Overview of Work Permit Vietnam 2020 - The Labor Code No. 45/2019/QH14 ("New Labor Code") have been passed by the National Assembly of Vietnam on 20 November 2019 and will take effect from 1 January 2021, some main changes are expected to have a significant impact on enterprises and organizations that recruit foreign labor in Vietnam. The New Labor Code changes the term of Vietnam Work Permits, Work Permits Extensions and Work Permit Exemption Certificate for foreign labor in Vietnam. In particular, the term of Vietnam work permit is limited to a maximum of two years and the work permits can now only be extended once for a further two-year term. Foreign laborers who want to continue working in Vietnam after the expiry of the extended work permit will have to apply for a new work permit.
To have an overview of Vietnamese work permits, we have summarized and highlighted the newest updates on work permit and work permit extension in Vietnam based on the New Labor Code effect from 1 January 2021as below:
THE TERM OF VIETNAM WORK PERMIT FOR FOREIGENR LABOURS 2020 - 2021
The validity period of a Vietnam work permit, work permits extension, work permit exemption certificate is equal to the duration of the labor contract to be signed as far as the period is less than 02 years and under the new regulations of the New Labor Code, the work permit can only be extended/ renewed once for a further two-year term. In the case that Vietnam’s enterprise, company or organization and foreigner labor continue to sign labor contract and foreign workers who also want to continue working at current company in Vietnam and after the expiry of the extended work permit will have to apply for a new Vietnam work permit.
WHO CAN APPLY FOR WORK PERMIT IN VIETNAM
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 or form of internal transfer;
- 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;
- Foreigners are offering services in Vietnam;
- Working for a foreign Non-Governmental organization which is permitted to operate pursuant to the law of Viet Nam;
- They are volunteers;
- Foreigners are responsible for establishing commercial presence;
- They are managers, executive directors, experts and technical workers;
- Foreigners are participating in a tender contract or project in Viet Nam.
CONDITIONS OBTAIN/ GRANT A VIETNAMESE WORK PERMIT
- There is capacity for civil acts fully in accordance with the law.
- There is health fit with the job requirements in Vietnam
- Foreigner labors are offenders or being prosecuted for criminal liability in accordance with the law of Vietnam and foreign law.
- Being approved in writing by the competent State agencies on the use of foreign workers.
- Foreigner labors are a manager, executive director, expert or technician.
<1> Foreign Experts need to prove the following documents:
- Having a written document proving him/her as an expert in a foreign agency, organization or enterprise;
- Having a college degree or equivalent or higher qualifications and have at least three-years of working experience in the field consistent with the position that the foreign workers are expected to work in Vietnam; special cases shall be considered and decided by the Prime Minister.
<2> Foreign Managers and executive directors in one of the following cases
- Managers of an enterprise/ company as stipulated in Clause 18 of Article 4 of the Law on Enterprises or heads and deputy heads of an agency or an organization;
- Chief Executive Officers who lead and directly operate subsidiary units under agencies, organizations and enterprises;
<3> Technical workers need to prove the following documents
- Who had received technical or other specialized training for least 01 year and
- They worked at least 03 years in the sector of specialized training and can provide a letter of working experience with full of personal information, job title and position, and Information of company signing the letter of work experience confirmation.
PROCEDURES TO APPLY FOR A WORK PERMIT IN VIETNAM
Applying for a work permit in Vietnam needs to complete 3 required steps in the following order
<Step 1> Submit Form No 1 - Explanation of foreign labor usage plan to Department of Labour, Invalids and Social Welfares
Before at least 30 days since the day foreign labors anticipated to work for employer units including companies, contractors or representative offices, these units shall submit documents as foreign labor usage requirement requested to grant Vietnam work permit to Department of Labor, Invalids and Social Welfares at where foreign labor expected to work.
<Step 2>: Submit required documents for Vietnam Work Permit Issuance
After obtaining the written approval of the position for foreign workers, the employer units submit all required documents for work permit issuance into the Department of Labor - Invalids and Social Affairs, within 07 working days from the date of receipt of an application for issuance of the work permit, the Department of Labor - Invalids and Social Affairs must issue a work permit Vietnam for the foreign worker using forms the prescribed by the Ministry of Labor - Invalids and Social Affairs. In case the work permit is not granted, it must issue a written reply clearly stating the reason.
<Step 3> Signing a labor contract with foreign workers
After issuance of a Vietnam 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.
WORK PERMIT EXEMPTION IN VIETNAM WHO IS ELIGIBLE
Foreigners in the following cases are exempted from Vietnamese work permits, however, a work permit exemption certificate must be issued by the Department of Labor - Invalids and Social Affairs confirming that 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 Vietnam 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 Vietnam 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 Vietnam by such organizations to teach and research in international schools under the management of foreign diplomatic missions or international organizations in Vietnam or permitted by the Ministry of Education and Training to teach and research in Vietnam’s education and training institutions;
- Volunteers certified by foreign diplomatic missions or international organizations in Vietnam;
- Foreign workers coming to Vietnam to work as experts, managers, executive directors or technical employees within a period of less than 30 days and no more than 90 cumulative days in 01 years;
- Foreign workers entering Vietnam 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 Vietnam;
- Family members of diplomatic agents of foreign diplomatic missions in Vietnam 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.
REQUIRED DOCUMENTS PROVIED BY 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 Vietnam and proof of employment for the enterprise for at least 12 months prior to working in Vietnam;
- 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 Vietnam;
- 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 Vietnam for least 02 years;
- Foreign worker offers services must provide an appointment letter of the service provider assigning the foreign worker to come to Vietnam 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 responsibility 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 VIETNAM WORK PERMITS, EXPULSION OF FOREIGN WORKERS
Revocation of a Vietnam 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 Vietnam 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 Vietnam without a work permit or written document confirming exemption from work permit as stipulated shall be deported under the Vietnam law.
- Within 15 working days from the date confirming the foreigner working in Vietnam without a work permit, the Department of Labor - Invalids and Social Affairs shall request the police department to deport that foreign worker.
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