Whom is Exempted from Work Permit Since 2021?

On December 30, 2020, the Government issued Decree No. 152/2020/ND-CP regulating foreign workers working in Vietnam and recruiting and managing Vietnamese employees to work for the foreign employers in Vietnam.

In which, foreign workers in Vietnam are not required to be granted work permits include:

The employee is the owner or capital contributor of a limited liability company with a capital contribution of at least 3 billion VND; Chairman of the Board of Directors or a member of the Board of Directors of a joint stock company with a capital contribution of at least 3 billion VND;

Intra-corporate transferees within 11 service sectors in Vietnam’s service commitment schedule with the World Trade Organization, including: business services, communication services, construction services, distribution services, educational services, environmental services, financial services, health services, tourism services, recreational and cultural services, and transport services;

The person responsible for establishing a commercial presence;

The employee enters Vietnam to work as manager, executive, expert or technical worker for a working time of less than 30 days and not more than 3 times a year;

The employee who enters Vietnam for a period of less than 03 months to offer services;

The employee enters Vietnam for a period of less than 03 months to handle complicated incidents, technical or technological situations that affect or risk affecting production and business that Vietnamese experts and the foreign experts currently in Vietnam cannot handle it;

Foreign lawyer who has been granted a law practice license in Vietnam in accordance with the Law on Lawyers; The employee is licensed by the Ministry of Foreign Affairs to operate information and press in Vietnam in accordance with the law; The person certified by the Ministry of Education and Training to enter Vietnam for teaching and researching;

The employee enters Vietnam to provide professional and engineering consulting services or perform other tasks intended for research, formulation, appraisal, supervision, evaluation, management and execution of programs and projects using official development assistance (ODA) in accordance with regulations or agreement in international treaties on ODA signed between the competent authorities of Vietnam and foreign countries;

The employee is sent to Vietnam by competent foreign agency or organization to teach and research at international schools under the management of foreign diplomatic missions or the United Nations; establishment and organization established under the agreement which Vietnam has signed and acceded to;

The employee enters Vietnam to implement an international agreement to which a central or provincial authority is a signatory as per the law;

Person obtains an official passport to work for a regulatory agency, political organization, or socio-political organization;

Relatives of members of foreign representative missions in Vietnam;

In cases where the provisions of an international treaty to which the Socialist Republic of Vietnam is a signatory;

Head of representative office, project or is responsible for the activities of international organizations, foreign non-governmental organizations in Vietnam;

The employee is a volunteer;

The student studies at a foreign school or training institution which has a probation agreement with an agency, organization or enterprise in Vietnam; or a probationer or apprentice on a Vietnam sea-going ship;

The employee is a foreigner who marries a Vietnamese and lives in the territory of Vietnam.

This Decree takes effect from February 15, 2021.

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What Changes in Procedures for Granting Work Permits for Foreign Workers from 2021? | ANT Lawyers

Vietnam law allows enterprises, agencies, organizations, individuals and contractors to recruit foreign workers for job positions that Vietnamese workers cannot meet the needs of business operation in Vietnam. However, the procedures to apply for permit allowing foreign workers to work in Vietnam is complicated which many times labour lawyers could be engaged to help provide more productive solutions to avoid delay or dispute that lead to the negative impact to the rights and benefits of employer or employee.

A foreign employee means a person who hold a foreign nationality and is at last 18 years of age and has full legal capacity; has qualifications, occupational skills, practical experience and adequate health as prescribed by the Minister of Health; is not serving a sentence; does not have an unspent conviction; is not undergoing criminal prosecution under his/her home country’s law or Vietnam’s law; has a work permit granted by a competent authority of Vietnam, except in the cases the foreign employees are not required to have the work permit.

Job positions in which enterprises are employed by foreign workers include managers, executives, experts and technical workers.

Manager means a person in charge of management of an enterprise or the head or deputy head of an agency or organization.

Executive means the head or a person who directly administers affiliated entities of an agency, organization or enterprise.

Expert means a foreign worker who obtains at least a bachelor’s degree or equivalent and at least 03 years’ experience in his/her training field in corresponding with the job position/job assignment that he/she will be appointed in Vietnam; obtains at least 5 years’ experience and a practicing certificate in corresponding with the job position that he/she will be appointed in Vietnam; or falls under a special case subject to decision of the Prime Minister according to a request of the Ministry of Labor, War Invalids and Social Affairs.

Technical worker means a foreign worker who has been trained in technical field or another major for at least 01 year and have worked for at least 03 years in his/her training field; or obtains at least 5 years’ experience in corresponding with the job position that he/she will be appointed in Vietnam.

Before applying for a work permit for a foreign worker, at least 30 days before the date on which foreign workers are expected to be employed, the employer (except contractor) shall request to determine the demand for foreign workers for every job position for which Vietnamese workers are underqualified and send a corresponding report to the People’s Committee of province where the foreign workers are expected to work.

The People’s Committee of province shall issue a document specifying accepted job positions and non-accepted job positions within 10 working days after receiving the foregoing report on demand for foreign workers or report on change thereof.

At least 15 working days before the day on which a foreign worker starts to work, the employee shall submit an application for work permit to the Department of Labor, War Invalids and Social Affairs of the province where he/she is expected to work.

Within 5 working days after receiving a duly completed application, the Department of Labor, War Invalids and Social Affairs of province where the foreign worker is expected to work shall issue a work permit to the foreign worker. The form of work permit shall be solely printed and issued by the Ministry of Labor, War Invalids and Social Affairs. If the application is rejected, a written explanation is required.

After the foreign worker is issued with a work permit, the employer and the foreign worker must sign a written employment contract as per Vietnam’s labor law before the date on which the foreign worker is expected to work. The employer shall send that employment contract to the competent authority that issue that work permit. The employment contract is the original or a certified true copy.

In a number of cases, there are situation which employer engages a foreign employee in a job but fails to perform sufficient work permit procedures in time. When a labour dispute arise, it takes time to prove the labour relationship between the parties and this would negatively impact the right and benefits of the employee. It is therefore important to ensure the labour compliance from both employer and employee side to avoid dispute.

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