Generally speaking, any foreigner coming to Vietnam to work for a company or an organization established in the country is required to be granted a “Work Permit” (“WP”) or a “WP exemption certificate” by the competent authorities according to current Decree 102/2013/ND-CP providing detailed guidelines for implementation of some Articles of the prevailing Labor Code regarding foreign workers working in Vietnam (“Decree 102”).
In an effort to clarify the current legal scheme, the new Decree 11/2016/ND-CP (“Decree 11”) applicable from 1st of April 2016 brings many changes and improvements to the WP regulation in Vietnam, relating to the definition of manager, expert, technician, exemptions of WP and procedures.
A. WP exemption when the employee is transferred internally within an enterprise/group
1. Conditions applicable to the company
– Being established in Vietnam and operate in one of the eleven fields within the WTO Commitments.
– Having the need on use of foreign workers.
2. Conditions applicable to foreign employees
The employee shall be recruited by foreign enterprise at least 12 months prior to the transfer.
– Manager / CEO / Executive Director:
Managers or persons who hold the vice-position of such managers.
Managing director means persons who hold the highest managing position or the head of the company and directly run a department/unit of enterprise.
A foreigner recognized as an expert in writing by a foreign organization or enterprise, or;
A foreign worker with qualifications at the level of master’s degree or higher or similar level, and who has at least 3 years (instead of 5 years previously) working experience in the specialty in which he or she was trained and suitable for the position which he/she will take in Vietnam.
A foreign worker who has received at least 1 year’s training in his or her technical specialty or another specialty and who has at least three 3 years- working experience in the specialty in which he/she was trained.
The duration of WP exemption certificate cannot exceed 2 years.
B. A lighter regime for short term assignment in Vietnam
Decree 11 details that the employer is not required any more neither to get approval from the provincial level People’s Committee nor to report to the said authority regarding its need on use of foreign employees in the following situations (not exhaustive):
– Foreign citizen enters Vietnam for a period of time of less than 3 months for the purpose of service proposal.
– Foreign citizen enters Vietnam with the term of less than 3 months in order to resolve an incident breakdown or technically or technologically complex situation arising and affecting, or with the risk of affecting production or business with which Vietnamese experts or foreign experts currently in Vietnam are unable to deal.
– Foreign works enter Vietnam to work at the position of expert, manager, CEO or technician with the term of less than 30 days or total working time under 90 days per year.
C. WP in special cases: some precisions welcome!
Decree 102 contained no provisions on the following special cases and, consequently, the employer and foreign worker faced difficulties in obtaining WP. Therefore, Decree 11 detailed the conditions and required documents for issuance or reissuance of WP in some special cases, such as:
– The procedure applicable to employee who was granted a WP still in the valid term but changing of employer, at the same position stated in the WP.
– The procedure applicable to the foreigner who was granted a WP still in the valid term but changing of position for the same employee.
D. Legalization or certification of required documents, processing
Moreover, article 9 of the Decree 11 stipulates the detailed guidelines regarding catalogue of documents which must be legalized overseas, except when there is an exemption of legalization under an international treaty of which Vietnam is a member or when it is allowed to provide a photocopy together with original copies or certified copies.
In principle, foreign documents must be translated into Vietnamese and the translation must be certified by the competent authorities in accordance with the laws of Vietnam.
The validity of some documents is extended (healthcare certificate are valid for 12 months) and the processing time for issuance of WP is shortened from 10 to 7 working day, counting from submitting complete application dossier.
E. Withdrawal of WP
In comparison with the previous Decree 102, Decree 11 precisely stipulates the procedure and competence for withdrawal of the granted WP. It is reminded that the Department of Labor and War Invalids and Social Affairs is entitled to withdraw the WP when the foreign worker or the employer fails to comply with the provisions of Decree 11.
It is noted that this article does not constitute a legal advice and only constitutes a public information on a general matter. Feel free to contact us for further detailed information for any specific case.