Child Adoption by Foreigners

Presently, there are many foreign people who want to adopt a Vietnamese. Besides, the law of Vietnam also has strict regulations for child adoption by foreigners.

First is the adoption of specific children by foreigners. The Adoption Act 2010 defined that the Vietnamese residing abroad and foreigners permanently residing overseas are allowed to adopt specific child in the following cases:

-As stepfather or stepmother of the adopted person;

-As uncle or aunt of the adopted person;

-Has adopted children who are siblings of the children that are adopting;

-Adopt children with disabilities, HIV / AIDS or other fatal diseases;

-As foreigners who are working and studying in Vietnam for at least 01 years.

In which the 4th case is a special case that is encouraged by the State with simpler procedures than other cases.

The order and procedures for adoption of child will be conducted as follows:

The profile of child adopting people includes:

+ Application for adoption by name;

+ A copy of the passport or replacing document that have the same value;

+ The written permission for child adoption in Vietnam;

+ The psychological and family investigation;

+ Documents certifying health status;

+ Documents certifying income and assets;

+ Judicial record;

+ Documents certifying marital status;

+ Documents evidencing eligible for child adoption by name.

+ In case of specific child adoption for children over 5 years old and two or more siblings, the record must clearly state the psychological preparation plan for children, preparing conditions for children to integrate into the new family, culture and society environments.

The above documents are issued and certified by the competent authority where the child adopting people permanently reside. To be certified by the State of Vietnam, it should be certified through the procedure of consular legalization.

The profile of children to be adopted includes:

+ Birth certificate

+ Certification of health issued by the district or higher health authorities;

+ Two full body and looking straight images, which was taken within 06 months

+ Documents about the noteworthy characteristics, preferences and habits of children.

These papers are issued by nurturing organizations or natural parents / guardians of children.

Profiles of the child adopting person and the child being adopted are submitted directly at the Bureau for adoption. The case that cannot submit the profile directly at the Bureau for adoption, the child adopting person has to authorize by written document their relatives residing in Vietnam to submit the profile at the Bureau for adoption or send the profile through the post office in the form of guarantees.

In the procedure of adoption of specific children with disabilities, HIV / AIDS or suffering from serious diseases, Vietnam law allows the free implementation of procedures to find alternative families and introduce children for adoption. The meaning of this is to shorten the procedure, creating conditions for these children to be adopted and nurtured in an enabling environment.

After receipt of the application for adoption, Bureau of Adoption will check and appraisal the profile to determine that the child adopting people was certified by the competent authorities of the country where he or she resides that he or she satisfies the eligibility for child adoption under the laws of that country and under the laws of Vietnam.

Towards the child to be adopted, after receiving a profile from natural parents or guardians of the child, the Bureau for adoption has the responsibility to inspect the children's record, conduct consultation with the natural father / mother or the guardians of the child about the child adoption for foreigners during 07 working days.

Within 07 working days from the expiration date of changing opinion about the child adoption for foreigner of the natural parents or guardians of children, if children are eligible to be adopted by foreigner, who are entitled to adoption by name, Bureau for adoption will report the Department of Justice, Department of Justice will certify by document that the children eligible for adoption by foreigner. Finally, the Department of Justice submitted to the Provincial People’s Committee decided to allow the foreigner to adopt the children.

Second is the adoption of a child not by name with foreign elements. The adoption of child not by name with foreign element is the case when Vietnamese residing abroad, foreigners reside in the country in which that country is a member of international treaties on child adoption with Vietnam and adopt Vietnamese children; Vietnam citizens residing in Vietnam adopt foreign children; foreigners permanently residing in Vietnam adopt Vietnamese children.

For the adoption case that not by name, the order and procedures will include:

+ The profile of people that want to adopt children should be submitted to the Bureau for adoption through the adoption agencies of that country that are licensed to operate in Vietnam. If that country does not have adoption agencies licensed to operate in Vietnam, the adoption profile should be submitted to the Bureau for adoption through diplomatic representative offices or consular offices of that country in Vietnam.

+ The profile of children being adopted will be submitted by natural parents or guardians of the children at the Bureau for adoption.

+ The Bureau for adoption receives, inspect and evaluate the profile of the child adopting people and children being adopted.

Compared to the case of adoption by name with children with disabilities, HIV / AIDS or other serious diseases, the case of adoption not by name, the Department of Justice has to implement the procedure to find alternative families and introduce children for adoption. The meaning of these two procedures is to encourage local Vietnamese permanent residents in Vietnam to adopt Vietnamese children, enabling Vietnamese children to live, learn and develop in their own homeland. Only when the above procedure to find alternative families and introduce children for adoption have finished without any local people wanting to adopt those children, the Department of Justice will consider deciding for the children to be adopted by foreigners.

The notice period to find an alternative family is regulated as 60 days, during this period, if any Vietnamese wants to adopt children, they should contact the Commune People’s Committee where children reside to consider and settle the adoption. If time runs out 60 days, the Department of Justice has to prepare a list of children who need to find alternative families and submit to the Ministry of Justice.

On the other hand, within 30 days after receiving a profile from foreigners that want to adopt Vietnamese children, the Department of Justice has to review and introduce children to be adopted on the basis of children with no domestic adoption. After introducing children to be adopted, the Department of Justice reported the Provincial People’s Committee for comments.

The case that the Provincial People’s Committee disagrees, they have to send a written document stating the reasons and submit it to the Department of Justice. On the other hand, the case that the Provincial People’s Committee agrees, within 07 working days, the Provincial People’s Committee decided for children for abroad adoption.

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Change of Headquarter of Da Nang Immigration Department

As of August 2018, according to the project for rearranging the administrative function of the Government and the Ministry of Public Security, Immigration Department of Da Nang has been merged into Immigration Department of Hanoi. Therefore, the procedures related to entry, exit of Vietnamese citizens and foreigners such as issuing visa, exempting visa, temporary residence card, permanent residence in Da Nang shall be implemented in Immigration Department of Hanoi.

Relating to the dossier and procedures carried out at the Immigration Department of Da Nang such as issuing passport, temporary residence card, permanent residence, the application shall be submitted to Immigration Department of Da Nang. Thereafter, this agency shall transfer such dossier to Immigration Department of Hanoi for approval. Finally, the results shall be returned to Da Nang.

For most of immigration procedures which used to be implemented in Immigration Department of Da Nang, such as issuing visas, the applicant shall submit the dossier directly to Immigration Department of Hanoi. The change could possibly add up processing time, and inconvenience if there is requirement for re-submission, amendment and supplement.

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Challenges in Preparing Documents for Representative Office Application

The representative office (RO) is a popular foreign investment vehicle which investors utilize when wishing to enter the Vietnamese market without committing too much investment. The representative office could help the foreign entity to hire local employees to carry out market research, business promotion.

A foreign company wishes to establish a representative office in Vietnam must submit an application dossier for a license to the Provincial Department of Industry and Trade (DIT).

However, there are cases where the government agencies receiving the application would be different from the department of industry and trade depending on the business lines carried out by the foreign entity.

Firstly, the trade service is bound in Vietnam’s Commitment in trade service in WTO but there are no existing specialized legislative documents:

When the trade service which the foreign entity provides does not fall under areas prescribed by specialized legislative documents in Vietnam, the licensing agency shall submit a written request for directions to the relevant ministries for opinions. The foreign entity shall wait for at least 15 working days for receiving a written notice of whether the license for establishment of the representative office is granted or rejected. This process not only extends the duration of establishment of a representative office but also raises risk of rejection.

Secondly, the trade service is not yet bound in Vietnam’s Commitment:

Where the scope of operation of the representative office is inconsistent with Vietnam’s commitments or the foreign trader is not located in the country or territory being party to treaties to which Vietnam is a signatory, there is an extra process in registration of representative office. The representative office shall be approved by relevant ministers, heads of ministerial agencies for establishment of the representative office.

Thirdly, trade services are supplied in foreign countries, but such does not exist in Vietnam

The foreign entity has to apply codes as follows to Vietnam standard industrial classification system or CPC. If the foreign entity can not define a code, it is merely impossible to register the representative office.

In most of the cases, the foreign entity should consult with a law firms in Vietnam whom lawyers have expertise in WTO laws, law on investment and experience in working with Vietnam state authorities, to prepare application right at the start and be ready to challenge the authorities when required to protect the best interests of the clients.

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Cases that Foreigners Do Not Have to Apply for Work Permits

Pursuant to Decree No. 11/2016/ND-CP and 140/2018/NĐ-CP , the below cases of foreigner will not have to apply for work permit in Vietnam:

-As capital contributing members or the owner of a limited liability company.

-As member of the Managing Board of the joint stock company.

-As Head of the representative office, project of international organizations, non-governmental organizations in Vietnam.

-Entry into Vietnam for less than 03 months to carry out the service offering.

-Entry into Vietnam for less than 03 months to handle the incidents, technical situations and complicated technology arising that influence or threaten the production and business that Vietnam expert and foreign experts that currently in Vietnam cannot handle.

-As foreign lawyers that are licensed to practice law in Vietnam under the provisions of the Law on Lawyers.

-Under the provisions of the international treaties in which the Socialist Republic of Vietnam is a member.

-As pupils and students studying in Vietnam and working in Vietnam but the employer must notify 07 days with state authorities on the provincial labor.

-Moving within the enterprises in the range of 11 service sectors in the service commitments of Vietnam to the World Trade Organization, including: business, communication, construction, distribution, education, environment, finance, health, tourism, culture and transport;

-Entry into Vietnam to provide advisory services and technical expertise or perform other tasks to serve the research, construction, appraisal, monitoring, evaluation, management and implementation of programs and projects funded with official development assistance (ODA) as prescribed or agreed in international treaties on ODA signed between the competent authorities of Vietnam and foreign countries;

-Granted the work permit on information and press in Vietnam by the Vietnam Ministry of Foreign Affairs in accordance with law;

-Sent to Vietnam by agencies and foreign organizations to teach and research in the international school under the jurisdiction of the foreign diplomatic representative agencies or international organizations in Vietnam or the Ministry of Education and Training certificate for teaching and researching in the educational and training institutions in Vietnam;

-Volunteers certified by the foreign diplomatic representative agencies or international organizations in Vietnam

-Entry into Vietnam working in the positions of professional, manager, executive or technical employees with working duration of less than 30 days and no more than 90 cumulative days in 01 years;

-Entry into Vietnam to implement international agreements that agencies and organizations at the central and province have signed as in accordance with law;

-Pupils and students studying in abroad schools and training institutions that have internship agreements in the agencies, organizations and enterprises in Vietnam;

-Relatives of members of foreign representatives in Vietnam working after licensed by the Ministry of Foreign Affairs, except the case where international treaties that the Socialist Republic of Vietnam is a member that have other regulations;

-Have official passport to work for state agencies, political organizations and political – social organizations;

-Other cases decided by the Prime Minister on the proposal of the Ministry of Labour – Invalids and Social Affairs.

Our lawyers have consistently made valuable and important contributions to our profession.

This publication is designed to provide updated information of legal matters, and does not constitute professional advice.

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Business Conditions for Condominium Management Training Service

On July 1st 2016, the Government issued Decree No. 79/2016/ND-CP guiding the business of training service, improving the professional knowledge, management profession and operation of condominium.

Accordingly, organizations and individuals providing the above services must fully satisfy the 05 following conditions:

– First, the organization was established and operating in Vietnam; has the function of vocational training or college, university or postgraduate education as prescribed.

– Second, has a facility and classroom to ensure sufficient seat for students and location for students to practice on professional knowledge and practice.

– Third, has syllabus or teaching materials consistent with the training framework program that was promulgated by the Ministry of Construction.

– Fourth, has a minimum of 40% of the teachers on the payroll or a contract of indefinite term (has social insurance contribution) in accordance with the training framework program under the guidance of the Ministry of Construction.

– Fifth, being recognized by the Ministry of Construction or the agency authorized by the Ministry of Construction as qualifying for business of condominium management training service.

In addition, this Decree also provides for conditions for business of real estate brokerage practice training service as follows:

– First, the organization was established and operating in Vietnam; has the function of vocational training or college, university or postgraduate education as prescribed.

– Second, has a facility and classroom to ensure sufficient seats for students and location for students to practice on knowledge of real estate brokerage and administration of real estate trading floors.

– Third, has syllabus or teaching materials consistent with the training framework program that was promulgated by the Ministry of Construction.

– Fourth, has a minimum of 30% of the teachers on the payroll or a contract of indefinite term (has social insurance contribution) in accordance with the training framework program under the guidance of the Ministry of Construction.

Decree No. 79/2016/ND-CP officially takes effect upon signing.

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