ISSUE 030922 – THE APPLICATION PROCEDURE FOR THE ISSUANCE OF WORK PERMIT OF A FOREIGN EMPLOYEE WORKING IN VIETNAM BY IMPLEMENTATION OF LABOR CONTRACT

 

Dear Valued Clients,

With the increasing demand for use of foreign employees, more and more foreign employees are applying to work in Vietnam. In order to work legally in Vietnam, foreign employees need to strictly comply with labor regulations, especially on the issuance of work permit for the foreigner. In this Legal Article, we would like to summarize the conditions issuance of work permits for foreign employees and instructions to carry out this procedure specified in Labor Code No. 45/2019/QH14 dated November 20, 2020 (“Labor Code”) 2019 and related legal documents.

I.       Application dossier

1.      Application for approval of demand for foreign employees

Except for non-deterministic demand for the use of foreign employees cases[1], the employers must submit the application for approval of demand for the use of foreign employees, include:

(i)     Explanation of demand for the use of foreign employees[2];

(ii)    Enterprise Registration Certificate of employers;

(iii)   Employer’s Charter;

Other documents at the request of competent authorities;

2.     Application for the issuance of work permit (“WP”)

The foreigner who would like to work in Vietnam must have WP issued by competent authority, except for cases that the foreign employee exempts from WP mentioned in Appendix 2 of this Legal Article. An application of the issuance of WP is as follows:

2.1.    Application for the issuance of WP in usual cases

(i)       An application form for the issuance of WP made by the employer[3];

(ii)      A health certificate issued by a foreign or Vietnamese competent health authority, issued within 12 months from the date of signing the health conclusion to the date of submitting the application or certificate of health as prescribed by the Minister of Health;

(iii)     A criminal record or a document certifying that the foreign employees not a person who is serving a sentence or has not yet been expunged, or is being examined for criminal liability by a foreign country or by a foreign employee. Vietnam grants no more than 06 months from the date of issuance to the date of application submission;

(iv)    Documents proving that the foreigner is eligible for the registered work position;

(v)     02 color photos (size 4 cm x 6 cm, white background,straight face, bare head, no color glasses), taken within 6 months before the submission date of application;

(vi)     An acceptance document of demand for using foreign employees;

(vii)    A certified true copy of valid passport as per the law.

2.2.    Application for the issuance of WP in special case

In special case, dossier suggestion issuance of a WP specified in as follows[4]:

(i)       For foreign employee who has been issued a WP, which remains valid , and wishes to work for another employer at the same work position and work title in the WP, an application for a new WP shall include: a document issued by the former employer certifying that employee has been working there, documents (i), (v), (vi), (vii) mentioned in Section III 2.1 above and a certified true copy of the current WP;

(ii)      For foreign employee who has been issued a WP, which remains valid, and wishes to work for the same employer but at another work position or work title or working form in the WP, an application for a new WP shall include the documents (i), (v), (vi), (vii) mentioned in Section III 2.1 above, documents proving that they are executives, experts, technical workers and a number of professions and works in accordance with the law and the WP or a certified true copy of the current WP.

 Note: For the documents mentioned in this Section 2, if they belong to a foreign country, they must be consularly legalized (except for cases exempt from consular legalization under international treaties to which the Socialist Republic of Vietnam and the countries concerned are both parties on the principle of reciprocity or as prescribed); must be translated into Vietnamese and authenticated in accordance with Vietnamese law.

II.       Implementation procedure

1.       Application for the acceptance of demand for the use of foreign employees

(i)      At least 30 days before the expected date of employment of foreign employees, the employers (except contractors) are responsible for the determination of demand for the use of foreign employees for each work position that Vietnamese employees have not met and reporting to the Licensing Authority via the public service website management of foreign employees in Vietnam.

(ii)     Within 10 days from the date of receipt of the declaration and report explaining the demand for using valid foreign employees, the approval authorities will send the results via email of the employer. If the submitted application is not valid, the Licensing Authority will issue a notice of amendment.

2.      Apply for the WP issuance

(i)      At least 15 working days before the day on which a foreign employee starts to work in Vietnam, the applicant shall submit an application for WP to the Licensing authority where employee is expected to work via the website of public services manages foreign employees in Vietnam.

(ii)     Within 5 working days after receiving a duly completed application, the Licensing Authority where foreign employee is expected to work shall issue a WP to the foreign employees[5]. If the application is rejected, a written explanation is required.

For foreign employees under employment contract, after the foreign employees is granted a WP, the foreign employer and employee must sign a written employment contract in accordance with the provisions of Vietnamese labor law before the expected date of employment for the employer. The employer must send the signed labor contract upon request to the competent authority that issued the WP. The employment contract is the original or certified copy.

III.      Licensing Authority

(i)       In case the enterprise is located in an industrial park, the applicant shall submit the application for a WP at the Management Board of the industrial park where the enterprise is headquartered.

(ii)      In case the enterprise has its head office outside the industrial park, the applicant shall submit it to the Department of Labor, War Invalids and Social Affairs where the enterprise is headquartered.

(iii)     Overseas Vietnamese and foreign experts participating in science and technology activities in Vietnam shall apply for a WP for foreigners at the Employment Department – Ministry of Labor, War Invalids and Social Affairs[6].

APPENDIX I.

 NON-DETERMINISTIC CASES DEMAND FOR USING FOREIGN EMPLOYEES

 

No.	Cases of non-deterministic demand for the use of foreign employees	Legal basis
1	The manager of a representative office, project or the person in charge of the operation of an international organizations or a foreign non-governmental organization in Vietnam.	Clause 3 Article 154 of Labor Code
2	Enters Vietnam for a period of less than 03 months to do marketing of a service.	Clause 4 Article 154 of Labor Code
3	Enters Vietnam for a period of less than 03 months to a resolve complicated technical or technological issue which (i) affects or threatens to affect business operation and (ii) cannot be resolved by Vietnamese experts or any other foreign experts currently in Vietnam.	Clause 5 Article 154 of Labor Code
4	The owner or capital contributor of a limited liability company with a capital contribution value of at least 3 billion dong.	Clause 1 Article 7 of Decree No. 152/2020/ND-CP dated December 30, 2020 of Government regulation on foreign employees working in Vietnam and recruitment, management Vietnamese’s employees working for foreign organizations and individuals in Vietnam (“Decree 152”)
5	The Chairperson or a member of the Board of Directors of a joint-stock company with a capital contribution value of at least 3 billion dong.	Clause 2 Article 7 of Decree 152
6	Person enters Vietnam to hold the position of a manager, executive, expert or technical worker for a period of work of less than 30 days and up to 3 times a year.	Clause 8 Article 7 of Decree 152
7	Person enters Vietnam to implement an international agreement to which a central or provincial authority is a signatory as per the law.	Clause 9 Article 7 of Decree 152
8	Students studying at a foreign school or training institution which has a probation agreement with an agency, organization or enterprise in Vietnam; or a probationer or apprentice on a Vietnam sea-going ship.	Clause 10 Article 7 of Decree 152
9	Relatives of members of foreign representative missions in Vietnam under the provisions of international treaties to which Vietnam is a contracting party.	Clause 11 Article 7 of Decree 152
10	Person obtains an official passport to work for a regulatory agency, political organization, or socio-political organization.	Article 7.12 Decree 152
11	Person takes charge of establishing a commercial presence.	Article 7.13 Decree 152

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

APPENDIX II.

 CASES OF WORK PERMITS EXEMPTION FOR FOREIGN EMPLOYEES IN VIETNAM

 

No.	Foreign employees are exempt from WPs in Vietnam	Legal basis
1	The manager of a representative office, project or the person in charge of the operation of an international organizations or a foreign non-governmental organization in Vietnam.	Clause 3 Article 154 of the Labor Code
2	The foreigner enters to Vietnam for a period of less than 03 months to do marketing of a service.	Clause 4 Article 154 of the Labor Code
3	The foreigner enters to Vietnam for a period of less than 03 months to a resolve complicated technical or technological issue which (i) affects or threatens to affect business operation and (ii) cannot be resolved by Vietnamese experts or any other foreign experts currently in Vietnam.	Clause 5 Article 154 of the Labor Code
4	A foreign lawyer who has been granted a lawyer’s practicing certificate in Vietnam in accordance with the Law on Lawyers.	Clause 6 Article 154 of the Labor Code
5	In one of the cases specified in an international treaty to which the Socialist Republic of Vietnam is a signatory.	Clause 7 Article 154 of the Labor Code
6	The foreigner who gets married with a Vietnamese citizen and wishes to reside in Vietnam.	Clause 8 Article 154 of the Labor Code
7	The owner or capital contributor of a limited liability company with a capital contribution value of at least 3 billion dong.	Clause 1 Article 7 of Decree 152
8	The Chairperson or a member of the Board of Directors of a Joint Stock Company with a capital contribution value of at least 3 billion dong.	Clause 2 Article 7 of Decree 152
9	An intra-company transferee within 11 sectors in the schedule of commitments in services between Vietnam and WTO, including: business services, communication services, construction services, distribution services, educational services, environmental services, financial services, health services, tourism services, recreational and cultural services, and transport services.	Clause 3 Article 7 of Decree 152
10	The foreigner enters to Vietnam for providing professional and engineering consulting services or perform other tasks intended for research, formulation, appraisal, supervision, evaluation, management and execution of programs and projects using official development assistance (ODA) in accordance with regulations or agreement in international treaties on ODA signed between the competent authorities of Vietnam and foreign countries.	Clause 4 Article 7 of Decree 152
11	Person is granted a communication and journalism practicing certificate in Vietnam by the Ministry of Foreign Affairs as per the law.	Clause 5 Article 7 of Decree 152
12	Person is sent by a foreign competent authority or organization to Vietnam to teach and study at an international school under management of a foreign diplomatic mission or the United Nations; or of a facility established under an agreement to which Vietnam is a signatory.	Clause 6 Article 7 of Decree 152
13	Volunteer means an unpaid foreign employee who voluntarily works in Vietnam to implement an international treaty to which the Socialist Republic of Vietnam is a signatory with certification of a foreign diplomatic mission or international organization in Vietnam.	Clause 7 Article 7 of Decree 152
14	The foreigner enters to Vietnam to hold the position of a manager, executive, expert or technical worker for a period of work of less than 30 days and up to 3 times a year.	Clause 8 Article 7 of Decree 152
15	The foreigner enters to Vietnam to implement an international agreement to which a central or provincial authority is a signatory as per the law.	Clause 9 Article 7 of Decree 152
16	Students studying at a foreign school or training institution which has a probation agreement with an agency, organization or enterprise in Vietnam; or a probationer or apprentice on a Vietnam sea-going ship.	Clause 10 Article 7 of Decree 152
17	Relatives of members of foreign representative missions in Vietnam under the provisions of international treaties to which Vietnam is a contracting party.	Clause 11 Article 7 of Decree 152
18	Person obtains an official passport to work for a regulatory agency, political organization, or socio-political organization.	Clause 12 Article 7 of Decree 152
19	Person takes charge of establishing a commercial presence.	Clause 13 Article 7 of Decree 152
20	Person is certified by the Ministry of Education and Training as a foreign employee entering Vietnam for teaching and research purpose.	Clause 14 Article 7 of Decree 152

 

As always, we hope you found this Legal Article helpful and look forward to working with you shortly.

 

Kind regards,

 

ENT Law LLC

The full version of this Legal Article can be found here.

 

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[1] Non-deterministic cases demand for the use of foreign employees are listed in Appendix 1 of this Legal Article.

[2] Form No. 01/PLI Appendix I issued together with Decree 152.

[3] Form No. 11/PLI Appendix I issued together with Decree 152.

[4] Article 9.9 Decree 152.

[5] Form No. 12/PLI Appendix I issued together with Decree 152.

[6] Article 14.6 of Decree No. 87/2014/ND-CP dated September 22, 2014 regulation on attracting individuals who are Vietnamese people living abroad and foreign experts to participate in science and technology activities in Vietnam.