Overview On Work Permit Application in Vietnam

The expatriate is required to provide some key personal supporting documents as below:

a.      Qualification (Master or Bachelor Degree);

b.     Health Check Certificate which is valid for the period of 12 months until the date of submission;

c.      Criminal Record which is valid for the period of 6 months until the date of submission;

d.     Certificate of Employment.

For Item (a) and (d), they are required to be (i) notarized and legalized in home country (ii) translated into Vietnamese for submission in Vietnam. For Item (b) and (c), they can be completed in Vietnam and no notarization/legalization is required. Otherwise, if these documents are completed in other countries, they are also required to be notarized/legalized and translated into Vietnamese.

Especially applicable to management levels, the Vietnam Company/the RO would need to provide the following:

a.    Certified copy of the Company’s Charter or the RO’s Regulation on Establishment and Operation; and

b.   Assignment Letter/Appointment Letter.

Under the current processes, there are three Steps for obtaining the WP in Vietnam which comprise the following:

• Step 1: Posting a Job Recruitment on National Job Center for recruiting expatriates;

• Step 2: After 15 working days from the Step 1, applying for Position Approval Letter – This is the approval issued by the provincial Labour Department to allow the Vietnam Company to use the foreign employees;

• Step 2: Upon obtaining the Position Approval Letter, the Vietnam Company is required to submit the application (enclosed with personal supporting documents of the expatriate) to the Labour Department for their issuance of the WP.

The whole process would take around 2 months from the date of submission, exclusive of the timeline of preparing the application dossiers.

II.         VALID PEROD OF THE WP

Under the prevailing regulations, the WP will be valid for the max period of 2 years and not exceed the validity term of (i) Assignment Letter to Vietnam or (ii) the Labour Contract to be signed with the Vietnam Company. Upon expired, the WP can be extended one time with the same period. In case the expatriate is still working in Vietnam, the WP must be newly applied.

III.       CASES SUBJECTED TO WP EXEMPTION

Along with the requirements of WP when the expatriate comes to Vietnam for working, the prevailing regulations also provide some cases that are NOT required to apply a WP in Vietnam as below:

1. He/she is Head of a representative office, project or have main responsibility for the activities of international organizations and foreign non-governmental organizations in Vietnam.

2. He/she enters Vietnam for less than 3 months to offer services.

3. He/she enters Vietnam for a period of less than 03 months to handle incidents or complex technical and technological situations that affect or threaten to affect production and business that Vietnamese experts and Foreign experts currently in Vietnam cannot handle it.

4. He/she is a foreign lawyer who has been granted a Legal Practicing Certificate to practice law in Vietnam according to the provisions of the Law on Lawyers.

5. He/she marries to a Vietnamese and live in Vietnamese territory.

6. He/she is the owner or capital contributor of a limited liability company with a capital contribution value of at least 3 billion dong.

7. He/she is the Chairperson or a member of the Board of Directors of a joint-stock company with a capital contribution value of at least 3 billion dong.

8. He/she is an intra-company transferee within 11 sectors in the schedule of commitments in services between Vietnam and WTO, 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.

9. He/she 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.

10. He/she is granted a communication and journalism practicing certificate in Vietnam by the Ministry of Foreign Affairs as per the law.

11. He/she is sent to Vietnam by a competent foreign agency or organization to teach or work as a manager or executive director at an educational institution requested by a foreign diplomatic representative agency or intergovernmental organization established in Vietnam; establishments and organizations established under international treaties that Vietnam is also a member;

12. He/she is a volunteer who comes to Vietnam for working voluntarily and without salary to implement international treaties, of which, Vietnam is also a member and confirmed by foreign diplomatic representatives or international organizations;

13. He/she enters Vietnam to hold the position of a manager, executive, expert or technical worker for a period of work of less than 30 days and up to 3 times a year.

14. He/she enters Vietnam to implement an international agreement to which a central or provincial authority is a signatory as per the law

15. He/she is a student studying 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.

16. He/she is a relative of a member of foreign representative body in Vietnam.

17. He/she obtains an official passport to work for a regulatory agency, political organization, or socio-political organization.

18. He/she takes charge of establishing a commercial presence.

19. He/she is certified by the Ministry of Education and Training as a foreign worker entering Vietnam for teaching and research purpose.

However, despite being WP exemption, it should not be understood that the exemption is automatically applied. Instead, the above expatriates are required to notify to/applying for Confirmation of WP Exemption from the Labour Department.

IV.       WP REVOCATION

The WP will be revoked if (i) the WP is expired (ii) the Labour Contract is terminated (iii) the content of the Labor Contract is not consistent with the content of the issued WP (iv) the working contents are not consistent with the issued WP (v) there is a written notice from the foreign party to stop sending foreign workers to Vietnam (vi) the Vietnam Company/orgnisation in Vietnam has terminated its operation in Vietnam.

Within the above cases, the Vietnam Company/organisation in Vietnam would take the responsibility to revoke the WP and return to the Labour Department.

V.         ADMINISTRATIVE PENALTY

For the expatriate, in case of (i) working in Vietnam without a WP or (ii) working in Vietnam under an expired WP or (iii) working in Vietnam without a Confirmation of WP Exemption, they will be subjected to an administrative penalty from VND15 million to VND25 million. In addition, the expatriate will be deported.

For the Vietnam Company, in case of employing an expatriate who is (i) not holding a valid WP or (ii) working in Vietnam under a expired WP or (iii) without a Confirmation of WP Exemption, the Vietnam Company will be subjected to the administrative penalty ranges as follows:

-          From VND60 million to VND90 million if using from 1 to 10 foreign employees;

-          From VND90 million to VND120 million if using from 11 to 20 foreign employees;

-          From VND120 million to VND150 million if using from 21 foreign employees or more.

VI.       GOVERNED LEGISLATIONS

• The Labour Code No. 45/2019/QH14 issued by the National Assembly dated 20 November 2019;

• The Decree No. 152/2020/NĐ-CP issued by the Government dated 30 December 2020 providing guidelines on foreign workers working in Vietnam and recruitment and management of Vietnamese workers working for foreign employers in Vietnam (“Decree 152”); and

• The Decree No. 70/2023/NĐ-CP issued by the Government dated 18 September 2023 providing some amendments to the Government’s Decree No. 152/2020/ND-CP dated 30 December 2020 on foreign workers working in Vietnam, and recruitment and management of Vietnamese workers working for foreign employers in Vietnam, which comes into force from 18 September 2023 (“Decree 70”).

VII.     KEY DIFFERENCES BETWEEN DECREE 152 AND DECREE 70

During the period of applying the Decree 152, there are some issues that have not been resolved and as requested by some business organisations, the Government in Vietnam has acknowledged and issued the new Decree 70 to amend some articles of the Decree 152 to adapt with the new changes to make the WP application process become simpler and more reasonable. Below are some key changes provided in the Decree 70:

1.          NEW DEFINITIONS AND DOCUMENTS REQUIREMENTS

Under the Decree 152, the Chief Executive Officer (“CEO”) is confined as the person at the top who directly manages the subordinate unit of an agency, organization, or enterprise. However, the Decree 70 provides a new definition. Of which, the CEO is someone who is (i) head of a branch, representative office, or place of business of the enterprise or (ii) someone who directly administers at least one field of the agency, organization, or enterprise and reports directly to the head of the agency, organization, or enterprise.

To define someone as the management level or CEO of the Vietnam Company, the Decree 70 provides a new list of required documents as follows:

• The Company’s Charter or Operational Policies;

• The Enterprise Registration Certificate (“ERC”) or an equivalent document; and

• A resolution or appointment decision for the respective position.

This new regulation, in theory, offers a straightforward and transparent process for verifying one’s professional status. However, in practice, some organisations may be challenged as they may not have all above documents.

2.          QUALIFICATION REQUIREMENTS

Under the Decree 152, foreign employee who is defined as “Expert” is required to have Bachelor Degree or more and must have at least 3 years of experience within their training background.

However, under the Decree 70, the requirement of matching between their experience and qualifications is eliminated. This new approach opens new chances to foreign employees as it is now accepted that their experience is suitable to the proposed title/job position in Vietnam only. Graduation certificates are now accepted as educational evidence for experts.

Also, the skilled workers no longer need their training field to be related to their experience and job position in Vietnam. The Decree 70 only requires that the skill worker would need to have at least 1 year of training and at least 3 year of experience in the position which is suitable for the position in Vietnam.

3.          TIME LIMIT FOR APPLYING POSITION APPROVAL

At least 15 days prior to the date of using the foreign employees, the Vietnam Company is required to determine the need of foreign employees for each position, of which, the Vietnamese employees cannot fulfill or meet job requirement. The Vietnam Company is required to submit an application to the provincial Labour Department for Position Approval Letter (Step 1). This timeline has been reduced from 30 days.

4.          ANNOUNCEMENT OF LABOUR RECRUITMENT

In the view of protecting Vietnam Labour force and creating a fair labour market, the Government also launched a new methology that is effective from 1 January 2024, before applying for Position Approval Letter, the Vietnam Company is also required to publish their recruitment plan onto the Portal of the Ministry of Labour, War Invalids and Social Affairs (Job Services Center) for the period at least 15 days prior to the date of applying for Position Approval Letter for using foreign employees. The publishment will comprise the information of title/position, job description, quantity, required qualification, salary/wage, working time/place.

After 15 days since the date of publication, if the Vietnam Company cannot hire any Vietnamese employee for that position, the Vietnam Company can submit the application for Position Approval Letter for hiring foreign employees.

5.          MULTIPLE WORKPLACES

Where the foreign employee works in different locations in Vietnam (headquarter, branches, business locations or other sites), the application for WP issuance must fully list down these locations. In case of changing any of working locations, the Vietnam Company is responsible for reporting to the provincial Labour Department for their record. Under the response from the Labour Authority in Vietnam, working location to be reported when the expatriate stays and works for the period from 30 days or total of more than 90 days per year. For cases that do not meet these time criterias, the Vietnam Company is not required to report.

6.         WORKING IN DIFFERENT PROVINCES/CITIES

In case the expatriate works for an employer in different provinces/cities, the Vietnam Company must repot via electronic environment to the Ministry of Labour or the provincial Labour Department within 3 days from the date that the expatriate starts working.

In addition, in case the expatriate works for an employer in different provinces/cities, the application for WP issuance must be submitted to the Ministry of Labour, instead of the provincial Labour Department.

7.          CHANGE IN THE AUTHORITY INVOLVED IN WP ISSUANCE

Under the Decree 152, for the Companies located inside the Industrial Parks/Economics Zones, the Board of Management of Industrial Parks or Industrial Zones will take responsibility to issue the WP to the expatriates. However, from the effective of the Decree 70, the provincial Labour Department will take over this role, along with the Ministry of Labour.

 General notes:

• The above is summarised from the current legislations and practices for internal reference only.

• This document cannot be relied upon by any other parties nor included in any submissions, reports, documents or letters required by the relevant regulatory bodies without our prior written consent and/or subject to our approval on the appropriate form and contents; and

• Please kindly noted that SP&A is not a legal firm, our comments provided under this document may include reviewing regulatory documents to be identified as general management consultancy, therefore, should not be considered, nor intended to be, a legal advice.