CAN A FOREIGNER DO BUSSINESS IN THE SERVICE OF SENDING VIETNAMESE PEOPLE TO WORK ABROAD?

I’m Japanese, have lived and worked in Vietnam for 3 years, I need your firm to advise me the following case. Currently, Vietnamese people have great demand to study and work in Japan. Therefore, I would like to know whether I can do business in the service of sending Vietnamese people to work in Japan or not.  What procedures do I need to do to get a license? Thank you.

FDVN’s opinions:

[1].Conditions for issuance of license for organizing guest worker programs:

Article 6 Decree 38/2020/ND-CP on elaborating to Law on Vietnamese Guest Workers, eligibility regarding business model and legal capital is provided:

“Enterprises permitted to organize guest worker programs (hereinafter referred to as “service providers”) are limited liability companies, joint-stock companies and partnerships which are established and operating according to Law on Enterprises and satisfy following capital requirements: 

1. Legal capital must not be lower than VND 5,000,000,000.

2. Owners, members, and shareholders must be domestic investors according to Law on Investment.”

According to Clause 15 Article 3 of Law on Investment 2014:

“Vietnamese investor means an individual holding Vietnamese nationality or a business organization whose members or shareholders are not foreign investors.”

Therefore, because you are a foreigner, you are not eligible for doing business in the service of sending Vietnamese people to work abroad.

[2] Process for issuance of license for doing business in the service of sending Vietnamese people to work abroad.

2.1. Licensing conditions

According to Article 9 Law on Vietnamese guest workers 2006, an enterprise meeting all the following conditions may be granted a license:

- Having a scheme on sending workers abroad.

- Having a specialized section to provide necessary knowledge for workers before sending them abroad and to provide guest worker services in accordance with regulations of the Ministry of Labor, War Invalids, and Social Affairs. For an enterprise participating in the sending of workers abroad for the first time, a plan on the organization of the specialized section in charge of providing necessary knowledge for workers and sending them abroad is required.

- The leader in charge of administering activities of sending workers abroad having a university or higher degree, at least three-year experience in the sending of workers abroad or in international cooperation and relations.

- Having paid deposits under government regulations.

2.2  Licensing dossiers:

According to Article 11 Decree 38/2020 / ND-CP, an application for issuance of the license includes:

- Application for issuance of the license includes written request of enterprises (using Form No. 3 under Annex II and attached to this Decree) and following documents:

- 01 copy of the latest enterprise registration.

- Documents proving capital conditions according to Article 13 of this Decree.

- 01 master register of margin submission confirmation paper.

- 01 master register of Scheme for organizing guest worker programs.

- 01 copy of documents proving ownership or agreements on renting equipment to provide workers with necessary experience.

-  Documents proving eligibility of lead operators and specialized employees.

- 01 copy of the company’s charter.

2.3. Licensing procedures and fees:

(Article 10 Law on Vietnamese guest workers 2006)

Step 1: The employee submits all documents as mentioned in Section 2.2 above to the Overseas Labor Management Department under the Ministry of Labor, War Invalids, and Social Affairs.

Step 2: The Ministry of Labor, War Invalids and Social Affairs shall consider issuing a certificate within 30 days from the date of receiving a complete.

If refusing to grant a license, the Minister of Labor, War Invalids and Social Affairs shall give a written reply to the enterprise, clearly stating the reasons therefor.

Step 3: The licensed enterprise get the license and shall pay a licensing fee

Hoang Thi Thuy Quynh, FDVN Law Firm