Decree guiding some articles of Labor Code on foreign workers in Viet Nam

DECREE

GUIDING SOME ARTICLES OF THE LABOR CODE ON FOREIGN WORKERS IN VIET NAM

Pursuant to the Law on Organization of the Government dated June 19, 2015;

Pursuant to the Labor Code dated June 18, 2012;

At the proposal of the Minister of Labor – Invalids and Social Affairs;

The Government promulgates Decree guiding some articles of the Labor Code on foreign workers in Viet Nam.

 

Chapter I

GENERAL PROVISIONS

Article 1. Scope of application

This Decree governs the implementation of the Labor Code on issuance of work permits to foreign workers in Viet Nam and expulsion of foreign workers in Viet Nam without work permits.

Article 2. Applicable entities

1. Foreigners working in Viet Nam (hereinafter referred to as foreign workers) in one of the forms below:

a) Working under labor contracts;

b) Being transfer within an enterprise;

c) Performance of any of the following types of contract, namely economic, commercial, financial, banking, insurance, scientific and technical, cultural, sports, educational, vocational training or medical health contracts;

d) Providing services under contract;

dd) Offering services;

e) Working for a foreign non-Governmental organization which is permitted to operate pursuant to the law of Viet Nam;

g) Volunteers;

h) Foreigners responsible for establishing commercial presence;

i) Managers, executive directors, experts and technical workers;

k) Foreigners participating in a tender contract or project in Viet Nam.

2. Employers using foreign employees comprise:

a) Enterprises operating pursuant to the Law on Enterprises and the Law on Investment or international treaties to which the Socialist Republic of Viet Nam is a signatory;

b) Foreign or domestic contractors participating in tendering, carrying out a contract in Viet Nam;

c) Representative offices and branches of an enterprise, agency or organization permitted to be established by the competent authority;

d) State agencies, political, socio-political, socio-occupational-political, social and socio-occupational organizations;

dd) Foreign non-governmental organizations and international organizations in Viet Nam;

e) State professional units established pursuant to the law;

g) Foreign project offices or offices of international organizations in Viet Nam;

h) Operating offices of a foreign investor pursuant to business cooperation contracts or foreign contractors permitted for registration pursuant to the law;

i) Organizations practising law in Viet Nam in accordance with the law;

k) Cooperatives and co-operative groups established and operating pursuant to the Law on Cooperatives;

l) Associations and business associations established in accordance with the law;

m) Business households and individuals permitted to do business in accordance with the law.

Article 3. Foreign workers who are internally transferring within an enterprise, volunteers,managers, executive directors, experts and technical workers

1. Foreign workers internally transferring within an enterprise as managers, executive directors, experts and technical workers of a foreign enterprise which has already established a commercial presence within the territory of Viet Nam, temporarily move within the enterprise to the representative office within the territory of Viet Nam and have been employed for at least 12 months prior to such transfer by the foreign enterprise.

2. Foreign volunteers in Viet Nam in voluntary and unpaid forms pursuant to international treaties to which the Socialist Republic of Viet Nam is a signatory.

3. Foreign experts in one of the following cases:

a) Having a written document proving him/her as an expert of a foreign agency, organization or enterprise;

b) Having a college degree or equivalent or higher qualifications and have at least 03 year-working experience in the field consistent with the position that the foreign workers are expected to work in Viet Nam; special cases shall be considered and decided by the Prime Minister.

4. Foreign managers and executive directors in one of the following cases:

a) Managers of an enterprise as stipulated in Clause 18 of Article 4 of the Law on Enterprises or heads and deputy heads of an agency or a organization;

b) Chief Executive Officers who lead and directly operate subsidiary units under agencies, organizations and enterprises.

5. Technical workers who had received technical or other specialized training for least 01 year and worked at least 03 years in the sector of specialized training.

Chapter II

ISSUANCE OF WORK PERMITS, REISSUANCE OF WORK PERMITS, EXPULSION OF FOREIGN WORKERS WITHOUT WORK PERMITS

Section 1

IDENTIFICATION OF WORK ALLOWED TO EMPLOY FOREIGN WORKERS

Article 4. Use of foreign workers

1. Identify the demand for foreign workers

a) The employer (excluding contractors) is responsible for identifying the demand to use foreign workers for each job position that Vietnamese workers could not meet its requirements and report to Chairman of provincial-level People's Committee (hereinafter referred to as the provincial People's Committee) where the foreign worker is expected to work. During the employment period, should there is a change in the demand to use foreign workers, the employer must report to Chairman of provincial People’s Committee.

b) For foreign workers specified in Clause 4, 5 and 8 of Article 172 of the Labor Code and Point e and Point h, Clause 2 of Article 7 of this Decree, the employer shall not have to identify the demand for foreign workers.

2. Chairman of provincial People’s Committee shall issue written approval to the employer on the use of foreign workers for each job position.

Article 5. Use of foreign workers by contractors

1. Before hiring foreign workers, a contractor must declare the number, qualifications, professional competence and experience of foreign workers to be mobilized to implement a contract in Viet Nam and send a request to recruit Vietnamese workers into job positions expected to recruit foreign workers (attached with confirmation of the investor) to Chairman of the provincial People's Committee where the contractor implements the contract.

Where the contractor needs to adjust and supplement the declared number of employees, the investor must confirm the adjustment plan, additional labor demand by the foreign contractor.

2. Chairman of the provincial People's Committee shall direct local agencies and organizations to introduce and supply Vietnamese workers for the contractor. Within 02 months from the date of receipt of a request to recruit at least 500 Vietnamese employees and 01 month from the date of receipt of a request to recruit less than 500 Vietnamese employees, if it is impossible to introduce or supply Vietnamese workers to the contractor, Chairman of the provincial People's Committee shall consider and decide to allow the contractor to recruit foreign workers to work at placements that it could not recruit Vietnamese employees.

3. The investor is responsible for supervising and requiring the contractor to comply with the declared content of the use of Vietnamese and foreign workers; guiding, supervising and inspecting the contractor to comply with regulations on recruitment and use of foreign employees working for contractors in accordance with the law; monitoring and managing foreign workers in accordance with regulations of Viet Nam; providing quarter reports to the provincial Department of Labor - Invalids and Social Affairs on the recruitment, use, and management of foreign workers by contractors under the regulations of the Ministry of Labor - Invalids and Social Affairs.

4. Quarterly, the provincial Department of Labor - Invalids and Social Affairs in collaboration with the police departments and relevant agencies shall inspect the compliance of regulations of Viet Nam on foreign employees working for contractors in the province.

Article 6. Report on the use of foreign workers

1. Annually or upon request, the provincial People's Committees shall be responsible for reporting to the Ministry of Labor - Invalids and Social Affairs on the demand for foreign workers, accepted demand for foreign workers and management of foreign workers working in the province.

2. Quarterly, bi-annually and annually, Departments of Labor - Invalids and Social Affairs shall be responsible for reporting on foreign workers working in the province under guidelines of the Ministry of Labor - Invalids and Social Affairs.

Section 2.

FOREIGN WORKERS EXEMPT FROM WORK PERMITS

Article 7. Cases of foreign workers exempt from work permits

1. Foreign workers specified in Clauses 1, 2, 3, 4, 5, 6, 7 and 8 of Article 172 of the Labor Code.

2. Other cases of foreign workers exempt from work permits, including:

a) Foreign workers who are internally transferred within an enterprise operating in the 11 service sectors in the list of Viet Nam’s commitments on services to the World Trade Organization, including: business, communication, construction, distribution, education , environment, finance, healthcare, tourism, cultural entertainment and transport;

b) Foreign workers entering Viet Nam to provide advisory services and technical expertise or perform other tasks serving research, construction, appraisal, monitoring and evaluation, management and implementation of programs/projects funded with official development assistance (ODA) as specified and agreed in international agreements on ODA between competent authorities of Viet Nam and other countries;

c) Foreign workers who are issued with a license for the practice of journalism in Viet Nam by the Ministry of Foreign Affairs in accordance with the law;

d) Foreign workers who are teachers of foreign organizations that are sent to Viet Nam by such organizations to teach and research in international schools under the management of foreign diplomatic missions or international organizations in Viet Nam or permitted by the Ministry of Education and Training to teach and research in Viet Nam’s education and training  institutions;

dd) Volunteers certified by foreign diplomatic missions or international organizations in Viet Nam;

e) Foreign workers coming to Viet Nam to work as experts, managers, executive directors or technical employees with a period of less than 30 days and no more than 90 cumulative days in 01 years;

g) Foreign workers entering Viet Nam to implement international agreements to which central and local state agencies are signatories  as prescribed by the law;

h) Students studying in foreign schools and institutions having agreements on internship in agencies, organizations and enterprises in Viet Nam;

i) Family members of diplomatic agents of foreign diplomatic missions in Viet Nam permitted for working by the Ministry of Foreign Affairs, except where international treaties to which the Socialist Republic of Viet Nam is a signatory that contains provisions different from this;

k) Foreign workers who have official passports to work for state agencies, social organizations and socio-political organizations;

l) Other cases decided by the Prime Minister at the proposal of the Ministry of Labor - Invalids and Social Affairs.

Article 8. Confirmation of foreign workers exempt from work permits

1. Departments of Labor - Invalids and Social Affairs shall be authorized to certify foreign workers exempt from work permits.

2. The employer can request the Department of Labor - Invalids and Social Affairs, where the foreign worker is expected to work, to certify that the foreign worker is exempt from work permit at least 07 working days before the date the employee starts working, except for cases provided in Clause 4 and Clause 5 of Article 172 of the Labor Code and Point e, Clause 2 of Article 7 of this Decree.

The validity period  of work permit exemption shall not exceed 02 years and equal to the duration of one of the cases provided in Article 11 of this Decree.

3. Application file for exemption from work permits, including:

a) Request for exemption from work permits;

b) Profile of the foreign worker comprising full name, age, gender, nationality, passport number, start date and end date of employment, job placement of the foreign worker;

c) Proof of eligibility for work permit exemption;

d) Proof of eligibility for work permit exemption include 01 photocopy to be collated with the original or 01 certified copy. Foreign documents are exempt from consularization, but must be translated into Vietnamese and certified in accordance with regulations of Viet Nam.

4. Within 03 working days from the date of receipt of a full application for work permit exemption, the Department of Labor - Invalids and Social Affairs shall send a written confirmation of work permit exemption to the employer. In case work permit exemption is not granted, a document clearly stating the reasons must be issued.

Section 3

ISSUANCE OF WORK PERMITS

Article 9 Conditions for issuance of a work permit

1. There is capacity for civil acts fully in accordance with the law.

2. There is health fit with the job requirements.

3. Being a manager, executive director, expert or technician.

4. Not offenders or being prosecuted for criminal liability in accordance with the law of Viet Nam and foreign law.

5. Being approved in writing by the competent State agencies on the use of foreign workers.

Article 10. Application file for issuance of a work permit

1. Request for issuance of a work permit from the employer in accordance with regulations of the Ministry of Labor - Invalids and Social Affairs.

2. Health certificate or medical certificate issued by a competent foreign or Vietnamese health care agency or organization valid for 12 months from the date of signing to the application date.

3. Judicial record or written document confirming the foreign worker is not an offender or being prosecuted for criminal liability issued by the foreign country. If the foreign worker resides in Viet Nam, only judicial record issued Viet Nam is required.

The judicial record or written document confirming the foreign worker is not an offender or being prosecuted for criminal liability must be issued within 06 months from the issuance date to the application date.

4. Proof showing he/she as a manager, executive, expert or technician

For some occupations and jobs, proof of professional qualifications and skills of foreign workers shall be replaced by one of the following documents:

a) Certificate of recognition for artisan traditional crafts by the competent authorities of foreign countries;

b) Proof of experience of foreign football players;

c) Aircraft pilot license by the competent authorities of Viet Nam for foreign pilots;

d) Aircraft maintenance license by the competent authorities of Viet Nam for foreign workers working as aircraft maintenance.

5. 02 color photos (size 4cm x 6cm, white background, front, bareheaded, without sunglasses), taken within 06 months prior to the application date.

6. A certified copy of passport or valid papers or international travel documents in accordance with the law.

7. Documents relating to the foreign worker

a) Foreign worker stipulated under Point b, Clause 1 of Article 2 of this Decree must provide an appointment letter of the foreign enterprise assigning the foreign worker to work in the commercial presence of the foreign enterprise within the territory Viet Nam and proof of employment for the enterprise for at least 12 months prior to working in Viet Nam;

b) Foreign worker stipulated under Point c, Clause 1 of Article 2 of this Decree must provide a contract or agreement between Vietnamese and foreign partners, which must include an agreement on the foreign worker working in Viet Nam;

c) Foreign worker stipulated under Point d, Clause 1 of Article 2 of this Decree must provide a service contract between Vietnamese and foreign partners and proof of employment for the foreign enterprise which does not have a commercial presence in Viet Nam for least 02 years;

d) Foreign worker stipulated under Point dd, Clause 1 of Article 2 of this Decree must provide an appointment letter of the service provider assigning the foreign worker to come to Viet Nam to negotiate on service provision;

dd) Foreign worker stipulated under Point e, Clause 1 of Article 2 of this Decree must provide a certificate of the foreign non-governmental organization and international organization permitted to operate in accordance with Viet Nam law;

e) Foreign worker stipulated under Point h, Clause 1 of Article 2 of this Decree must provide a written appointment letter of the service provider assigning the foreign worker in Viet Nam to establish a commercial presence of the service provider;

g) Foreign worker stipulated under Point i, Clause 1 of Article 2 of this Decree engaging in activities of the foreign enterprise, which have established a commercial presence in Viet Nam, must provide proof that the foreign worker has engaged in activities of the foreign enterprise.

8. Application file for issuance of work permits for some special cases

a) For foreign workers who have been issued with a work permit which is still valid and work for another employer in the same position stated in the work permit as prescribed by law, application file for a work permit shall include documents specified in Clauses 1, 5, 6 and 7 of this Article and the issued work permit or certified copy of the work permit;

b) For foreign workers who have been issued with a work permit which is still valid and work in a position different from the job title stated in the work permit as prescribed by law, but do not change the employer, application file for a work permit shall include documents specified in Clauses 1, 4, 5, 6 and 7 of this Article and the issued work permit or certified copy of the work permit;

c) For foreign workers who have been issued with a work permit which has expired as prescribed under Article 174 of the Labor Code having demand to continue to work at the same position stated in the work permit as stipulated by law, application file for issuance of a work permit shall include documents specified in Clauses 1, 2, 3, 5, 6 and 7 of this Article and proof of work permit revocation;

d) In case foreign workers prescribed under Points a, b and c of this Clause have been issued with a work permit as stipulated under Decree No. 102/2013/ND-CP dated September 5, 2013 of the Government detailing the implementation of some articles of the Labor Code on foreign workers in Viet Nam, they must provide proof to meet the requirements stipulated in Clause 3 or 4 or 5 of Article 3 of this Decree.

9. Consularization and notarization of documents

a) The documents specified in Clauses 2, 3 and 4 of this Article must be 01 photocopy to be collated with the original or 01 certified copy.

Foreign documents must be consularized, unless they are exempt from consularization in accordance with international treaties to which the Socialist Republic of Viet Nam and the related foreign country are members or reciprocity principle in accordance with the law. These documents must be translated into Vietnamese and certified in accordance with regulations of Viet Nam.

b) The documents specified in Clause 7 of this Article must be 01 photocopy to be collated with the original or 01 certified copy. Foreign documents are exempt from consularization, but must be translated into Vietnamese and certified in accordance with regulations of Viet Nam.

Article 11. Validity period of a work permit

The validity period of a work permit is equal to the duration of one of the following cases as far as those periods are less than 02 years:

1. Duration of the labor contract to be signed;

2. Duration of assignment in Viet Nam decided by foreign parties;

3. Duration of the contract or agreement between Vietnamese and foreign partners;

4. Duration of the service contract or agreement between Vietnamese and foreign partners;

5. Duration specified in documents of the service provider appointing the foreign worker to come to Viet Nam to negotiate on service provision;

6. Duration specified in certificates of foreign non-governmental organizations and international organizations permitted to operate in accordance with the law of Viet Nam;

7. Duration specified in documents of the service provider appointing the foreign worker to come to Viet Nam to establish a commercial presence of the service provider;

8. Duration specified in documents proving that the foreign worker is permitted to engage in activities of the foreign enterprise which has established a commercial presence in Viet Nam.

Article 12. Procedure for issuance of a work permit

1. At least 15 working days before the date the foreign worker is expected to begin working for the employer, the employer must file an application for issuance of a work permit to the Department Labor - Invalids and Social Affairs where the foreign worker is expected to work.

2. Within 07 working days from the date of receipt of an application for issuance of a work permit, the Department of Labor - Invalids and Social Affairs must issue a work permit for the foreign worker using forms the prescribed by the Ministry of Labor - Invalids and Social Affairs. In case a work permit is not granted, it must issue a written reply clearly stating the reason.

3. For foreign workers stipulated in Point a, Clause 1 of Article 2 of this Decree, after issuance of a work permit, the employer and the foreign worker must sign a written labor contract in accordance with the labor law of Viet Nam before the expected date he or she starts working for the employer.

Within 05 working days from the date of signing the labor contract, the employer must send a copy of the signed labor contract to the Department of Labor - Invalids and Social Affairs which has issued the work permit.

Section 4.

REISSUANCE OF OF WORK PERMITS

Article 13. Cases eligible for reissuance of work permits

1. Work permit within validity period is lost, damaged or content of the work permit was changed, except for cases stipulated under Clause 8 of Article 10 of this Decree.

2. Work permit valid for at least 05 days but not more than 45 days.

Article 14. Application file for reissuance of a work permit

1. Request for reissuance of a work permit from the employer in accordance with regulations of the Ministry of Labor - Invalids and Social Affairs.

2. 02 color photos (size 4cm x 6cm, white background, front, bareheaded, without sunglasses), taken within 06 months prior to the application date.

3. The work permit issued previously in cases where:

a) The work permit is lost as stipulated under Clause 1 of Article 13 of this Decree, confirmation by the commune-level police department of Viet Nam or foreign competent authority in accordance with the law shall be required;

b) Content in the work permit is changed as stipulated under Clause 1 of Article 13 of this Decree, evidence shall be required;

c) The work permit is valid for at least 05 days but not more than 45 days as stipulated under Clause 2 of Article 13 of this Decree, it requires a health certificate or medical examination certificate as stipulated under Clause 2 of Article 10 of this Decree and one of the documents specified in Clause 7 of Article 10 of this Decree;

d) The work permit has been issued for the foreign worker pursuant to Decree No. 102/2013/ND-CP dated September 5, 2013 of the Government detailing the implementation of some articles of the Labor Code on foreign workers in Viet Nam, evidence to prove eligibility for requirements stipulated in Clause 3 or 4 or 5 of Article 3 of this Decree shall be required.

4. Documents as stipulated under Clause 3 of this Article include 01 photocopy to be collated with the original or 01 certified copy. Foreign documents are exempt from consularization, but must be translated into Vietnamese and certified in accordance with the law of Viet Nam.

Article 15. Procedure for reissuance of a work permit

1. Where the work permit is reissued as stipulated under Clause 2 of Article 13 of this Decree, within at least 05 days but not more than 45 days before the work permit expires, the employer must file an application for reissuance of a work permit to the Department of Labor - Invalids and Social Affairs which has issued the work permit.

2. Within 03 working days from the date of receipt of an application for reissuance of a work permit, the Department of Labor - Invalids and Social Affairs shall reissue a work permit. In case of refusal for reissuance of a work permit, a written reply clearly stating the reasons shall be issued.

3. For foreign workers stipulated under Point a Clause 1 of Article 2 of this Decree, after reissuance of the work permit, the employer and the foreign worker must sign a written labor contract in accordance with labor law of Viet Nam prior to the expected working date for the employer.

Within 05 working days from the date of signing the labor contract, the employer must send a signed copy of the labor contract to the Department of Labor - Invalids and Social Affairs which has issued the work permit.

Article 16. Validity period of a reissued work permit

1. The validity period of a work permit reissued under Clause 1 of Article 13 of this Decree is equal to the duration of the first issued work permit minus the period of time the foreign worker has worked up to the date the application for  reissuance of the work permit is submitted.

2. The validity period of a work permit reissued under Clause 2 of Article 13 of this Decree is equal to the duration of one of the cases provided for in Article 11 of this Decree as far as those periods are less than 02 years.

Section 5

REVOCATION OF WORK PERMITS

EXPULSION OF FOREIGN WORKERS

Article 17. Revocation of a work permit

1. Work permits lapse under Clauses 1, 2, 3, 4, 5, 7 and 8 of Article 174 of the Labor Code.

2. Work permits revoked because the employer or the foreign worker does not comply with this Decree.

3. Procedure for revocation of a work permit

a) For cases provided in Clause 1 of this Article, the employer shall revoke the work permit of the foreign worker to return to the Department of Labor - Invalids and Social Affairs which has issued the work permit;

b) For cases provided in Clause 2 of this Article, the Director of the Department of Labor - Invalids and Social Affairs which has issued the work permit shall issue a revocation decision and notify the employer to revoke the work permit of the foreign worker and return to the Department of Labor - Invalids and Social Affairs;

c) The Department of Labor - Invalids and Social Affairs shall issue a written document confirming revocation of work permit to the employer.

4. The Ministry of Labor - Invalids and Social Affairs shall detail procedures for revocation of work permits.

Article 18. Expulsion of foreign workers

1. Foreign workers in Viet Nam without a work permit or written document confirming exemption from work permit as stipulated under this Decree (hereinafter abbreviated as foreign workers in Viet Nam without work permits) shall be deported under the Viet Nam law.

2. Departments of Labor - Invalids and Social Affairs shall send police departments request for expulsion for cases of foreign workers in Viet Nam without work permits.

Where an organization and individual detect a foreigner working in Viet Nam without a work permit, it must notify the Department of Labor - Invalids and Social Affairs, where he/she works.

3. Within 15 working days from the date confirming the foreigner working in Viet Nam without a work permit, the Department of Labor - Invalids and Social Affairs shall request the police department to deport that foreign worker.

Chapter III

TERMS OF ENFORCEMENT

Article 19. Effectiveness

1. This Decree shall take effect as from April 1, 2016.

2. Decree No. 102/2013 / ND-CP dated September 5, 2013 of the Government detailing the implementation of some articles of the Labor Code of foreign workers in Viet Nam; Point a Section 4 of Resolution No. 47/NQ-CP dated July 8, 2014 of the Government are repealed from the date this Decree comes into full force and effect.

3. Transitional provisions

a) Regarding paperwork including written approval of the use of foreign workers, written documents confirming exemption from work permits and work permits which have been issued pursuant to Decree No. 102/2013/ND-CP dated September 5, 2013 of the Government detailing the implementation of some articles of the Labor Code on foreign workers in Viet Nam, shall be valid until their expiration dates.

b) Where employers have submitted reports explaining the demand for foreign workers; application file for issuance and re-issuance of work permits or written documents confirming exemption from work permits granted prior to the date this Decree takes effect shall comply with Decree No. 102/2013/ND-CP dated September 5, 2013 of the Government detailing the implementation of some articles of the Labor Code on foreign workers in Viet Nam.

Article 20. Responsibility for implementation

1. Ministry of Labor - Invalids and Social Affairs shall:

a) Provide guidelines for implementation of this Decree;

b) Approve the request for use of foreign workers; confirm cases exempt from work permits; issue and reissue work permits; revoke work permits; confirm revocation of work permits and request police departments to deport foreign workers in Viet Nam without work permits for foreigners working for employers stipulated under Sub-clauses d, dd, e, g and l, Clause 2 of Article 2 of this Decree;

c) Direct, supervise, inspect and examine the implementation of the law on foreign workers in Viet Nam.

2. The Ministry of Public Security shall be responsible for:

a) Guiding the authority and procedures on deportation of foreign workers in Viet Nam without work permits;

b) Guiding the issuance of visas to foreign workers related to the issuance and re-issuance of work permits; confirm cases exempt from work permits;

c) Provide quarter information on foreign workers getting visas to work for agencies, organizations and enterprises to the Ministry of Labor - Invalids and Social Affairs.

3. The Ministry of Finance shall be responsible for providing guidelines on fees for issuance and reissuance of work permits, confirmation of work permit exemption for the cases stipulated under Point b, Clause 1 of this Article.

4. The Ministry of Industry and Trade shall be responsible for providing guidelines on principles and procedures to determine foreign workers transferring within an enterprise operating in 11 service sectors in the list of service sectors committed by Viet Nam with the World Trade Organization.

5. Ministers, heads of ministerial-level agencies, heads of government agencies, Chairmen of provincial-level People's Committees shall be responsible for the implementation of this Decree./.