DO FOREIGNERS WHO ARE HEAD OF REPRESENTATIVE OFFICE IN VIETNAM HAVE TO OBTAIN THE WORK PERMIT?

My company has its headquarter in France, now I want to open a representative office in Da Nang city. After opening the representative office, the French director who is the legal representative of the company in France will be the Chief of the  Representative office in Vietnam. I would like to ask whether it is legal that the chief of the representative is also the director of the parent company. Besides, does he have to obtain the work permit? As far as I'm concerned, there are some objects exempted from work permit. What should I do to apply for a work permit? I hope to hear from FDVN soon. Thank you.

 

FDVN’s opinions:

Thank you for concerning FDVN’s legal services. Regarding your consulting requests, after studying the relevant legal documents, FDVN Law Firm would like to give you the following advice:

 

[1]. Legal provisions on the head of Representative office cum director at the parent company:

Pursuant to Clause 6, Article 33 of Decree No. 07/2016/NĐ-CP on detailed regulations on the establishment of representative offices or branches of foreign traders in Vietnam under Law on Commerce:

“Article 33. Heads of representative offices or branches

6. The head of a representative office shall not concurrently hold the following titles:

a) The head of a branch of the same foreign traders;

a) The head of a branch of another foreign trader;

c) The legal representative of the same foreign trader or others;

d) The legal representative of a business organization incorporated in accordance with the Laws of Vietnam.”

Therefore, it is illegal that the director of your company is also the head of the representative office.

 

[2]. Do foreigners who are representative offices in Vietnam have to obtain a work permit?

Pursuant to Article 173 of Labor Code 2012 providing for foreign citizens working in Vietnam who are exempt from work permit:

“1. Capital-contributing members or owners of limited liability companies.

2. Members of the Board of Directors of joint-stock companies.

3. Chiefs of representative offices and directors of projects of international organizations or non-governmental organizations in Vietnam.

4. Those who stay in Vietnam for under 3 months to offer services for sale.

5. 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.

6. Foreign lawyers possessing a professional practice license in Vietnam in accordance with the Law on Lawyers.

7. It is in accordance with a treaty to which Vietnam is a contracting party.

8. Those who are studying and working in Vietnam, provided that the employer shall notify their employment to the provincial-level state management agency of labor 7 days in advance.

9. Other cases as stipulated by the Government.”

Besides, it is stipulated in Clause 2, Article 7 of Decree No. 11/2016/ND-CP on the cases of  foreign workers exempted from applying for the work permits:

“a) The workers are internally reassigned in the companies which engage in 11 service industries in the Vietnam’s WTO commitments on services, including business, communication, construction, distribution, education, environment, finance, health, tourism, culture, entertainment, and transportation;

b) The workers enter Vietnam to provide professional and technical advisory services or perform other tasks serving the research, construction, appraisal, assessment, management, and execution of programs and projects funded by ODA according to the International Treaties on ODA between the competent authorities of Vietnam and other countries;

c) The workers are issued with the licenses for the practice of communications or journalism in Vietnam by the Ministry of Foreign Affairs;

d) The workers are appointed by foreign agencies or organizations to teach or do research in international schools under the management of foreign diplomatic missions or international organizations in Vietnam or the workers are permitted to teach or do research in education and training institutions in Vietnam by the Ministry of Education and Training;

dd) The workers are volunteers who have obtained the certification of the foreign diplomatic missions or international organizations in Vietnam;

e) The workers enter Vietnam to hold the positions of experts, managers, chief executive officers or technicians for a period of under 30 days and an accumulated working period of under 90 days per year;

g) The workers enter Vietnam to implement international agreements to which central or provincial agencies and organizations are signatories in accordance with the law;

h) Students who are studying in schools or training institutions in foreign countries execute their practicum at agencies, organizations or companies in Vietnam upon agreements;

i) Relatives of members who are executing their functions in foreign missions in Vietnam upon the approval of the Ministry of Foreign Affairs, unless otherwise stated in the International Treaties to which the Socialist Republic of Vietnam is a signatory;

k) Workers are holders of Official Passports for working in state agencies, political organizations or sociopolitical organizations;

l) Other cases decided by the Prime Minister at the request of the Ministry of Labor, War Invalids and Social Affairs.”

Thus, the head of the Representative Office in Vietnam is not exempted from the work permit. Therefore, after opening the representative office, your company needs to carry out the procedures for applying for the work permit of the head of the Representative Office.

 

[3] Procedures on applying for a work permit:

3.1. Determination of demand for foreign workers:

According to Article 4 of Decree No. 11/2016/NĐ-CP on implementing a number of articles of the Labor Code regarding foreign workers in Vietnam, amended and supplemented by Clause 2, Article 11 of Decree No. 140/2018/ND-CP:

“The employer (except for contractors) shall determine the demand for foreign workers for every job position in which Vietnamese workers are incompetent and send reports to the People’s Committee of the province or central-affiliated city (hereinafter referred to as “the People’s Committee of the province”) where the planned working place of foreign workers is located. The employer shall send a report to the People’s Committee of the province if the demand for foreign workers is changed in the course of execution.

The People’s Committee of the province shall grant a written approval for the employment of foreign workers in each job position to the employer”.

 

3.2.  Procedure for applying for a work permit:

3.2.1. The application consists of:

Pursuant to Article 10 of Decree No. 11/2016/ND-CP providing for the application for the work permit:

“1. The written request for the work permit made by the employer in accordance with regulations of the Ministry of Labor, War Invalids and Social Affairs.

The health certificate or report on medical examination is issued by the foreign or Vietnamese authorized health organizations or agencies and takes effect within 12 months from the signing date of the conclusion of heath status to the date of application.

3. The criminal record or written certification that the foreign worker is not a criminal or liable to criminal prosecution issued by the foreign competent authority. If the foreign worker is a lawful resident in Vietnam, only the criminal record issued by the Vietnamese competent authority is required.

The criminal record or written certification that the foreign worker is not a criminal or liable to criminal prosecution must be issued within 06 months prior to the submission of the application.

4. The written certification that the worker is a manager, chief executive officer, expert, or technician.

For some jobs and works, the written certification of the qualification of the foreign worker can be replaced with one of the following papers:

a) Certificate of recognition which is issued by the competent authority of the foreign country if the worker is an artist in the traditional professions;

b) The documents proving experience of foreign soccer players;

c) The pilot license issued by a Vietnam’s competent authority to the foreign pilot;

d) The license for airplane maintenance issued by Vietnam’s competent authority to the foreign worker who works in the airplane maintenance industry.

5. 02 color pictures (4cm x 6cm, white background, frontal face, bareheaded, and no colorful glasses) that are taken within 06 months ahead of the date of application.

6. Certified copy of passport or a substitute for passport or another license for international travel which is unexpired in accordance with the law.

7. Documents related to the foreign workers include:

a) The foreign workers regulated in Point b Clause 1 Article 2 herein must have papers of the foreign enterprise showing that they are appoint to work at the commercial presence of such foreign enterprise in Vietnam and the papers proving that they have been employed by such foreign enterprise for at least 12 months before they are appointed to work in Vietnam;

b) The foreign workers regulated in Point c Clause 1 Article 2 herein must have contracts or agreements sign by the Vietnamese partner and the foreign partner, including the agreements on sending foreign workers to work in Vietnam;

c) The foreign workers regulated in Point d Clause 1 Article 2 herein must conclude service contracts signed by the Vietnamese partner and the foreign partner and the papers proving that the foreign workers have worked for the foreign enterprise without commercial presence in Vietnam for at least 02 years;

d) The foreign workers regulated in Point D Clause 1 Article 2 herein must have the papers made by the service provider proving that the foreign workers are appointed to Vietnam to negotiate the service supply;

dd) The foreign workers regulated in Point e Clause 1 Article 2 herein must have certificates issued by the foreign non-governmental organization or international organization that has been granted with operating license in accordance with the Vietnam law;

e) The foreign workers regulated in Point h Clause 1 Article 2 herein must have the paper made by the service provider who appoints such foreign workers to Vietnam to establish its commercial presence;

g) The foreign workers regulated in Point i Clause 1 Article 2 herein, who participate in the operation of the foreign enterprise that has established its commercial presence in Vietnam, must have papers proving the foreign workers’ eligibility to participate in the operation of such foreign enterprise.

8. The application for the work permit in a certain special cases includes:

a) If the foreign worker who is the holder of an unexpired work permit wants to enter into the employment contract with another employer at the job position which is the same with that defined in his work permit in accordance with the law, the application for the work permit includes documents regulated in Clause 1, 5, 6 and 7 herein and the work permit or certified copy of the issued work permit;

b) If the foreign worker who is the holder of an unexpired work permit wants to hold another job position which is different from that defined in his work permit in accordance with the law but the employer is unchanged, the application for the work permit includes documents regulated in Clause 1, 4, 5, 6 and 7 herein and the work permit or certified copy of the issued work permit;

c) If the foreign worker whose work permit expires as regulated in Article 174 of the Labor Code wants to continue his employment at the job position which is the same with that defined in his work permit in accordance with the law, the application for the work permit includes documents regulated in Clause 1, 2, 3, 5, 6 and 7 herein and certificate of revocation of his work permit;

d) If the foreign workers regulated at Point a, b, and c of this Clause have been issued with the work permits as regulated in the Government's Decree No. 102/2013/ND-CP dated September 05, 2013 on detailed regulations on implementing a number of articles of the Labor Code regarding foreign workers working in Vietnam, they must submit documents proving their eligibility as regulated in Clause 3 or Clause 4 or Clause 5 Article 3 herein.

9. Consular legalization and certification of documents

a) Documents regulated in Clause 2, 3, and 4 of this Article include 01 photocopy of each kind enclosed with its original for comparison or 01 certified copy of each kind.

If the above-mentioned documents are issued by foreign authorities, they must be applied for the consular legalization, except for cases of exemption from the consular legalization as regulated in the international treaties to which the Socialist Republic of Vietnam and relevant foreign country are signatories or in the principle of reciprocity or as regulated by the law; must be translated into Vietnamese and authenticated in accordance with the Vietnam law.

b) Documents regulated in Clause 7 of this Article include 01 photocopy of each kind enclosed with its original for comparison or 01 certified copy of each kind. If such documents are issued by foreign authorities, they are exempt from the consular legalization provided that they must be translated into Vietnamese and authenticated in accordance with the Vietnam law.”

3.2.2. Procedure for applying for a work permit:

Pursuant to Article 12 of Decree No. 11/2016/ND-CP, amended and supplemented by Clause 7, Article 11, Decree No. 140/2018/NĐ-CP on the order of issuance of work permits:

- At least 15 working days before the day on which the foreign worker intends to start his job, the employer shall submit the application for the work permit to the Service of Labor, War Invalids and Social Affairs of the province where the planned working place of the such foreign worker is located.

- Within 05 working days of the receipt of the satisfactory application is received, the province employment authority shall issue the work permit to the foreign worker using the form specified and released by the Ministry of Labor, War Invalids, and Social Affairs. If the application is rejected, a response and explanation shall be provided in writing.

-  After the foreign worker mentioned in Point a Clause 1 Article 2 of this Decree is issued with the work permit, the employer and the foreign worker shall sign a written labor contract in accordance with the Vietnam law before the intended working day of such foreign worker.

- Within 05 working days from the day on which the labor contract is signed, the employer shall send a copy of the signed labor contract to the Service of Labor, War Invalids, and Social Affairs that issued such work permit.

Above is FDVN Law Firm's opinion for your consulting requests based on studying the relevant legal provisions. Hopefully, FDVN's advice would be helpful to you.

Dinh Thi Thong - FDVN Law Firm

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