Work permit is issued for foreigners who enter into Vietnam to work in Vietnamese entrepreneurs and foreign companies, constructors or representative offices… presenting in Vietnam. In a new decree (11/2016/ND-CP) implementing the labor code related to foreign nationals working in Vietnam will come into force on April 1, 2016, details new requirements related to the management of foreign nationals working in Vietnam. Whereas it mentioned if a foreigner has been residing in Vietnam, only criminal/good behavior record issued in Vietnam is required for work permit application purposes. Overseas criminal/good behavior record is not needed in such case. Besides, foreigners in specialist and expert positions must supply both a university degree or higher in a field related to their role and evidence of three (3) years post-qualification work experience.
THE TERM OF WORK PERMIT
The validity period of a work permit is equal to the duration of the labor contract to be signed as far as the period is less than 02 years.
Foreigners working in Viet Nam (hereinafter referred to as foreign workers) in one of the forms below:
- Working under labor contracts;
- Being transfer within an enterprise;
- 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;
- Providing services under contract;
- Offering services;
- Working for a foreign non-Governmental organization which is permitted to operate pursuant to the law of Viet Nam;
- Foreigners responsible for establishing commercial presence;
- Managers, executive directors, experts and technical workers;
- Foreigners participating in a tender contract or project in Viet Nam.
CONDITIONS FOR ISSUANCE OF A WORK PERMIT
- There is capacity for civil acts fully in accordance with the law.
- There is health fit with the job requirements.
- Not offenders or being prosecuted for criminal liability in accordance with the law of Viet Nam and foreign law.
- Being approved in writing by the competent State agencies on the use of foreign workers.
- Being a manager, executive director, expert or technician.
Foreign experts in one of the following cases:
- Having a written document proving him/her as an expert of a foreign agency, organization or enterprise;
- 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.
Foreign managers and executive directors in one of the following cases:
- 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;
- Chief Executive Officers who lead and directly operate subsidiary units under agencies, organizations and enterprises;
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.
PROCEDURE FOR ISSUANCE OF A WORK PERMIT
- 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.
- 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.
- 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.
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.
- Capital-contributing members or owners of limited liability companies;
- Members of the Board of Directors of joint-stock companies;
- Chiefs of representative offices and directors of projects of international organizations or non-governmental organizations in Vietnam;
- Those who stay in Vietnam for under 3 months to offer services for sale;
- Those who stay in Vietnam for under 3 months to deal with complicated technical or technological problems that adversely impact or are at risk of exerting adverse impacts on production and business activities and these problems cannot be handled by Vietnamese and foreign experts who are currently in Vietnam.
2. Other cases of foreign workers exempt from work permits, including:
- 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;
- 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;
- 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;
- 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;
- Volunteers certified by foreign diplomatic missions or international organizations in Viet Nam;
- 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;
- Foreign workers entering Viet Nam to implement international agreements to which central and local state agencies are signatories as prescribed by the law;
- Students studying in foreign schools and institutions having agreements on internship in agencies, organizations and enterprises in Viet Nam;
- 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;
- Foreign workers who have official passports to work for state agencies, social organizations and socio-political organizations;
- Other cases decided by the Prime Minister at the proposal of the Ministry of Labor - Invalids and Social Affairs.
DOCUMENTS RELATING TO THE FOREIGN WORKERS
- Foreign worker transfers within an enterprise 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;
- Foreign worker who is 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 must provide a contract or agreement between Vietnamese and foreign partners, which must include an agreement on the foreign worker working in Viet Nam;
- Foreign worker provides services under contract 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;
- Foreign worker offers services must provide an appointment letter of the service provider assigning the foreign worker to come to Viet Nam to negotiate on service provision;
- Foreign worker works for a foreign non-Governmental organization which is permitted to operate pursuant to the law of Viet Nam must provide a certificate of the foreign non-governmental organization and international organization permitted to operate in accordance with Viet Nam law;
- Foreign worker takes responsible for establishing commercial presence 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;
- Foreign worker is Manager, executive director, expert or technical 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;
REVOCATION OF WORK PERMITS, EXPULSION OF FOREIGN WORKERS
Revocation of a work permit
- Work permits lapse.
- Work permits revoked because the employer or the foreign worker does not comply with this Decree.
- Procedure for revocation of a work permit
- For cases of work permits lapse, 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;
- For cases break the law, 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;
- The Department of Labor - Invalids and Social Affairs shall issue a written document confirming revocation of work permit to the employer.
Expulsion of foreign workers
- Foreign workers in Viet Nam without a work permit or written document confirming exemption from work permit as stipulated shall be deported under the Viet Nam law.
- 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.
For further information please contact:
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