VIETNAM - New Decree on Management of Foreign National Employees
Vietnam’s Ministry of Labour, Invalids and Social Affairs (MOLISA) has issued a decree (102/2013/ND-CP) defining the implementation of the new labour code as it pertains to foreign nationals working in Vietnam.
Effective 1 November 2013, the key points of the decree are as follows:
New Work Permit Exemption Categories
New categories of foreign nationals working in Vietnam that will be exempt from obtaining a work permit include:
- Teachers assigned to international universities;
- Holders of Masters Degrees assigned to teach or research at universities or colleges for under 30 days;
- Those working within the framework of an international agreement between central authorities and political/religious organisations.
Moreover, notarisation and legalisation of documents issued overseas will no longer be required for work permit exemptions., and the Labour Department is obliged to return a response to the exemption application within three working days of receiving the application.
To date, applying for a work permit exemption has been administrative and therefore very rarely used. This may now change, with the new time frame and the less onerous documentation requirements. However, note that even if a work permit is not required, the applicant will still need to provide a police clearance certificate, health check, evidence of qualifications and so on.
Immigration approval can now be given to "Technical Workers”. Previously, the law allowed for work permission to be granted only to employees who could be categorised as a Manager, Executive or Expert.
Technical Workers must give evidence of their qualifications in a technical field (at least one year of study or training), and at least three years experience in a field related to the position to be carried out in Vietnam.
Reporting Demand for Employing Foreign Nationals
The Decree confirms that the reporting requirement will remain in place. Each year, and during the year if any changes are made, employers in Vietnam must seek approval for hiring foreign nationals for each specific position for which Vietnamese nationals cannot meet the employer’s demand. Reports must be made to the People’s Committee where the company’s head office is located.
Additional Documents for Work Permit Applications
Additional documents will be required, such as an approval letter, issued by the Chairman of the People’s Committee, allowing the employment of foreign nationals in specific positions; and evidence that an internal transferee has indeed previously worked for the company for at least twelve months.
The new decree does not mention the previous requirement to place a job advertisement for local hire positions. However, there may be inconsistencies between labour departments around the country with regards to the application of this requirement.
Work Permit Renewals
As previously, employers must submit work permit renewal applications at least five days (but not more than 15 days) before the date the work permit expires.
Renewal applications must include the work permit expiry date; a new medical check and medical certificate; the approval letter issued by the Chairman of People’s Committee on the use of foreign nationals; and a new assignment letter or service contract (depending on each case) to justify the assignment.
- Note that some new positions will be exempt from the work permit requirement, from 1 November 2013, and that some document requirements for exemptions will be relaxed.
- Note that “Technical Workers” may now be assigned to work in Vietnam.
- Ensure that annual reports are filed on the demand for foreign national employees.
- Note that positions may still have be advertised or recruited for via a professional recruitment agency, depending on the interpretation of the local labour department.
- Ensure that all new document requirements for work permit applications and renewals are met.
=====This news alert was prepared using information provided by Resident Vietnam