Provisions on the recruitment and employment of foreign workers in Vietnam

Provisions on the recruitment and employment of foreign workers in Vietnam
Posted date: 11/04/2020
  1. LEGAL BASIS
  • Labor Code 2012.
  • Decree No.11/2016/ND-CP on the implementing some articles of the labor code regarding foreign workers in Vietnam
  • Circular No.40/2016/TT-BLDTBXH on guidance on the implementation of some articles of decree No.11/2016/ND-CP dated February 03, 2016, detailing some articles of the Labor Code in respect of foreign workers in Vietnam.
  • Circular No. 18/2018/TT-BLĐTBXH on amendments and supplements to certain articles of decrees related to administrative procedures under the state management of the Ministry of Labour, War invalids and Social affairs.
  • Decree No. 140/2018/nd-cp on amendments and supplements to decrees related to business conditions and administrative procedures under the management of the Ministry of Labor Code, War invalids and Social affairs.

 

  1. CONTENTS RELATED TO LABOR RELATIONSHIP WITH FOREIGNERS:
  1. Recruiting of foreign workers

a. Conditions for the employment of foreign workers

  • Domestic enterprises, agencies, organizations, individuals and contractors may only employ foreign citizens in such positions as manager, managing director, expert, and technical worker which Vietnamese employees are still unable to fill to meet production and business requirements.
  • Foreign enterprises, agencies, organizations, individuals and contractors shall, before employing foreign citizens to work in the territory of Vietnam, explain their labor demands and obtain written approval from competent state agencies.

b. Process of the recruitment and use foreign workers

  • A foreign employee shall present their work permit when carrying out immigration procedures and upon request of a competent state agency.
  • Any foreign citizen working in Vietnam without the work permit shall be deported from Vietnam according to the Government’s regulations.
  • Any employer employing foreign citizens without the work permits shall be handled under law.
  • The maximum validity duration of a work permit is 2 years.

Step 1: Determination of demand for using foreign workers

  • At least 30 days before the proposed date of hiring of foreign workers, the employer (except for contractors) shall determine the demand for foreign workers for every job position in which Vietnamese workers are incompetent and send the reports to the Chairperson of the People’s Committee of the province where the planned working place of foreign workers is located by using form No. 1, Circular No.40/2016/TT-BLDTBXH is amended and supplemented by Circular No. 18/2018/TT-BLĐTBXH. The People’s Committee of the province shall grant the written approval for the employment of foreign workers in each job position to the employer.
  • In case of changes in demands for utilization of foreign workers, the employer shall submit a written explanation by using form No. 2, Circular No.40/2016/TT-BLDTBXH amended and supplemented by Circular No. 18/2018/TT-BLĐTBXH to the approving authority at least 30 days ahead of the expected date of recruitment.
  • Cases of being unnecessary to determine the demand for foreign labor:

 + 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.

+ 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.

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

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

Step 2: Compilation of application for work permits for foreign workers

After receiving an approval letter on the foreign workers' employment issued by the provincial People's Committee, the employer and the employee shall prepare the following documents:

No.

Document

Explanation

Document type and Quantity

1

The written request for the work permit

Form No. 7, Circular No.40/2016/TT-BLDTBXH

1 original

 

 

2

The health certificate

Qualified to work, according to the form provided in this Circular No. 14/2013/TT-BYT, takes effect within 12 months from the signing date of the conclusion of health status to the date of application.

1 original

3

Criminal Records or written certification not liable to criminal prosecution issued

  • Issued by the consulate where foreigners are granted nationality.
  • If the foreigner resides in Vietnam for more than 3 months, Judicial Records can be obtained at the Department of Justice of the province/city where the foreigner resides.

The dossier includes:

+ Declaration requesting the issuance of judicial records according to the prescribed form.

+ Declaration of temporary residence by a foreigner, certified by Commune Police.

+ Copy of passport of the foreigner.

+ A power of attorney notarized or authenticated in case of authorizing another person to carry out the procedures for requesting a judicial record card No. 1.

+ Copy of the Identity Card or the Citizen ID card or the passport of an authorized person.

1 Notarized translation version for Judicial Records issued by Consulate.

1 original for Judicial Records issued by Department of Justice

 

 

 

 

4

Degrees, certificates, documents related to foreigners

 

 

One of the following documents, according to needs, the position of foreign worker recruitment:

+ The document certifying that he/she is an expert of an overseas agency, organization or enterprise suitable to the job position to be held in Vietnam.

+ Has a bachelor’s degree or equivalent or higher qualifications provided that he/she has worked at least 03 years and issued by a foreign organization.

+ Labor contracts, recruitment decisions, appointment documents, documents proving that he/she is a director, managers or other documents of foreign organizations, depending on the case of recruiting foreign laborers.

+ Technical labor: The certificate of training by the foreign enterprises for at least 1 year suitable for the job position will be held in Vietnam and a certificate of experience of 3 years or more issued by a foreign organization.

1 Legitimate Notarized translation version

 

5

The approval letter of foreign workers employment

Issued by the provincial People's Committee to enterprises wishing to employ foreign laborers.

 

1 Authenticated copy

6

Passport of foreigner

Passport or Travel document of international value

1 copy

7

2 Color photos

Size of 4cm x 6cm, white background, straight face, bare head, no stained glass, photographs taken within 06 months before the date of submission.

 

 

Step 3: Submission

  • Agency receiving documents: The Department of Labor, War Invalids and Social Affairs of the province where the planned working place of foreign workers.
  • Time for submitting the application: At least 15 working days before the day the foreign worker intends to start working for the employer.
  • Time for responding or granting the permit: Within 05 working days from the day on which the sufficient application for the work permit is received, the Department of Labor, War Invalids and Social Affairs shall issue the work permit to the foreign worker using the form provided by the Ministry of Labor, War Invalids and Social Affairs. A written response and explanation shall be provided if the work permit is not issued.
  • Fees: VND 600.000 for each work permit.

Step3: Conclusion of an employment contract

  • After the foreign worker is issued with the work permit, the employer and the foreign worker shall sign a written labor contract in accordance with the Vietnamese 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 this contract to the Department of Labor, War Invalids and Social Affairs that issued such work permit.
  1. Re-issuance of work permit and the expiration of a work permit

a. Re-issuance of work permit

  • The unexpired work permit is lost or damaged, or has its contents changed.
  • The work permit is still valid from 05 to 45 days.
  • The maximum duration of the re-issued work permit is 2 years.

b. Order and procedure for re-issuing the work permit

Step 1: Application preparation

No.

Document

Explanation

Document type and Quantity

1

The written request for the re-issuance of the work permit

Form No. 7, Circular No.40/2016/TT-BLDTBXH

1 original

 

2

The issued work permit

  • The work permit is lost: Certification which is issued by the communal police agency of Vietnam or the competent authority of a foreign country in accordance with the law is required;
  • If the work permit has its contents changed, papers proving such change are required.
  • In the case of the work permit is still valid from 05 to 45 days.

+ The health certificate is used according to the form provided in this Circular No. 14/2013/TT-BYT, takes effect within 12 months.

+ Documents relating to the foreign workers as prescribed by law.

  • In the case of the foreign workers issued with the work permit as regulated, must have the papers proving that the requirements of experts, managers, executives and technical workers are met.

Notarization, Authentication, Translation and Consular legalization for documents from abroad.

 

3

Passport of the foreigner

Passport or other licenses for international travel

1copy

4

2 color photos

Size of 4cm x 6cm, white background, straight face, bare head, no stained glass, photographs taken within 06 months before the date of submission.

 

 

Step 2: Submission

  • Agency receiving documents: The Department of Labour, War Invalids and Social Affairs of the province where the planned working place of foreign workers
  • Time for applying: From 05 to 45 days before the work permit expires
  • Time for responding or granting the permit: Within 05 working days from the day on which the sufficient application for the work permit is received, the Service of Labor, War Invalids and Social Affairs shall issue the work permit to the foreign worker using the form provided by the Ministry of Labor, War Invalids and Social Affairs. A written response and explanation shall be provided if the work permit is not issued.
  • Fees: VND 450.000 for each work permit.

Step 3: Re-signing labor contract

  • After the foreign worker is re-issued with the work permit, the employer and such foreign worker shall sign a written labor contract in accordance with the labor law of Vietnam before the day on which the foreign worker intends to continue the employment with the employer.
  • 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 Department of Labor, War Invalids and Social Affairs that re-issued such work permit.
    1. The work permit’s expiration:
  • The work permit shall be terminated/shall expire in the following cases:

+ The work permit expires.

+ The labor contract is terminated.

+ The content of the labor contract is not consistent with the content of the issued work permit

+ The contract in the field of business, trade, finance, banking, insurance, science and technology, culture, sports, education or medicine expires or is terminated.

+ There is a written notice of the foreign side of on the termination of the sending the foreign citizens to Vietnam for working.

+ The work permit is revoked.

+ The enterprise, organization or partner in Vietnam or the foreign non-governmental organization in Vietnam cease operation.

+ The foreign employee is sentenced to imprisonment, dies, or is declared to be dead or missing by a court.

  • Notice of the work permit’s expiration: In case the work permit expires under the above cases, the agency competent to grant the work permit shall notify in writing the employer of the work permit’s expiration as prescribed.
  1. Exemption from work permits

a. The foreign workers are exempt from applying for the work permits in the following cases:

  • 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.
  • Foreign lawyers possessing a professional practice license in Vietnam in accordance with the Law on Lawyers.
  • It is in accordance with a treaty to which Vietnam is a contracting party.
  • 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.
  • 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;
  • 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;
  • The workers are issued with the licenses for the practice of communications or journalism in Vietnam by the Ministry of Foreign Affairs;
  • 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;
  • The workers are volunteers who have obtained the certification of the foreign diplomatic missions or international organizations in Vietnam;
  • 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;
  • The workers enter Vietnam to implement international agreements to which central or provincial agencies and organizations are signatories in accordance with the law;
  • Students who are studying in schools or training institutions in foreign countries execute their practicum at agencies, organizations or companies in Vietnam upon agreements;
  • 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;
  • Workers are holders of Official Passports for working in state agencies, political organizations or sociopolitical organizations;
  • Other cases decided by the Prime Minister at the request of the Ministry of Labor, War Invalids and Social Affairs.

b. Certification of foreign workers eligible for exemption from work permits

  • The employer shall request the Service of Labor, War Invalids and Social Affairs of the province where the planned working place of foreign workers is located to certify that such foreign workers are eligible for exemption from work permits at least 07 working days before the day on which they start to work.
  • The cases in which employers are not required to determine the demand for foreign workers:

+ 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.

+ 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;

+ 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;

+ The duration of a certification of foreign worker’s eligibility for exemption from work permits shall not exceed 02 years and is equal to one of the following durations:

+ The duration of the labor contract to be signed;

+ The duration of assignment in Vietnam decided by the foreign partner;

+ The duration of the contract or agreement signed by and between the Vietnamese partner and the foreign partner;

+ The duration of the service contract or agreement signed by and between the Vietnam partner and the foreign partner;

+ The duration stated in the paper made by the service provider who sends the foreign worker to Vietnam to negotiate the service supply;

+ The duration stated in the certificate of the foreign non-governmental organization or international organization that has been granted with operating license in accordance with the Vietnam law;

+ The duration stated in the paper made by the service provider who appoints the foreign workers to Vietnam to establish its commercial presence;

+ The duration stated in the paper proving the foreign worker’s eligibility to participate in the operation of a foreign enterprise that has established its commercial presence in Vietnam.

c. Order and procedures for the certification of exemption from work permit

Step 1: The employee shall prepare the following documents:

  • The written request for the certification that the foreign workers are exempt from work permits; using form No. 9 issued together with Circular No.40/2016/TT-BLDTBXH, is amended and supplemented by Circular No. 18/2018/TT-BLĐTBXH.
  • Documents proving that the foreign workers are eligible for exemption from the work permit;

Quantity: 01 photocopies of each kind enclosed with its original for comparison or 01 certified copy of each kind; the documents from abroad are exempt from consular legalization but they must be translated into Vietnamese and authenticated under the Vietnam law.

Step 2: Submission

Within 03 working days from the day on which the sufficient application is received, the Department of Labor, War Invalids and Social Affairs shall send a written certification to the employer. A written response and explanation shall be provided if the certification is rejected.

  1. Employment of foreign workers by contractors
  • Before recruiting foreign workers, the contractor shall specify the quantity, qualifications, professional capacity and experience of foreign workers that are needed for executing the contract in Vietnam and send written request for the recruitment of Vietnamese workers to the job positions available for foreign workers (enclosed with the investor’s certification) to the Chairperson of the Provincial People’s Committee where the contract is executed, using form No.4 are issued together with Circular No.40/2016/TT-BLDTBXH.
  • If the contractor wishes to change or increase the declared number of workers, the plan for changing or increasing demand for workers of such foreign contractors must be certified by the investor, using form No.5 is issued together with Circular No.40/2016/TT-BLDTBXH.
  • The Chairperson of the Provincial People’s Committee shall direct local agencies and organizations to introduce and supply Vietnamese workers to the contractor. In case of failure to introduce and supply Vietnamese workers, The Chairperson of the Provincial People’s Committee shall decide on the contractor's recruitment of foreign workers.

Legal expert: Bui Tran Thuy Vy

FDVN Law Firm


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