labor, War Invalids and Social Affairs and the Department of Labor, War Invalids and Social Affairs the association where the foreign worker comes to work according to Form No. 17/PLI Annex I promulgated together with this Decree.”.

4. To amend and supplement a number of clauses of Article 7 as follows:

a/ To amend and supplement Clause 6 of Article 7 as follows:

“6. Being sent to Vietnam by a competent foreign agency or organization to teach or act as a manager or executive director at an educational institution proposed by a foreign diplomatic mission or intergovernmental organization to establish in Vietnam; establishments and organizations established under international treaties to which Vietnam has signed and acceded.”

b/ To amend and supplement Clause 14, Article 7 as follows:

“14. To be certified by the Ministry of Education and Training of foreign workers to enter Vietnam to perform the following jobs:

a/ Teaching and research;

b/ To act as managers, managing directors, principals and vice principals of educational institutions proposed to be established in Vietnam by foreign diplomatic missions or intergovernmental organizations.”.

5. To amend and supplement a number of points and clauses of Article 9 as follows:

a/ To amend and supplement Clause 1, Article 9 as follows:

“1. A written application for a work permit by the employer according to Form No. 11/PLI Appendix I promulgated together with this Decree. In case a foreign worker works for one employer at more than one location, the written application for a work permit must list all working locations.”

b/ To amend and supplement Points a and b, Clause 4, Article 9 as follows:

“a) Documents proving that the manager or executive director as prescribed in Clauses 4 and 5, Article 3 of this Decree include the following 3 types of papers:

– The company’s charter or operation regulations of agencies, organizations or enterprises;

– Certificate of enterprise registration or certificate of establishment or establishment decision or other document of equivalent legal validity;

– Resolutions or decisions on appointment of agencies, organizations or enterprises.

b) Papers proving technical experts and laborers as prescribed in Clauses 3 and 6, Article 3 of this Decree include the following 2 types of papers:

– Diplomas or certificates or certificates;

– Written certification of the overseas agency, organization or enterprise on the number of years of experience of experts, technical workers or work permits that have been granted or confirmed not to be eligible for the granted work permit.”.

c/ To amend and supplement the name of Clause 8, Article 9 as follows:

“8. Documents related to foreign workers, except for the case of foreign workers specified at Point a, Clause 1, Article 2 of this Decree.”.

d/ To amend and supplement Point e, Clause 8, Article 9 as follows:

“e) For foreign workers working as prescribed at Point i, Clause 1, Article 2 of this Decree, there must be a document from the foreign agency, organization or enterprise sending the foreign worker to work in Vietnam and suitable to the expected job position or documents proving that they are managers as prescribed in Clause 4 Article 3 of this Decree.”.

đ) Point c, Clause 9, Article 9 is supplemented as follows:

“c) For foreign workers who are experts or technical workers who have been granted a work permit and have been extended once but wish to continue working with the same job position and job title stated in the work permit, the dossier of application for a new work permit shall include the documents specified in Clause 1,  2, 5, 6, 7, 8 of this Article and a copy of the work permit issued.”.

6. Clause 2 of Article 11 is amended and supplemented as follows:

“2. Within 05 working days after receiving a complete application for a work permit, the Ministry of Labor, War Invalids and Social Affairs or the Department of Labor, War Invalids and Social Affairs where the foreign worker intends to work shall issue a work permit to the foreign worker according to Form No. 12/PLI Appendix I promulgated together with the Decree this determination. In case of refusal to issue a work permit, a written reply clearly stating the reason shall be given.

The work permit is A4 size (21 cm x 29.7 cm), consisting of 2 pages: page 1 is blue; Page 2 has a white background, blue pattern, in the middle in the shape of a star. Work permits are coded as follows: codes of provinces and centrally-run cities and codes of the Ministry of Labor, War Invalids and Social Affairs according to Form No. 16/PLI Appendix I promulgated together with this Decree; last 2 digits of the year of issuance of the license; type of license (new symbol 1; renewal of symbol 2; re-issuance of symbol 3); sequence number (from 000.001).

In case the work permit is electronic, it must comply with relevant laws and meet the contents according to Form No. 12/PLI Annex I promulgated together with this Decree.”.

7. Clause 3 of Article 12 is amended and supplemented as follows:

“3. Change one of the following contents: full name, nationality, passport number, working location, change of enterprise name without changing the enterprise code stated in the valid work permit.”.

8. Clause 7 of Article 17 is amended and supplemented as follows:

“One of the documents specified in Clause 8, Article 9 of this Decree proves that the foreign worker continues to work for the employer according to the content of the granted work permit, unless the foreign worker works as prescribed at Point a, Clause 1, Article 2 of this Decree.”.

9. Point b, Clause 1, Article 22 is amended and supplemented as follows:

“b) Organizations that are decentralized, delegated, assigned, ordered or tendered by provincial-level People’s Committees.”.

10. Point b, Clause 4, Article 27 is amended and supplemented as follows:

“b) Organizations that are decentralized, authorized, assigned, ordered or bid by provincial-level People’s Committees to recruit and manage Vietnamese laborers working for foreign organizations and individuals shall report to the Department of Labor, War Invalids and Social Affairs.”.

11. To amend and supplement a number of points and clauses of Article 30 as follows:

a/ To amend and supplement Point a, Clause 1, Article 30 as follows:

“a) Implement the approval of the demand for employing foreign workers; confirmation of not being eligible for a work permit; issuance, re-issuance, extension and revocation of work permits for foreign workers in one of the following cases:

Working for the employer specified at Point g, Clause 2, Article 2 and the employer specified at Points c, d, e, Clause 2, Article 2 of this Decree are permitted by the Government, the Prime Minister, ministries, ministerial-level agencies and agencies attached to the Government;

Working for an employer in many provinces and centrally-run cities.”.

b/ To amend and supplement Point c, Clause 1, Article 30 as follows:

“c) Perform the unified state management of recruitment and management of foreign workers working in Vietnam from central to local levels and manage Vietnamese working for foreign organizations and individuals in Vietnam.”.

c/ To amend and supplement Clause 3, Article 30 as follows:

“3. Responsibilities of the Ministry of Defence:

a/ To coordinate with competent agencies in charge of foreign workers and Vietnamese laborers working for foreign organizations and individuals in Vietnam in complying with the provisions of law on ensuring security and order in strategic areas,  key and weak areas for national defense.

b/ To direct the Border Guards to coordinate with functional forces in managing and inspecting Vietnamese laborers working for foreign organizations and individuals in Vietnam and foreign workers working in border areas, border gates, islands and maritime areas in order to firmly protect territorial sovereignty,  security, national borders of the Fatherland.”

d/ To amend and supplement Point a, Clause 4, Article 30 as follows:

“a) Monthly provide information on foreign workers granted visas with symbols including: DN1, DN2, LV1, LV2, LĐ1, LĐ2, DT1, DT2, DT3, DT4 to work for agencies, organizations and enterprises to the Ministry of Labor, War Invalids and Social Affairs;”.

dd) To amend and supplement Point a, Clause 6, Article 30 as follows:

“a) Implement the approval of the demand for employing foreign workers; confirmation of not being eligible for a work permit; issuance, re-issuance, extension and revocation of work permits for foreign workers in one of the following cases:

Working for the employer specified at Points a, b, h, i, k, l, Clause 2, Article 2 and the agencies and organizations specified at Points c, d, e, Clause 2, Article 2 of this Decree by provincial-level People’s Committees, specialized agencies affiliated to provincial-level People’s Committees,  District-level People’s Committees shall be established;

Working for employers at multiple locations in the same province or centrally-run city.”.

12. To amend and supplement a number of templates as follows:

a) Amending Form No. 01/PLI; Form No. 02/PLI; Form No. 07/PLI; Form No. 08/PLI Annex I promulgated together with Decree No. 152/2020/ND-CP into Form No. 01/PLI; Form No. 02/PLI; Form No. 07/PLI; Form No. 08/PLI Appendix promulgated together with this Decree;

b) Add Form No. 16/PLI and Form No. 17/PL1 to Appendix I promulgated together with Decree No. 152/2020/ND-CP.

13. Substituting or supplementing a number of words and phrases at the following points, clauses, articles and appendices:

a) To replace the phrase “Chairman of the provincial-level People’s Committee” in Clause 1, Article 5 with the phrase “Department of Labor, War Invalids and Social Affairs”; Replace the phrase “The Chairman of the People’s Committee of the province shall direct” with the phrase “proposed by the Department of Labor, War Invalids and Social Affairs” in Clause 2, Article 5;

b) To replace the phrase “Clauses 4, 6 and 8 of Article 154″ with the phrase “Clauses 4 and 6 of Article 154″ and the phrase “3 days” with the phrase “3 working days” in Clause 2, Article 8;

c) Replace the phrase “translated into Vietnamese and certified” with the phrase “translated into Vietnamese and notarized or authenticated” at Point e, Clause 3, Article 8;

d) Replace the phrase “translated into Vietnamese and authenticated” with the phrase “translated into Vietnamese and notarized or authenticated” in Clause 10, Article 9 and Clause 4, Article 23;

dd) Replace the phrase “Papers specified in Clauses 3 and 4 of this Article” with the phrase “Papers specified in Clause 3 of this Article” in Clause 5, Article 13;

e) Replace the phrase “translated into Vietnamese” with the phrase “translated into Vietnamese and notarized or authenticated” in Clause 5, Article 13 and Clause 8, Article 17;

g) Replace the phrase “Certified copy of passport” with the phrase “Certified copy of passport or copy of passport certified by the employer” at Point d, Clause 3, Article 8; Clause 7 of Article 9 and Clause 5 of Article 17;

h) Replace the phrase “20. Salary:….VND” with the phrase “20. Average salary / month: …. million VND” in Form No. 11/PLI Appendix I promulgated together with Decree No. 152/2020/ND-CP;

i) Replace the phrase “People’s Committee of the province/city….” with the phrase “Department of Labor, War Invalids and Social Affairs…” in Form No. 03/PLI Appendix I promulgated together with Decree No. 152/2020/ND-CP;

k) Replace the phrase “Director/Chairman of the provincial People’s Committee” with the phrase “Director/Director”, the phrase “At the request in the digital document” to the phrase “At the request and the contents of information provided in the digital document” in Form No. 03/PLI Appendix I promulgated together with Decree No. 152/2020/ND-CP;

l) Replace the phrase “Chairman of the People’s Committee of the province/city…” with the phrase “Department of Labor, War Invalids and Social Affairs….” in Form No. 04/PLI, Form No. 05/PLI, Form No. 06/PLI Annex I promulgated together with Decree No. 152/2020/ND-CP;

m) Replace the phrase “TM. People’s Committee of the province, city …/Chairman” with the phrase “Director” in Form No. 06/PLI Appendix I promulgated together with Decree No. 152/2020/ND-CP.

n) Add the phrase “(Enterprise/organization) please assure that the above information is true. If wrong, (enterprise/organization) please take full responsibility before the law” after Section 24 of Form No. 09/PLI Annex I issued together with Decree No. 152/2020/ND-CP.

o) Add the phrase “Immigration Department (Ministry of Public Security)” in the section “Recipient” Form No. 13/PLI Appendix I promulgated together with Decree No. 152/2020/ND-CP.

14. The following points and clauses are repealed:

a/ To annul Clause 4, Article 13;

b/ To annul Points c, d and dd, Clause 5 and g, Clause 6, Article 30;

c/ Abolition of Point a, Clause 6a, Article 30 of the Government’s amended Decree No. 152/2020/ND-CP dated December 30, 2020 regulating foreign workers working in Vietnam and recruiting and managing Vietnamese workers working for foreign organizations and individuals in Vietnam, supplemented in the Government’s Decree No. 35/2022/ND-CP dated May 28, 5, 2022 regulating the management of industrial parks and economic zones.

Article 2. Abolition of a number of provisions of the Government’s Decree No. 35/2022/ND-CP dated May 28, 5, 2022 regulating the management of industrial parks and economic zones

1. To annul the opening paragraph “Issuance, re-issuance, extension and revocation of work permits and certification of foreign workers not eligible for work permits for foreigners working in industrial parks or economic zones” and the phrase “receipt of reports on the employment of foreign workers” at Point dd, Clause 2, Article 68.

2. To abolish the paragraph “receiving explanatory reports of enterprises in industrial parks or economic zones on the demand for employing foreigners for each job position that Vietnamese have not yet met” at Point c, Clause 3, Article 68.

Article 3. Enforcement Terms

1. This Decree takes effect from September 18, 2023.

2. Transitional Terms:

For the report explaining the need to employ foreign workers, the dossier of request for confirmation is not eligible for work permit issuance; granting, re-issuing and extending work permits submitted by foreign employers to the Ministry of Labor, War Invalids and Social Affairs, provincial-level People’s Committees, Departments of Labor, War Invalids and Social Affairs, Management Boards of industrial parks, economic zones and hi-tech parks before the effective date of this Decree, shall apply according to the provisions of Decree No. 152/2020/ND-CP dated December 30, 12 of the Government regulating foreign workers working in Vietnam and recruiting and managing Vietnamese workers working for foreign organizations and individuals in Vietnam and Decree No. 35/2022/ND-CP dated May 28, 5 of the Government regulating the management of industrial parks and economic zones.

Foreign workers currently working in Vietnam come from 110 countries and territories. The majority of foreign workers are from China, South Korea and Japan,… and concentrate in big cities or large industrial zones such as Hanoi, Ho Chi Minh City, Bac Giang, Long An, Binh Duong,… According to the survey of the MOLISA, many foreign workers need to return Vietnam to work in the situation of the complicated Covid-19 pandemic, and many enterprises in Vietnam are lacking a lot of positions such as managers, experts, etc.

On 9 September 2021, the Vietnamese Government issued Resolution No. 105/NQ-CP (“Resolution 105”) on supporting enterprises, co-operatives and business households in the context of the Covid-19 pandemic.

As part of the Resolution 105, some notable solutions are proposed relating to labour and foreign experts, specifically Easing regulations on the issuance, extension and certification of work permits for foreign labour in Vietnam

The MOLISA are asked, within September 2021, to instruct provincial competent authorities to implement flexibly and relax some conditions on the issuance, extension and certification of work permits for foreign labour in Vietnam, namely:

1. The provisions within Point a, Clause 3, Article 3 of Decree 152/2020/ND-CP shall be implemented as follows: Having a university degree or above or an equivalent and having at least 3 years of work experience relevant to the position that the foreign worker is expected to undertake in Vietnam.

==> In this regard, to loosen the conditions for a foreign expert, the degree is not connected to the job position that the foreign labour will undertake in Vietnam

2. The provisions within Point a, Clause 6, Article 3 of Decree 152/2020/ND-CP shall be implemented as follows: Having been trained in a technical or other specialized discipline for at least 1 year and having at least 3 years of work experience relevant to the position that the foreign worker is expected to undertake in Vietnam.

==> As such, the training field does not have to relate to the role or relevant experience.

3. The provisions within Point b, Clause 4, Article 9 of Decree 152/2020/ND-CP shall be implemented as follows: Documents affirming experts and technical workers as prescribed in Clauses 3 and 6, Article 3 of this Decree are: Diploma, certificate, confirmation letter; a written certification from an agency, organization or enterprise in a foreign country about the number of years of experience of the expert, technical worker, or a previously issued work permit to prove the experience.

==> Therefore, previous issued work permits are now accepted as documentation affirming the experience of an expert or technical worker.

4. The provisions within Point d, Clause 3, Article 8; Clause 7, Article 9; Clause 5, Article 17 of Decree 152/2020/ND-CP shall be implemented as follows: a pure copy of the valid passport

==> It replaces the requirement of submitting the certified copy by a pure copy of the passport when lodging the Work Permit application.

5. Also Resolution 105 allows foreign workers who have been granted work permits that are still valid to be sent, dispatched or seconded to work in another province or city for a period not exceeding six months without having to re-apply for a work permit. The employer must report to the labor management agency where the foreign workers have come to work.

Resolution 105 is effective from 9 September 2021.

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.

Source: KPMG & Laodong.vn

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.

1. Foreign workers being reassigned in the company

2. Volunteers

3. Specialists

4. Managers and chief executive officers

5. Technicians

And the Teaching position is listed on “Specialists” group.

According to Decree no. 11/2016/QĐ-CP, an expert means a foreign worker who:

a) Has a document certifying that he/she is an expert of an overseas agency, organization or enterprise; or

b) Has a bachelor’s degree or equivalent and certificate provided that he/she has worked at least 03 years in his/her training field in corresponding with the job position that he/she shall be appointed in Vietnam.

However, for case of teaching in foreign language centers, kindergartens and compulsory education establishments, there are two more official letters signed by Deputy Prime Minister – Vu Duc Dam on April 12th, 2014 and August 19th, 2016.

Under Official letter No. 619/TTG-KGVX dated April 12th, 2016, the Prime Minister has agreed on the grant of work permit to foreigners who possess a college diploma or higher degree and undergo the training profession which is suitable for teaching requirements at foreign language training facilities (foreign language centers), preschool education institutions.

Accordingly, the foreigners who apply for the work permit to teach at foreign language centers, preschool education institutions are required to have college diploma or higher degree and have training profession suitable for teaching requirements instead of having to meet the conditions on having university degree or the equivalent and having at least 03 years of working experience under point b Clause 3 Article 3 of Decree No. 11/2016/ND-CP.

Under Official letter No. 1493/TTG-KGVX dated August 19th, 2016, the Prime Minister has agreed on the case of granting work permit to foreign teacher who possesses at least a pedagogy Bachelor’s degree or the equivalent (possessing a Bachelor’s degree and a pedagogy certificate or possessing a teaching certificate in the compulsory education) to teach at compulsory education establishments.

At present, procedures for Vietnam Work Permit for teaching position are easier which will help you to obtain a work permit in order to legally work in Vietnam.

So if you have any question and need our support, please don’t hesitate to contact Vietnam-legal.com.

GLOBAL CONSULTING SERVICES COMPANY

Address: 2th Floor, no 95 Cau Giay street, Cau Giay district, Hanoi, Vietnam

Tel: (+84) 4 35626100

Hotline: (+84) 988297732

Email: support@vietnam-legal.com

Website: Vietnam-legal.com

+ Are foreign labors eligible to apply for Vietnam Work Permit?

+ Are their documents issued in foreign countries suitable for their job position and legal to use in Vietnam?

+ Who are exempted from Vietnam Work Permit?

+ How to apply for Vietnam Work Permit or Work Permit Exemption Certificate?

Please feel free to contact Vietnam-legal.com for your specific support:

1. Evaluating documents to make sure that they are eligible to get Work Permit suitable with each position

2. Checking documents if they are legal and eligible to use in Vietnam

3. Giving procedure to get consular legalization for all documents issued in foreign countries

4. Consulting for cases of Work Permit Exemption and procedure to obtain Work Permit Exemption

5. Supporting and consulting for cases of Expired Work Permit

Vietnam-legal.com is ready to consult and support all nationals working in Hanoi, Hai Phong, Hai Duong, Hung Yen, Vinh Phuc, Thai Nguyen, Ho Chi Minh city, Vung Tau, etc.

If you need more information and assistance, please kindly contact Vietnam-legal.com.

GLOBAL CONSULTING SERVICES COMPANY

Address: 2th Floor, no 95 Cau Giay street, Cau Giay district, Hanoi, Vietnam

Tel: (+84) 4 35626100

Hotline: (+84) 988297732

Email: support@vietnam-legal.com

Website: Vietnam-legal.com

Contact us ]]> https://www.vietnam-legal.com/en/work-in-vietnam/work-permit-consulting-for-foreign-labors-in-vietnam/feed/ 0 https://www.vietnam-legal.com/en/work-in-vietnam/8-notable-changes-on-vietnam-work-permit-valid-from-tomorrow-april-1st-2016/ https://www.vietnam-legal.com/en/work-in-vietnam/8-notable-changes-on-vietnam-work-permit-valid-from-tomorrow-april-1st-2016/#comments Thu, 31 Mar 2016 08:06:48 +0000 http://www.vietnam-legal.com/?p=8193
Read More]]> JUST 1 DAY LEFT, Decree No. 11/2016/ND-CP detailing regulations on implementing a number of articles of the Labor Code regarding foreign workers in Vietnam will officially come into effect from Tomorrow – April 01,2016. There are 8 notable changes (compare to Decree 102/2013/ND-CP) which you need to pay attention to:

1. Definition of Job Position for foreign workers:
+ Manager position: Manager of an enterprise means a manager of a company or a manager of a private enterprise, comprising the owner of a private enterprise, an unlimited liability partner, the chairman of a members’ council, a member of a members’ council, the chairman of a company, the chairman of a board of management, a member of a board of management, a director or general director, and an individual holding another managerial position, who is authorized to enter into transactions of the company in the name of the company as stipulated in the charter of the company
+ Expert/ Specialist: Foreign employees are deemed as specialists when they satisfy one of the following requirements:

• When the said employee is in possession of a written document that verifies their position as a specialist of an office, organisation or enterprise overseas.
• When the said employee has a minimum of a university degree or a certificate of equivalent value, and no less than three years’ experience working in a specialised field appropriate to his or her expected position in Viet Nam. Other special cases shall be examined and decided by the Prime Minister.

2. Foreigners exempted from work permit is extended to: Experts, individuals holding management positions, or technicians working in Vietnam less than 30 days per period and the total accumulated working days in Vietnam is less than 90 days per year.
3. If a foreigner has been residing in Vietnam, ONLY criminal record issued in Vietnam is required for work permit application purposes.

4. Special cases on Vietnam Work Permit Re-issuance

• Foreign labors holding valid Vietnam Work Permit can do the same job position for another company and apply for Work Permit Re-issuance.
• Foreign labors holding valid Work Permit change their job position in company also can apply for Work Permit Re-issuance.
• Foreign labors holding a nearly expired Vietnam Work Permit still do the same job position registered in Work Permit can apply for Work Permit Re-issuance in case they have confirmation letter on having Work Permit revoked.

5. Work Permit Application must be submitted at least 15 days before working, compared to the current 7 days.
6. Work permit renewal application can be submitted within 45 days before the expiry date of the work permit, instead of 15 days.
7. Processing time for the issuance of work permit is shortened from 10 to 7 working days from the submission date of the work permit application.
8. The processing time for re-issuance of the work permit is reduced from 5 to 3 working days.

THE GOVERNMENT
——-

Ha Noi, February 03, 2016

DECREE

GUIDING SOME ARTICLES OF THE LABOR CODE ON FOREIGN WORKERS IN VIET NAM

Pursuant to the Law on Organization of the Government dated June 19, 2015;

Pursuant to the Labor Code dated June 18, 2012;

At the proposal of the Minister of Labor – Invalids and Social Affairs;

The Government promulgates Decree guiding some articles of the Labor Code on foreign workers in Viet Nam.

Chapter I

GENERAL PROVISIONS

Article 1. Scope of application

This Decree governs the implementation of the Labor Code on issuance of work permits to foreign workers in Viet Nam and expulsion of foreign workers in Viet Nam without work permits.

Article 2. Applicable entities

1. Foreigners working in Viet Nam (hereinafter referred to as foreign workers) in one of the forms below:

a) Working under labor contracts;

b) Being transfer within an enterprise;

c) Performance of any of the following types of contract, namely economic, commercial, financial, banking, insurance, scientific and technical, cultural, sports, educational, vocational training or medical health contracts;

d) Providing services under contract;

dd) Offering services;

e) Working for a foreign non-Governmental organization which is permitted to operate pursuant to the law of Viet Nam;

g) Volunteers;

h) Foreigners responsible for establishing commercial presence;

i) Managers, executive directors, experts and technical workers;

k) Foreigners participating in a tender contract or project in Viet Nam.

2. Employers using foreign employees comprise:

a) Enterprises operating pursuant to the Law on Enterprises and the Law on Investment or international treaties to which the Socialist Republic of Viet Nam is a signatory;

b) Foreign or domestic contractors participating in tendering, carrying out a contract in Viet Nam;

c) Representative offices and branches of an enterprise, agency or organization permitted to be established by the competent authority;

d) State agencies, political, socio-political, socio-occupational-political, social and socio-occupational organizations;

dd) Foreign non-governmental organizations and international organizations in Viet Nam;

e) State professional units established pursuant to the law;

g) Foreign project offices or offices of international organizations in Viet Nam;

h) Operating offices of a foreign investor pursuant to business cooperation contracts or foreign contractors permitted for registration pursuant to the law;

i) Organizations practising law in Viet Nam in accordance with the law;

k) Cooperatives and co-operative groups established and operating pursuant to the Law on Cooperatives;

l) Associations and business associations established in accordance with the law;

m) Business households and individuals permitted to do business in accordance with the law.

Article 3. Foreign workers who are internally transferring within an enterprise, volunteers,managers, executive directors, experts and technical workers

1. Foreign workers internally transferring within an enterprise as managers, executive directors, experts and technical workers of a foreign enterprise which has already established a commercial presence within the territory of Viet Nam, temporarily move within the enterprise to the representative office within the territory of Viet Nam and have been employed for at least 12 months prior to such transfer by the foreign enterprise.

2. Foreign volunteers in Viet Nam in voluntary and unpaid forms pursuant to international treaties to which the Socialist Republic of Viet Nam is a singatory.

3. Foreign experts in one of the following cases:

a) Having a written document proving him/her as an expert of a foreign agency, organization or enterprise;

b) Having a college degree or equivalent or higher qualifications and have at least 03 year-working experience in the field consistent with the position that the foreign workers are expected to work in Viet Nam; special cases shall be considered and decided by the Prime Minister.

4. Foreign managers and executive directors in one of the following cases:

a) Managers of an enterprise as stipulated in Clause 18 of Article 4 of the Law on Enterprises or heads and deputy heads of an agency or a organization;

b) Chief Executive Officers who lead and directly operate subsidiary units under agencies, organizations and enterprises.

5. Technical workers who had received technical or other specialized training for least 01 year and worked at least 03 years in the sector of specialized training.

Chapter II

ISSUANCE OF WORK PERMITS, RE-ISSUANCE OF WORK PERMITS, EXPULSION OF FOREIGN WORKERS WITHOUT WORK PERMITS

Section 1

IDENTIFICATION OF WORK ALLOWED TO EMPLOY FOREIGN WORKERS

Article 4. Use of foreign workers

1. Identify the demand for foreign workers

a) The employer (excluding contractors) is responsible for identifying the demand to use foreign workers for each job position that Vietnamese workers could not meet its requirements and report to Chairman of provincial-level People’s Committee (hereinafter referred to as the provincial People’s Committee) where the foreign worker is expected to work. During the employment period, should there is a change in the demand to use foreign workers, the employer must report to Chairman of provincial People’s Committee.

b) For foreign workers specified in Clause 4, 5 and 8 of Article 172 of the Labor Code and Point e and Point h, Clause 2 of Article 7 of this Decree, the employer shall not have to identify the demand for foreign workers.

2. Chairman of provincial People’s Committee shall issue written approval to the employer on the use of foreign workers for each job position.

Article 5. Use of foreign workers by contractors

1. Before hiring foreign workers, a contractor must declare the number, qualifications, professional competence and experience of foreign workers to be mobilized to implement a contract in Viet Nam and send a request to recruit Vietnamese workers into job positions expected to recruit foreign workers (attached with confirmation of the investor) to Chairman of the provincial People’s Committee where the contractor implements the contract.

Where the contractor needs to adjust and supplement the declared number of employees, the investor must confirm the adjustment plan, additional labor demand by the foreign contractor.

2. Chairman of the provincial People’s Committee shall direct local agencies and organizations to introduce and supply Vietnamese workers for the contractor. Within 02 months from the date of receipt of a request to recruit at least 500 Vietnamese employees and 01 month from the date of receipt of a request to recruit less than 500 Vietnamese employees, if it is impossible to introduce or supply Vietnamese workers to the contractor, Chairman of the provincial People’s Committee shall consider and decide to allow the contractor to recruit foreign workers to work at placements that it could not recruit Vietnamese employees.

3. The investor is responsible for supervising and requiring the contractor to comply with the declared content of the use of Vietnamese and foreign workers; guiding, supervising and inspecting the contractor to comply with regulations on recruitment and use of foreign employees working for contractors in accordance with the law; monitoring and managing foreign workers in accordance with regulations of Viet Nam; providing quarter reports to the provincial Department of Labor – Invalids and Social Affairs on the recruitment, use, and management of foreign workers by contractors under the regulations of the Ministry of Labor – Invalids and Social Affairs.

4. Quarterly, the provincial Department of Labor – Invalids and Social Affairs in collaboration with the police departments and relevant agencies shall inspect the compliance of regulations of Viet Nam on foreign employees working for contractors in the province.

Article 6. Report on the use of foreign workers

1. Annually or upon request, the provincial People’s Committees shall be responsible for reporting to the Ministry of Labor – Invalids and Social Affairs on the demand for foreign workers, accepted demand for foreign workers and management of foreign workers working in the province.

2. Quarterly, bi-annually and annually, Departments of Labor – Invalids and Social Affairs shall be responsible for reporting on foreign workers working in the province under guidelines of the Ministry of Labor – Invalids and Social Affairs.

Section 2.

FOREIGN WORKERS EXEMPT FROM WORK PERMITS

Article 7. Cases of foreign workers exempt from work permits

1. Foreign workers specified in Clauses 1, 2, 3, 4, 5, 6, 7 and 8 of Article 172 of the Labor Code.

2. Other cases of foreign workers exempt from work permits, including:

a) Foreign workers who are internally transferred within an enterprise operating in the 11 service sectors in the list of Viet Nam’s commitments on services to the World Trade Organization, including: business, communication, construction, distribution, education , environment, finance, healthcare, tourism, cultural entertainment and transport;

b) Foreign workers entering Viet Nam to provide advisory services and technical expertise or perform other tasks serving research, construction, appraisal, monitoring and evaluation, management and implementation of programs/projects funded with official development assistance (ODA) as specified and agreed in international agreements on ODA between competent authorities of Viet Nam and other countries;

c) Foreign workers who are issued with a license for the practice of journalism in Viet Nam by the Ministry of Foreign Affairs in accordance with the law;

d) Foreign workers who are teachers of foreign organizations that are sent to Viet Nam by such organizations to teach and research in international schools under the management of foreign diplomatic missions or international organizations in Viet Nam or permitted by the Ministry of Education and Training to teach and research in Viet Nam’s education and training  institutions;

dd) Volunteers certified by foreign diplomatic missions or international organizations in Viet Nam;

e) Foreign workers coming to Viet Nam to work as experts, managers, executive directors or technical employees with a period of less than 30 days and no more than 90 cumulative days in 01 years;

g) Foreign workers entering Viet Nam to implement international agreements to which central and local state agencies are signatories  as prescribed by the law;

h) Students studying in foreign schools and institutions having agreements on internship in agencies, organizations and enterprises in Viet Nam;

i) Family members of diplomatic agents of foreign diplomatic missions in Viet Nam permitted for working by the Ministry of Foreign Affairs, except where international treaties to which the Socialist Republic of Viet Nam is a signatory that contains provisions different from this;

k) Foreign workers who have official passports to work for state agencies, social organizations and socio-political organizations;

l) Other cases decided by the Prime Minister at the proposal of the Ministry of Labor – Invalids and Social Affairs.

Article 8. Confirmation of foreign workers exempt from work permits

1. Departments of Labor – Invalids and Social Affairs shall be authorized to certify foreign workers exempt from work permits.

2. The employer can request the Department of Labor – Invalids and Social Affairs, where the foreign worker is expected to work, to certify that the foreign worker is exempt from work permit at least 07 working days before the date the employee starts working, except for cases provided in Clause 4 and Clause 5 of Article 172 of the Labor Code and Point e, Clause 2 of Article 7 of this Decree.

The validity period  of work permit exemption shall not exceed 02 years and equal to the duration of one of the cases provided in Article 11 of this Decree.

3. Application file for exemption from work permits, including:

a) Request for exemption from work permits;

b) Profile of the foreign worker comprising full name, age, gender, nationality, passport number, start date and end date of employment, job placement of the foreign worker;

c) Proof of eligibility for work permit exemption;

d) Proof of eligibility for work permit exemption include 01 photocopy to be collated with the original or 01 certified copy. Foreign documents are exempt from consularization, but must be translated into Vietnamese and certified in accordance with regulations of Viet Nam.

4. Within 03 working days from the date of receipt of a full application for work permit exemption, the Department of Labor – Invalids and Social Affairs shall send a written confirmation of work permit exemption to the employer. In case work permit exemption is not granted, a document clearly stating the reasons must be issued.

Section 3

ISSUANCE OF WORK PERMITS

Article 9 Conditions for issuance of a work permit

1. There is capacity for civil acts fully in accordance with the law.

2. There is health fit with the job requirements.

3. Being a manager, executive director, expert or technician.

4. Not offenders or being prosecuted for criminal liability in accordance with the law of Viet Nam and foreign law.

5. Being approved in writing by the competent State agencies on the use of foreign workers.

Article 10. Application file for issuance of a work permit

1. Request for issuance of a work permit from the employer in accordance with regulations of the Ministry of Labor – Invalids and Social Affairs.

2. Health certificate or medical certificate issued by a competent foreign or Vietnamese health care agency or organization valid for 12 months from the date of signing to the application date.

3. Judicial record or written document confirming the foreign worker is not an offender or being prosecuted for criminal liability issued by the foreign country. If the foreign worker resides in Viet Nam, only judicial record issued Viet Nam is required.

The judicial record or written document confirming the foreign worker is not an offender or being prosecuted for criminal liability must be issued within 06 months from the issuance date to the application date.

4. Proof showing he/she as a manager, executive, expert or technician

For some occupations and jobs, proof of professional qualifications and skills of foreign workers shall be replaced by one of the following documents:

a) Certificate of recognition for artisan traditional crafts by the competent authorities of foreign countries;

b) Proof of experience of foreign football players;

c) Aircraft pilot license by the competent authorities of Viet Nam for foreign pilots;

d) Aircraft maintenance license by the competent authorities of Viet Nam for foreign workers working as aircraft maintenance.

5. 02 color photos (size 4cm x 6cm, white background, front, bareheaded, without sunglasses), taken within 06 months prior to the application date.

6. A certified copy of passport or valid papers or international travel documents in accordance with the law.

7. Documents relating to the foreign worker

a) Foreign worker stipulated under Point b, Clause 1 of Article 2 of this Decree must provide an appointment letter of the foreign enterprise assigning the foreign worker to work in the commercial presence of the foreign enterprise within the territory Viet Nam and proof of employment for the enterprise for at least 12 months prior to working in Viet Nam;

b) Foreign worker stipulated under Point c, Clause 1 of Article 2 of this Decree must provide a contract or agreement between Vietnamese and foreign partners, which must include an agreement on the foreign worker working in Viet Nam;

c) Foreign worker stipulated under Point d, Clause 1 of Article 2 of this Decree must provide a service contract between Vietnamese and foreign partners and proof of employment for the foreign enterprise which does not have a commercial presence in Viet Nam for least 02 years;

d) Foreign worker stipulated under Point dd, Clause 1 of Article 2 of this Decree must provide an appointment letter of the service provider assigning the foreign worker to come to Viet Nam to negotiate on service provision;

dd) Foreign worker stipulated under Point e, Clause 1 of Article 2 of this Decree must provide a certificate of the foreign non-governmental organization and international organization permitted to operate in accordance with Viet Nam law;

e) Foreign worker stipulated under Point h, Clause 1 of Article 2 of this Decree must provide a written appointment letter of the service provider assigning the foreign worker in Viet Nam to establish a commercial presence of the service provider;

g) Foreign worker stipulated under Point i, Clause 1 of Article 2 of this Decree engaging in activities of the foreign enterprise, which have established a commercial presence in Viet Nam, must provide proof that the foreign worker has engaged in activities of the foreign enterprise.

8. Application file for issuance of work permits for some special cases

a) For foreign workers who have been issued with a work permit which is still valid and work for another employer in the same position stated in the work permit as prescribed by law, application file for a work permit shall include documents specified in Clauses 1, 5, 6 and 7 of this Article and the issued work permit or certified copy of the work permit;

b) For foreign workers who have been issued with a work permit which is still valid and work in a position different from the job title stated in the work permit as prescribed by law, but do not change the employer, application file for a work permit shall include documents specified in Clauses 1, 4, 5, 6 and 7 of this Article and the issued work permit or certified copy of the work permit;

c) For foreign workers who have been issued with a work permit which has expired as prescribed under Article 174 of the Labor Code having demand to continue to work at the same position stated in the work permit as stipulated by law, application file for issuance of a work permit shall include documents specified in Clauses 1, 2, 3, 5, 6 and 7 of this Article and proof of work permit revocation;

d) In case foreign workers prescribed under Points a, b and c of this Clause have been issued with a work permit as stipulated under Decree No. 102/2013/ND-CP dated September 5, 2013 of the Government detailing the implementation of some articles of the Labor Code on foreign workers in Viet Nam, they must provide proof to meet the requirements stipulated in Clause 3 or 4 or 5 of Article 3 of this Decree.

9. Consularization and notarization of documents

a) The documents specified in Clauses 2, 3 and 4 of this Article must be 01 photocopy to be collated with the original or 01 certified copy.

Foreign documents must be consularized, unless they are exempt from consularization in accordance with international treaties to which the Socialist Republic of Viet Nam and the related foreign country are members or reciprocity principle in accordance with the law. These documents must be translated into Vietnamese and certified in accordance with regulations of Viet Nam.

b) The documents specified in Clause 7 of this Article must be 01 photocopy to be collated with the original or 01 certified copy. Foreign documents are exempt from consularization, but must be translated into Vietnamese and certified in accordance with regulations of Viet Nam.

Article 11. Validity period of a work permit

The validity period of a work permit is equal to the duration of one of the following cases as far as those periods are less than 02 years:

1. Duration of the labor contract to be signed;

2. Duration of assignment in Viet Nam decided by foreign parties;

3. Duration of the contract or agreement between Vietnamese and foreign partners;

4. Duration of the service contract or agreement between Vietnamese and foreign partners;

5. Duration specified in documents of the service provider appointing the foreign worker to come to Viet Nam to negotiate on service provision;

6. Duration specified in certificates of foreign non-governmental organizations and international organizations permitted to operate in accordance with the law of Viet Nam;

7. Duration specified in documents of the service provider appointing the foreign worker to come to Viet Nam to establish a commercial presence of the service provider;

8. Duration specified in documents proving that the foreign worker is permitted to engage in activities of the foreign enterprise which has established a commercial presence in Viet Nam.

Article 12. Procedure for issuance of a work permit

1. At least 15 working days before the date the foreign worker is expected to begin working for the employer, the employer must file an application for issuance of a work permit to the Department Labor – Invalids and Social Affairs where the foreign worker is expected to work.

2. Within 07 working days from the date of receipt of an application for issuance of a work permit, the Department of Labor – Invalids and Social Affairs must issue a work permit for the foreign worker using forms the prescribed by the Ministry of Labor – Invalids and Social Affairs. In case a work permit is not granted, it must issue a written reply clearly stating the reason.

3. For foreign workers stipulated in Point a, Clause 1 of Article 2 of this Decree, after issuance of a work permit, the employer and the foreign worker must sign a written labor contract in accordance with the labor law of Viet Nam before the expected date he or she starts working for the employer.

Within 05 working days from the date of signing the labor contract, the employer must send a copy of the signed labor contract to the Department of Labor – Invalids and Social Affairs which has issued the work permit.

Section 4.

REISSUANCE OF OF WORK PERMITS

Article 13. Cases eligible for reissuance of work permits

1. Work permit within validity period is lost, damaged or content of the work permit was changed, except for cases stipulated under Clause 8 of Article 10 of this Decree.

2. Work permit valid for at least 05 days but not more than 45 days.

Article 14. Application file for reissuance of a work permit

1. Request for re-issuance of a work permit from the employer in accordance with regulations of the Ministry of Labor – Invalids and Social Affairs.

2. 02 color photos (size 4cm x 6cm, white background, front, bareheaded, without sunglasses), taken within 06 months prior to the application date.

3. The work permit issued previously in cases where:

a) The work permit is lost as stipulated under Clause 1 of Article 13 of this Decree, confirmation by the commune-level police department of Viet Nam or foreign competent authority in accordance with the law shall be required;

b) Content in the work permit is changed as stipulated under Clause 1 of Article 13 of this Decree, evidence shall be required;

c) The work permit is valid for at least 05 days but not more than 45 days as stipulated under Clause 2 of Article 13 of this Decree, it requires a health certificate or medical examination certificate as stipulated under Clause 2 of Article 10 of this Decree and one of the documents specified in Clause 7 of Article 10 of this Decree;

d) The work permit has been issued for the foreign worker pursuant to Decree No. 102/2013/ND-CP dated September 5, 2013 of the Government detailing the implementation of some articles of the Labor Code on foreign workers in Viet Nam, evidence to prove eligibility for requirements stipulated in Clause 3 or 4 or 5 of Article 3 of this Decree shall be required.

4. Documents as stipulated under Clause 3 of this Article include 01 photocopy to be collated with the original or 01 certified copy. Foreign documents are exempt from consularization, but must be translated into Vietnamese and certified in accordance with the law of Viet Nam.

Article 15. Procedure for reissuance of a work permit

1. Where the work permit is reissued as stipulated under Clause 2 of Article 13 of this Decree, within at least 05 days but not more than 45 days before the work permit expires, the employer must file an application for reissuance of a work permit to the Department of Labor – Invalids and Social Affairs which has issued the work permit.

2. Within 03 working days from the date of receipt of an application for reissuance of a work permit, the Department of Labor – Invalids and Social Affairs shall reissue a work permit. In case of refusal for reissuance of a work permit, a written reply clearly stating the reasons shall be issued.

3. For foreign workers stipulated under Point a Clause 1 of Article 2 of this Decree, after reissuance of the work permit, the employer and the foreign worker must sign a written labor contract in accordance with labor law of Viet Nam prior to the expected working date for the employer.

Within 05 working days from the date of signing the labor contract, the employer must send a signed copy of the labor contract to the Department of Labor – Invalids and Social Affairs which has issued the work permit.

Article 16. Validity period of a reissued work permit

1. The validity period of a work permit reissued under Clause 1 of Article 13 of this Decree is equal to the duration of the first issued work permit minus the period of time the foreign worker has worked up to the date the application for  reissuance of the work permit is submitted.

2. The validity period of a work permit reissued under Clause 2 of Article 13 of this Decree is equal to the duration of one of the cases provided for in Article 11 of this Decree as far as those periods are less than 02 years.

Section 5

REVOCATION OF WORK PERMITS

EXPULSION OF FOREIGN WORKERS

Article 17. Revocation of a work permit

1. Work permits lapse under Clauses 1, 2, 3, 4, 5, 7 and 8 of Article 174 of the Labor Code.

2. Work permits revoked because the employer or the foreign worker does not comply with this Decree.

3. Procedure for revocation of a work permit

a) For cases provided in Clause 1 of this Article, the employer shall revoke the work permit of the foreign worker to return to the Department of Labor – Invalids and Social Affairs which has issued the work permit;

b) For cases provided in Clause 2 of this Article, the Director of the Department of Labor – Invalids and Social Affairs which has issued the work permit shall issue a revocation decision and notify the employer to revoke the work permit of the foreign worker and return to the Department of Labor – Invalids and Social Affairs;

c) The Department of Labor – Invalids and Social Affairs shall issue a written document confirming revocation of work permit to the employer.

4. The Ministry of Labor – Invalids and Social Affairs shall detail procedures for revocation of work permits.

Article 18. Expulsion of foreign workers

1. Foreign workers in Viet Nam without a work permit or written document confirming exemption from work permit as stipulated under this Decree (hereinafter abbreviated as foreign workers in Viet Nam without work permits) shall be deported under the Viet Nam law.

2. Departments of Labor – Invalids and Social Affairs shall send police departments request for expulsion for cases of foreign workers in Viet Nam without work permits.

Where an organization and individual detect a foreigner working in Viet Nam without a work permit, it must notify the Department of Labor – Invalids and Social Affairs, where he/she works.

3. Within 15 working days from the date confirming the foreigner working in Viet Nam without a work permit, the Department of Labor – Invalids and Social Affairs shall request the police department to deport that foreign worker.

Chapter III

TERMS OF ENFORCEMENT

Article 19. Effectiveness

1. This Decree shall take effect as from April 1, 2016.

2. Decree No. 102/2013 / ND-CP dated September 5, 2013 of the Government detailing the implementation of some articles of the Labor Code of foreign workers in Viet Nam; Point a Section 4 of Resolution No. 47/NQ-CP dated July 8, 2014 of the Government are repealed from the date this Decree comes into full force and effect.

3. Transitional provisions

a) Regarding paperwork including written approval of the use of foreign workers, written documents confirming exemption from work permits and work permits which have been issued pursuant to Decree No. 102/2013/ND-CP dated September 5, 2013 of the Government detailing the implementation of some articles of the Labor Code on foreign workers in Viet Nam, shall be valid until their expiration dates.

b) Where employers have submitted reports explaining the demand for foreign workers; application file for issuance and re-issuance of work permits or written documents confirming exemption from work permits granted prior to the date this Decree takes effect shall comply with Decree No. 102/2013/ND-CP dated September 5, 2013 of the Government detailing the implementation of some articles of the Labor Code on foreign workers in Viet Nam.

Article 20. Responsibility for implementation

1. Ministry of Labor – Invalids and Social Affairs shall:

a) Provide guidelines for implementation of this Decree;

b) Approve the request for use of foreign workers; confirm cases exempt from work permits; issue and reissue work permits; revoke work permits; confirm revocation of work permits and request police departments to deport foreign workers in Viet Nam without work permits for foreigners working for employers stipulated under Sub-clauses d, dd, e, g and l, Clause 2 of Article 2 of this Decree;

c) Direct, supervise, inspect and examine the implementation of the law on foreign workers in Viet Nam.

2. The Ministry of Public Security shall be responsible for:

a) Guiding the authority and procedures on deportation of foreign workers in Viet Nam without work permits;

b) Guiding the issuance of visas to foreign workers related to the issuance and re-issuance of work permits; confirm cases exempt from work permits;

c) Provide quarter information on foreign workers getting visas to work for agencies, organizations and enterprises to the Ministry of Labor – Invalids and Social Affairs.

3. The Ministry of Finance shall be responsible for providing guidelines on fees for issuance and reissuance of work permits, confirmation of work permit exemption for the cases stipulated under Point b, Clause 1 of this Article.

4. The Ministry of Industry and Trade shall be responsible for providing guidelines on principles and procedures to determine foreign workers transferring within an enterprise operating in 11 service sectors in the list of service sectors committed by Viet Nam with the World Trade Organization.

5. Ministers, heads of ministerial-level agencies, heads of government agencies, Chairmen of provincial-level People’s Committees shall be responsible for the implementation of this Decree. /.

On behalf of the Government
Prime Minister

        (Signed)

    NGUYEN TAN DUNG

I. Definitions of specialist, manager, and chief executive officer are clearly specified:

Apart from the current definitions regarding job positions, Decree 11/2016/ND-CP (Decree 11) has supplemented additional definitions for other positions held by foreign employees.

Foreign employees are deemed as specialists when they satisfy one of the following requirements:

+    When said employee is in possession of a written document that verifies their position as a specialist of an office, organization or enterprise overseas.

+    When said employee has a minimum of a university degree or a certificate of equivalent value, and no less than 3 years experience working in a specialized field appropriate to his or her expected position in Viet Nam; other special cases shall be examined and decided by the Prime Minister.

In the event where foreign nationals are considered managers or chief executive officers:

+    A manager is the person who administrates an enterprise as prescribed in Clause 18 Article 4 of Enterprise Law, is the head or deputy head of an office or organization;

+    A chief executive officer is the leader who directly manages subordinate units of an office, organization or enterprise.

II. Cases not subject to work permit are supplemented

Aside from cases stated in the previous regulations, as stated at Point e Clause 2 Article 7 of Decree 11, foreign nationals working in Viet Nam as specialists, managers, chief executive officers or technical workers for less than 30 days and the cumulative period does not exceed 90 days within 01 year are not required to apply for a work permit.

Regarding cases not subject to work permit granting, foreign nationals still need a confirmation issued by the Labor, War invalids and Social Affairs Department. The duration of said confirmation shall not exceed 02 years and complies with the term of certain situations. (Previous regulations did not include specific time limit)

III. Regulations concerning work permit applications are more clearly defined

According to Decree 11, health certificates must be valid for 12 months commencing from the date of signing health conclusion, and are still in full effect at the time of submitting work permit application.

Furthermore, in Article 10 of Decree 11, it is mandatory to include a criminal record or a written confirmation stating that the foreign national is not a criminal or under criminal liability in work permit applications. Foreign employees who reside in Viet Nam shall need only the criminal record issued by Viet Nam authority. Said documents are issued for no longer than 6 months from the issue date to the submission date.

Moreover, while it is compulsory to have documents proving that the foreigner is a manager, chief executive officer, specialist or technical worker, the Decree has yet to include any specific regulation regarding exactly what those documents are. Such generic information shall cause difficulties for Vietnamese enterprises and foreigners when fulfilling their obligations to the Labor, War Invalids and Social Affairs Department. According to previous provisions, only a written confirmation is required.

IV. Work permit application in special cases

Compared to former provisions, Decree 11 has supplemented Clause 8 Article 10 detailing dossiers in special cases as follows:

+    Working for another employer at the same position stated in the work permit while the permit is still valid;

+    Working for the same employer at a position different from what is stated in the work permit while the permit is still valid;

+    Having been granted a work permit that now expires as provided for in Article 174 of Labor Law and wishing to continue working at the same position stated in the work permit;

+    Having been granted a work permit following the above mentioned cases based on the provisions of Decree No. 102/2013/ND-CP.

V. Cases of work permit reissuance

In Article 13 of Decree 11, Work permits with at least 5 days of validity but no more than 45 days shall be re-granted (the previous regulation does not regulates this case).

For any information related to procedures for issuance, re-issuance of the work permit; Work Permit Exemption Certificate according to the new Decree coming into effect from April 1, 2016, please feel free to contact Vietnam-legal.com.

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