Guide to grant of work permit to foreigners

23:05 - 13/12/2021

Work permit is a document issued by Vietnamese competent authorities to foreign employee when meeting certain conditions as stipulated by law

1. What is work permit for foreign employee?

Work permit for foreigners working in Viet Nam is a document issued by Vietnamese competent authorities to foreign employee who meets certain conditions as stipulated by law.

Foreign employee who is granted work permit is considered to work legally and have their legitimate rights and interests protected in labor relations.

2. According to Labor Code 2019, Article 151.1., conditions for foreign workers working in Viet Nam are the followings:

- To be at least 18 years of age and have full civil act capacity.

- To have technical, professional or occupational qualifications and experience, and suitable health as stipulated by the Minister of Health.

- Must not be a person who is serving a sentence or has not yet had their criminal record repealed or is subject to criminal prosecution in accordance with foreign or Vietnamese law.

- Has a work permit issued by an authorized state management agency of Viet Nam, except for cases stipulated in Article 154 of the Code.

Foreign workers working in Viet Nam must comply with the above-mentioned conditions and the Code of Labor of Viet Nam, and shall be protected by Vietnamese law, unless otherwise provided for by international treaties of which the Socialist Republic of Viet Nam is a party.

3. Who is subject to work permit granting in Viet Nam

Subject to be able to apply for work permit has been defined clearly in Decree 152/2020/ND-CP on the Work permit for foreign employee in Viet Nam. They are foreigners who enter Viet Nam for the following purposes:

- Executing the labor contracts;

- Performing intra-company transfer program;

- Executing contracts or agreements on business, commerce, finance, banking, insurance, science and technology, culture, sports, education, vocational training, and health;

- Providing services under contracts;

- Offering services;

- Working for foreign non-governmental organizations or international organizations in Viet Nam that have been granted operating licenses under the Viet Nam law;

- Working as managers, chief executive officers, experts, technicians;

- Participating in the execution of bid contracts and projects in Viet Nam.

In addition, the law also stipulates those who are qualified to sponsor a work permit for foreign employee are the following:

- Enterprises operating under the Enterprise Law, Investment Law or international treaties to which the Socialist Republic of Viet Nam is a party;

- Contractors participating in bids and performing contracts;

- Representative offices, branches of enterprises, agencies and organizations licensed to be established by competent authorities;

- State agencies, political organizations, socio-political organizations, socio-political-professional organizations, social organizations, socio-professional organizations;

- A foreign non-governmental organization has been granted license by a competent Vietnamese authority in accordance with the provisions of Vietnamese law;

- Non-business organizations and educational institutions established under the provision of Vietnamese law;

- International organizations, offices of foreign projects in Viet Nam; agencies and organizations allowed to be established and operated by the Government, Prime Minister, ministries and sectors in accordance with Vietnamese law;

- The operating office of the foreign investors under business cooperation contract or of foreign contractors is licensed to operate under the provision of Vietnamese law;

- Organizations operate in the area of law in Viet Nam under the provision of Vietnamese law;

- Cooperatives and unions of cooperatives established and operated under the Code of Cooperatives;

- Business households and individuals are allowed to do business under the provision of Vietnamese law.

4. Conditions for issuance of work permits

According to regulations, in order to apply for work permit, a foreign employee must fully meet the following conditions:

- Foreign employee must have his/her full capacity for civil acts as prescribed by law.

- Foreign employee must demonstrate his/her health conditions are suitable for the requirement of the vacant.

- Foreign employee must not be criminals or undergoing criminal prosecution in accordance with Vietnamese law and external law.

- Foreign employee must be manager, chief of operation, expert or technician and must be able to provide document proving status in accordance with Decree 152/2020/NĐ-CP - Article 3 as follow:

For Foreign Expert:

+ Having a bachelor's degree or higher or equivalent and have at least 3 years of experience working in the trained field relevant to the job position the foreign worker is expected to work for in Viet Nam;

+ Having at least 5 years of experience and practice certificate relevant to the job the foreign worker is expected to work in Viet Nam, with stamp of consular legalization;

For technical worker:

+ An individual that has been training in a technical field or another major for at least one year and has been working for at least three years in their trained field, with stamp of consular legalization; or

+ Having at least five years’ experience related to the job for which they will be employed in Viet Nam.

For an executive, manager:

+ Decision for Appointment;

+ Having at least five years’ experience related to the job for which they will be employed in Viet Nam.

5. Documents required for a work permit application include:

- An application form for a work permit of the employer is specified in form No.11/PL1 Appendix attached with Decree No.152/2020/ND-CP.

- Fitness to work certificate issued by a foreign or Vietnamese competent health facility is issued within 12 months before the submission date of the application or the certificate as specified in regulations of the Minister of Health.

- The criminal record or certificate confirms that the foreign worker is not a criminal or liable to criminal prosecution issued by the foreign competent agency. This record or certificate shall be issued within 06 months from the date of issuance to the date of application.

- It is required to provide one of the following documents in case foreign employee is a manager, chief executive officer, expert, or technician:

Documents confirm that the foreign worker is a manager, executive as stipulated by law and regulations;

Documents confirm that the foreign worker is an expert, technical worker including diplomas, certificates, certification of foreign agency, organization, enterprise in respect of some years’ experience of the expert or technical worker.

Documents confirm that the foreign worker is an experienced foreign football player or an international transfer certificate (ITC) issued to the foreign football player or a document of the Vietnam Football Federation which certifies temporary or official registration of a player of a club affiliated to Viet Nam Football Federation.

Documents confirm that the foreign worker has a pilot license issued by a Vietnamese competent authority, or issued by a foreign competent authority and validated by the Vietnamese competent authority, in case of a foreign pilot; or a certificate of eligibility for working on aircraft issued by the Ministry of Transport, in case of a flight attendant.

Documents confirm that the foreign worker has a certificate of competency in aviation maintenance issued by a Vietnamese competent authority, or issued by a foreign competent authority and validated by the Vietnamese competent authority, in the case of a foreign worker who performs maintenance on aircraft.

Documents confirm that the foreign worker has a certificate of competency or validation of a certificate of competence issued by Vietnamese competent authority to a foreign crew member of ship/vessel.

Documents confirm that the foreign worker has a certificate of high achievement in sports which is certified by the Ministry of Culture, Sports and Tourism, in case of a sports coach or at least one of the following certificates: AFC (Asian Football Federation) football coaching level B certificate or AFC goalkeeping coaching level 1 certificate or AFC fitness coaching level 1 certificate or AFC Futsal coaching level 1 certificate or any equivalent foreign certificate accredited by AFC.

Documents confirm that the foreign worker has a diploma issued by the competent authority following qualifications or standard qualifications in the Law on Education, the Law on Higher Education, the Law on Vocational Education and Regulation on organization and operation of foreign language and computer training centers issued by the Minister of Education and Training.

- 02 colored photos (4cm×6cm, with white background, frontal side, bareheaded, and no colored glasses). Photos shall be taken within 06 months of the date of application.

- An acceptance of demand for foreign workers, unless it is not required.

- 01 notarized copies of the valid passport.

- Documents relevant to the foreign worker:

For a foreign worker performing an intra-company transfer program, he/she must obtain a document issued by the foreign company to send him/her to work at a commercial presence of that company in Vietnam’s territory and a document justifying that he/she has been recruited by the foreign company at least 12 consecutive months before the transfer date;

For a foreign worker executing contracts or agreements on business, commerce, finance, banking, insurance, science and technology, culture, sports, education, vocational training, and health, an agreement or arrangement concluded between Vietnamese and foreign partners is required, which specifies the arrangement about sending foreign workers to Viet Nam;

For a foreign worker providing services under contracts, a service contract concluded between Vietnamese and foreign partner is required and a document justifying that he/she has worked for the foreign company that has no commercial presence in Vie Nam for at least 2 years;

For a foreign worker doing offer services, he/she must obtain a document issued by the service provider to send him/her to Viet Nam to negotiate the service provision;

For a foreign worker working for foreign non-governmental organizations or international organizations in Viet Nam that have been granted operating licenses following the Viet Nam law, he/she must obtain both a document that sends him/her to work for a foreign non-governmental organization or international organization in Viet Nam under the provision of Vietnamese law;

For a foreign worker working as a manager, chief executive officers, experts, technicians, he/she must obtain a document issued by the foreign enterprise, agency, or organization to send him/her to work in Vietnam that is conformable with the expected job position.

6. Authorities issued Work Permit:

According to Circular 40/ 2016/TT-BLĐTBXH - Article 3, the competent authorities for issuing work permits are:

Ministry of Labor – Invalids and Social Affairs

Provincial/Municipal Department of Labor – Invalids and Social Affairs

The issuance of the work permit is based on the type of enterprise or organization where the foreign employee works.

7. Work permit procedure for foreign employee in Viet Nam

7.1. Request for acceptance of hiring foreign employee

At least 30 days before the commencement of employment, Employers (except bidders) that require hiring a foreign employee must submit a written request to the Ministry of Labor, War Invalids and Social Affairs or Chairman of the People’s Committee at provincial level in order to report its demand for foreign employee.

According to the new regulations stipulated by Circular 23/2017/TT-BLDTBXH effective from October 2, 2017, employers can also submit the request via web portal at:

http://dvc.vieclamvietnam.gov.vn

- The employer signs up an account at the above-mentioned address and submits the application with the established account, within at least 20 days before the expected date of the commencement of employment;

- Within 12 days from the date of reception of the valid application and report explaining the demand for hiring foreign employee, the competent authority shall send the results via email of the employer. If the submitted application is not valid, the competent authority will issue a notice for correction.

- After receiving the approval for allowing to hire foreign employee, the employer directly submits or sends by post the original documents to the competent authority. Within 08 hours from the reception of the original application, the competent authority shall return the original approval result to the employer.

- The dossier includes: Form of Explanation for the demand of hiring foreign employee (according to the form of Circular 40/2016/TT-BLDTBXH).

7.2. Submit application for work permit for foreign employee

Application for a work permit should be submitted to the Ministry of Labor, Invalids and Social Affairs or the Department of Labor, War Invalids and Social Affairs in the province where the foreign employee is expected to work at least 15 days before the commencement of employment.

If the application is complete and valid, the applicant will pay the work permit fee and get an appointment for the date of returning the results. If not, the applicant will be notified for supplement details of his/her application.

The processing time for a work permit takes usually 5 working days from the date of the reception of a complete and valid application.

7.3. Get the result

Within 5 working days, the Ministry of Labor, Invalids and Social Affairs or the Department of Labor, Invalids and Social Affairs shall issue work permits to the applicant in accordance with the form 12/PLI issued as index of Decree 152/2020 /ND-CP.

In case of refusal, the Ministry or Department of Labor, War Invalids and Social Affairs shall inform in writing to state the reason of refusal.

8. Work permit fees

Depending on where proceeding the procedures for granting a work permit to an employee, the fee will be regulated differently (according to Circular 250/2016/TT-BTC).

For example, in Hanoi, the fee for applying for new issuance of work permit is VND 400,000, in Ho Chi Minh City is VND 600,000 for the same category. The current highest fee is VND 1,000,000. This fee may change from time to time depending on local regulations.

Foreigners will not have to pay the fee for applying for a work permit, the employer should cover the expense.

9. Work permit duration

Article 10 of Decree 152/2020/NĐ-CP clearly stipulates that the duration of a work permit shall be granted according to the period of one of the following cases, but shall not exceed 02 years:

- The duration of the labor contract expected to be signed;

- The duration of the foreign party sending foreign employee to work in Viet Nam;

- The duration of the contract or agreement signed between the Vietnamese side and its foreign partners;

- The duration of the contract or service provision agreement signed between the Vietnamese and foreign partners;

- The limitation of serving time stated in the document of the service provider sending foreign employee into Viet Nam to negotiate service provision;

- The limitation of serving time has been specified in the certificate of the foreign non-governmental organization or international organization allowed to operate in accordance with the provisions of Vietnamese law;

- The limitation of serving time in the document of the service supplier sending the foreign employee to Viet Nam to establish commercial presence of the service provider;

- The limitation of serving time in the document proving that the foreign employee is allowed to participate in the operation of a foreign enterprise that has established a commercial presence in Viet Nam;

- Limitation of serving time in the written approval to use foreign employee.

Hereinabove is information related to work permit for foreign employee in Viet Nam. This information shall be updated regularly in case of changes.

10. What happens if you don’t have work permit?

10.1. For enterprise

Employers who employ foreign workers in Vietnam without work permits or written confirmations of their exemption from work permit requirements, or employs foreign workers holding expired work permits or written confirmations of exemption from work permit requirements shall be implied:

- A fine from VND 30,000,000 to VND 45,000,000 if the violation involves 01 – 10 workers;

- A fine From VND 45,000,000 to VND 60,000,000 if the violation involves 11 – 20 workers;

- A fine From VND 60,000,000 to VND 75,000,000 if the violation involves 21 or more workers.

10.2. For employee

A fine of between 15 and 25 million dong shall be imposed on foreign employee who commits one of the following acts:

- Working without work permit or without written certification showing that he/she is not subject to apply for work permit;

- Using an expired work permit or an invalid written certification of not being subject to apply for work permit.

In addition to fines, foreign workers are also expelled from Viet Nam without a work permit or a written certification of not being subject to apply for work permit./.

source: http://news.chinhphu.vn/

Guide to grant of work permit to foreigners

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