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HOW TO APPLY VIETNAM WORKING PERMIT FOR FOREIGNER

  03/06/2020

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In an era of the open economy and increasing foreign investment, the demand for foreign workers is increasing. Enterprises and organizations that want to employ foreign laborers must clearly understand the provisions of the law below to apply for a work permit.

Firstly, in terms of employment conditions are foreign citizens

– According to Clause 1 Article 170 of the Labor Code, Clause 1 Article 4 of Decree 11/2016/ND-CP, Article 4 of Circular 40/2016/TT-BLĐTBXH, at least 30 days in advance from the expected date of employment of the foreign worker, the employer (except the contractor) shall send a report explaining the demand for foreign workers to the Ministry of Labor, War Invalids and Social Affairs or the employer. President of the provincial People’s Committee (hereinafter referred to as the approving agency) where the foreign worker is expected to work and must obtain the written approval of the approval agency (except for the cases prescribed). According to Clauses 4, 5, and 8, Article 172 of the Labor Code and Points e, Point h, Clause 2, Article 7 of Decree 11/2016/ND-CP). In the course of implementation, if the demand for foreign laborers is changed, the employer must report to the President of the provincial People’s Committee.

– Within 15 days from the date of receiving the explanation report, the competent authority shall issue a notice of approval or refusal of employment of foreign workers to the employer.

– According to Clause 1 Article 1 of Decision 1541 / QD-UBND in 2016 on authorization to consider and approve the employment of foreign workers under Decree 11/2016 / ND-CP, in Ho Chi Minh City, Director of the Department of Labor – Invalids and Social Affairs is authorized to receive, consider and approve for each employer use foreign workers for each job position. Therefore, in Ho Chi Minh City, the enterprise may submit an application for an explanation of labor demand (form 01 Circular 40/2016 / TT-BLĐTBXH) to the Department of Labor – Invalids and Social Affairs.

Secondly, regarding the conditions of foreign citizens working in Vietnam

According to Article 169 of the Labor Code, a foreign citizen working in Vietnam must meet the following conditions:

– Having full civil act capacity;

– Having professional qualifications, skills, and health suitable for the job requirements;

– Not being an offender or being examined for penal liability according to the provisions of Vietnamese and foreign laws;

– Having a work permit issued by a competent Vietnamese authority, except for cases not subject to a work permit as prescribed in Article 172 of the Labor Code and Clause 2, Article 7 of Decree 11 / 2016 / ND-CP dated February 3, 2016, specifically:

Article 172. 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.

Clause 2, Article 7 of Decree 11/2016/ND-CP dated February 3, 2016, provides:

  1. Other cases in which the foreign workers are exempt from work permits, including:
  2. a) The workers are internally reassigned in the companies which engage in 11 service industries in Vietnam’s WTO commitments on services, including business, communication, construction, distribution, education, environment, finance, health, tourism, culture, entertainment, and transportation;
  3. 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;
  4. c) The workers are issued with the licenses for the practice of communications or journalism in Vietnam by the Ministry of Foreign Affairs;
  5. 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;
  6. dd) The workers are volunteers who have obtained the certification of foreign diplomatic missions or international organizations in Vietnam;
  7. 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;
  8. g) The workers enter Vietnam to implement international agreements to which central or provincial agencies and organizations are signatories in accordance with the law;
  9. 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;
  10. 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;
  11. k) Workers are holders of Official Passports for working in state agencies, political organizations or sociopolitical organizations;
  12. l) Other cases decided by the Prime Minister at the request of the Ministry of Labor, War Invalids and Social Affairs.

– Laborers who are foreign citizens working in Vietnam must abide by Vietnamese labor laws, treaties to which Vietnam is a contracting party, and other provisions and are protected by Vietnamese law.

Therefore, if the foreign worker does not fall into the cases of exclusion of the conditions for a work permit, the foreign worker must be granted a work permit in order to work legally in Vietnam.

Thirdly, about the procedure for getting a work permit

– After the employer has received the written approval of the foreign employer as analyzed above, the employer will have to carry out the procedure for applying for a work permit for the employees at the Services of Labor, War Invalids and Social Affair of Ho Chi Minh City at least 15 working days from the date the foreign worker is expected to start working according to the following procedure:

– Accordingly, it is necessary to determine the position of work that foreign workers will assume the enterprise (manager, executive director, expert or technical worker, according to Clause 3, Article 9 of Decree 11/2016. / ND-CP dated February 3, 2016) to prepare relevant documents specified in Article 10 of Decree 11/2016/ND-CP:

  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 the 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 health status to the date of application.

  1. 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.

  1. 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:

  1. 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;
  2. b) The documents proving experience of foreign soccer players;
  3. c) The pilot license issued by a Vietnam’s competent authority to the foreign pilot;
  4. 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 foreign workers include:
  8. a) The foreign workers regulated in Point b Clause 1 Article 2 herein must have papers of the foreign enterprise showing that they are appointed 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;
  9. 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;
  10. c) The foreign workers regulated in Point d Clause 1 Article 2 herein must-have 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 a commercial presence in Vietnam for at least 02 years;
  11. 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;
  12. 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;
  13. 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;
  14. 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.
  15. The application for the work permit in certain special cases includes:
  16. 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;
  17. 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;
  18. 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;
  19. 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-CPdated 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.
  20. Consular legalization and certification of documents
  21. a) Documents regulated in Clause 2, 3, and 4 of this Article include 01 photocopies 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.

  1. b) Documents regulated in Clause 7 of this Article include 01 photocopies 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.

– Within 07 working days from the date of receipt of a complete application for a work permit, the competent authority will issue a work permit for foreign workers in the form issued by the Ministry of Labor – Invalids and Social regulations. In case of refusal to issue a work permit, a written reply clearly stating the reason.

– Time to submit the application for a work permit: At least 15 working days from the date the foreign worker is expected to start working for the employer (Clause 1 Article 12 of Decree 11 / 2016 / ND-CP);

– Time for processing: 07 working days from the date of receipt of the complete and valid file (Clause 2 Article 12 of Decree 11/2016 / ND-CP);

– Receiving and processing agency: Services of Labor, War Invalids, and Social Affair of Ho Chi Minh City. Ho Chi Minh;

– Results of dossier processing: Work permit or written refusal.

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