DECREE
Detailed regulations on implementation of a number of articles of the
Labor Code on foreign laborers working in Vietnam
Pursuant to the Law on Organization of the Government on December 25,
2001;
Pursuant to the Labor Code dated 18 June 2012
In accordance with the request of the Minister of Pond L, War Invalids and
Social Affairs,
Government issued the Decree to provide detailed provisions for the
implementation of some articles of the Labor Code on foreign laborers working in
Vietnam.
Chapter I
GENERAL PROVISIONS
Article 1. Scope of regulation
This Decree details the implementation of paragraph 2 of Article 171 of the
Labor Code concerning foreigners who working in Vietnam without a work permit
will be expelled from the territory of Vietnam; Paragraph 9 of Article 172 of the
Labor Code specifying the cases which work permits are not required; Article 175
of the Labor Code specifies the conditions for the grant, renewal, revocation of
work permits for foreign workers who are foreign citizens coming to Vietnam to
work (laborers who are foreign citizens coming to work in Vietnam hereinafter
referred to as foreign workers).
Article 2. Application Scope
1. Foreign workers coming to work in Vietnam in the following forms:
a) To implement labor contracts;
b) Intra corporate Transfer within an enterprise which has commercial
presence in Vietnam.
Intra-corporate transferees are Managers, executives and specialists of a
foreign enterprise which has established a commercial presence in the territory of
Viet Nam, temporarily moving as intra-corporate transferees to that commercial
presence and who have been previously employed by the foreign enterprise for at
least 12 months
Commercial presence is understood as a service provider who is citizen of a
country moving to another country to set up a legal entity and provide services in
that country.
c) Implement contracts or agreements related economic, trade, financial,
banking, insurance, science and technology, culture, sports, education, health care
issues;
d) Contractual Service Providers
Contractual Service Providers can be interpreted as foreign workers who are
employees of a foreign enterprise having no commercial presence in Viet . These
people should be working for the foreign companies having no commercial
presence in Vietnam is at least 02 (two) years and have to meet the conditions for
"experts" in accordance with the paragraph 2 of this Article.
đ) Service Offering.
Foreign workers offering services is understood as foreigners who are not
residing in Vietnam and do not receive remuneration from any source located in
Vietnam, and who are engaged in activities related to representing a service
provider for the purpose of negotiating for the sale of the services of that provider
where: (i) such sales are not directly made to the general public; and (ii) the
salesperson is not directly engaged in supplying the service..
e) Foreign laborers working for foreign non-governmental organizations,
international organizations which are allowed to operate under the provisions of
Vietnamese law;
g) Volunteers.
Volunteers are those working in Vietnam in the form of voluntary and receive
no remuneration to implement international treaties that the Socialist Republic of
Vietnam has signed or participated.
2. Businesses, agencies, organizations, individuals and contractors employing
foreign workers, including:
a) Enterprises operating under the Enterprise Law and Investment Law;
b) Foreign contractors (contractors and subcontractors) have contract awards
in Vietnam;
c) Representative offices, branches of economic, trade, financial, banking,
insurance, science and technology, cultural, sports, education, health care
organizations;
d State organizations and public service agencies
đ) Social-political organizations, political socio-professional organizations,
social organizations, social-professional organizations, non-governmental
organizations;
e) Health care, culture, education, vocational training, sports organizations
established with the permit from competent authorities;
g) Office of foreign or international projects in Vietnam;
h) The Executive Office of the foreign partner in business cooperation
contracts in Vietnam;
i) Law firms in Vietnam in accordance with Vietnamese law;
k) Cooperatives and Cooperative Alliances established and operating under
the Law on Cooperatives;
l) Business associations established under the provisions of Vietnamese law;
m) Household businesses, business persons permitted by the competent
authority and operating in accordance with the laws of Vietnam.
Businesses, agencies, organizations, individuals and contractors above
hereinafter referred to as the employer.
CHAPTER II
GRANT, RENEWAL OF WORK PERMITS AND DEPORTATION OF FOREIGN WORKERS WITHOUT WORK PERMIT
Article 3. Cases of foreign workers who are not subject to work permits
1. Foreign laborers working in Vietnam who are not the subjects of work
permits specified under the provisions of Article 172.1; 172.2, 172.3, 172.4, 172.5,
172.6, 172.7 and 172.8 of the Labor Code.
2. Intra-corporate transfer, within the scope of services committed by Vietnam
under the World Trade Organization which include 11 service sectors: business
services; information services; construction services, distribution services;
education services; environmental services; financial services; health care services;
tourism and travel related services; Recreational, Cultural And Sporting Services
and transportation services.
Ministry of Industry and Trade is responsible for guiding the criteria,
procedures to identify foreigner who are intra-corporate transferees under the 11
above-mentioned services.
3. Foreigners coming to Vietnam to provide technical consultation services or
perform other tasks for research, development, evaluation, monitoring and
evaluation, management and implementation of Official Development Assistance
(ODA) projects as defined or agreed within international ODA agreements signed
between the Vietnam competent agencies and the foreign counterparts
4. Those obtained licenses from Ministry of Foreign Affairs for operating in
the area of information and press activities in Vietnam in accordance with the law.
5. Those who are working in the international schools under the management
of foreign diplomatic organizations and inter-governmental international
organizations.
6. Volunteers.
Foreign diplomatic representative offices in Vietnam is responsible for
certifying foreign laborers working in Vietnam in the form of volunteers.
7. Other cases approved by the Prime Minister upon the request of the
Ministry of Labour, Invalids and Social Affairs.
Article 4. Conditions for granting work permits for foreign workers
1. Having full civil behavioral capability in accordance with Vietnamese law ;
2. Having sufficient health condition as required by the work;
3. Being managers, managing directors; specialists, or technical workers
Managers and executives are those who primarily direct the management of
the foreign enterprises which have established commercial presence in
Viet Nam, receiving only general supervision or direction from the board of
directors or stockholders of the business or their equivalent, manage the
enterprises including directing the establishment or a department or
subdivision of the establishment, supervising and controlling the work of other
supervisory, professional or managerial employees, having the authority
personally to hire and fire or recommend hiring, firing or other personnel
actions, and who do not directly perform tasks concerning the actual supply of
the services of the establishment.
Specialist foreign domestic workers who have expertise, high technical
service, research equipment, techniques or management (including qualified
engineers or engineering equivalent or more; technology the traditional
professions) and a 5 (five) years or more experience in the profession, operating in
the manufacturing, sales and management jobs.
Specialists are foreigner workers who possess knowledge at an advanced level
of expertise and with knowledge of the organization's services, research
equipment, techniques or management (which include engineers and workers with
similar education level or higher; traditional craftsmen) and those who have at least
5 years of professional experience in the professional sector or in manufacture and
business management
Technical workers are foreign workers who were trained specialized
techniques and skills for at least 01 (one) year, obtained relevant certificates and
have at least 3 years of experience in fields that they have been trained.
Foreign workers applying to medical practice, private pharmaceutical
services, direct examination and treatment in Vietnam or working in the field of
education and vocational training have to meet required conditions in accordance
with Vietnamese law related to medical practice, private pharmacy, education and
vocational training.
4. No criminal records related to national security violation crimes; not
subject to criminal prosecution, under the execution periods of criminal penalties
in accordance with Vietnamese and foreign law;
5. Obtained written approval from competent State agencies permitting the
use of foreign workers.
Article 5 Demand for foreign workers
1. Every year, employers are responsible for estimating their demand for
foreign workers for each position in accordance with the guidance of the Ministry
of Labor, Invalids and Social Affairs, which defines each position that Vietnamese
workers are unable to fulfill and need to recruit foreign workers; written reports
should be sent to Departments of Labor, Invalids and Social Affairs in provinces
and cities directly under the central government, where the employers locate their
headquarters.
2. Departments of Labor, Invalids and Social Affairs are responsible for
compiling demands for foreign workers for each position locally and report to the
chairman of the People's Committees of provinces and cities directly under the
Central governments to consider and make decision on positions that require
recruitment of foreign workers.
3. Departments of Labor, Invalids and Social Affairs approved in writing the
demand for foreign workers for each employers and each position in accordance
with the decision of Chairmen of the People's Committee of provinces and cities
directly under the central government.
4. If there are any changes in demand for foreign worker recruitment employers
must submit additional reports in writing to the Department of Labor, Invalids and
Social Affairs in provinces and cities under central government where the
employers locate their headquarters in accordance with the provisions of paragraph
2 and paragraph 3 of this Article.
5. Departments of Labor, Invalids and Social Affairs shall report to the
Ministry of Labor, Invalids and Social Affairs on demand for foreign workers; the
status of approving demands for foreign workers and the situation of foreign
workers working in businesses and organizations in their management areas.
Article 6 Work permit dossier
1. Written request for a work permit from employers in accordance with the
Ministry of Labor, Invalids and Social Affairs’ templates
2. Health certificate issued abroad or health certificate issued in Viet Nam as
prescribed by the Ministry of Health.
The Ministry of Health is responsible for guiding the approval process for
health certificates issued abroad.
3. legal Background records issued by competent authorities of the countries
where foreign workers are residing before entering Vietnam, Legal background
records or judicial certificates issued by the competent authorities of Vietnam.
Legal background record/Judicial certificates should be valid for 6 months
from the date of submission for work permit.
4. Certification of professional and technical qualifications of foreign workers in
accordance with the paragraph 3 of Article 4 of this Decree.
For some occupations, jobs, certification of professional of foreign workers
will be replaced by one of the following documents:
- Certificate of artisan in a traditional occupation supplied by foreign authorized
agencies for foreigners who are artisan in traditional occupation.
- Confirmations or labor certificates or labor contracts certifying that he or she
has at least (05) five years' experience in an occupation or trade, in operating
production or in managerial work and suitable with the occupation positions that
foreigner plans to take. Above confirmations with at least (05) five years’
experience are certified by enterprises, agencies and organizations where
foreigners have worked.
- List of football clubs that football players have taken and certificate of previous
football clubs that football player took are compulsory for a football player.
- License of air transport certified by Vietnam authorized agencies for foreign
pilots.
- Certificate of airplane maintenance issued by Vietnam authorized agencies for
foreigners who conduct airplane maintenance.
- Other cases under the Prime Minister’s regulations.
5. Written approval of Departments of Labor, Invalids and Social Affairs to
allow the use of foreign workers;
6. 03 (three) color photos (3cm by 4cm in size, bareheaded, frontal view,
showing the face and ears clearly, without glasses, and on a white background)
taken within the last six (06) months from the date on which the foreigners
submit their application
The documents specified in paragraph 2, paragraph 3 and 4 of this article
which are original or duplicated copies in foreign languages must have consular
authentication then translated to Vietnamese and notarized or certified in
accordance with the law of Vietnam.
7. Documents related to foreign workers:
a) foreign workers prescribed in Article 2.1.b of this Decree must obtain
written documents of foreign companies to assign the foreign workers to work in
their commercial presence in Vietnam and documents proving that the foreign
workers have been recruited by the foreign enterprise at least 12 (twelve) months
before entering Vietnam.
b) Foreign workers prescribed in Article 2.1.c of this Decree must have a
contract signed between the Vietnamese party and the foreign counterpart.
c) Foreign workers prescribed in Article 2.1.d of this Decree must have a
contract signed between Vietnamese parties and foreign counterparts and
documents proving that foreign workers have been working for foreign companies
with no commercial presence in Vietnam for at least 02 (two) years.
d) Foreign workers prescribed in Article 2.1.đ of this Decree must have
written documents of the service provider sending the foreign workers to Vietnam
for the negotiation of service provision.
đ) Foreign workers prescribed in Article 2.1.e of this Decree must have a
certificate of foreign non-governmental organizations, international organizations
which are permitted to operate in Vietnam under the provisions of Vietnamese law.
e) Foreign workers prescribed in Article 2.1.g of this Decree must have the
written documents certifying that the foreign workers entering Vietnam in the form
of volunteers of a foreign diplomatic organizations in Vietnam.
Article 7. Duration of the work permit
The duration of work permits depends on the terms of the labor contract
expected to be signed or the duration that the foreign will assign the foreign
workers to work in Vietnam or the terms of the contracts signed between
Vietnamese partners and their foreign parties or the terms that service providers
assign the foreign workers to Vietnam for negotiation of service provision or
duration specified in the certificate of non-governmental organizations,
international organizations permitted to operate under the provisions of
Vietnamese law.
The duration of the work permit for the above cases shall not exceed 24
months.
Article 8. Procedures of granting a work permit:
1. prior to at least 20 (twenty) days from the date the foreign worker is
expected to begin working at enterprises, agencies and organizations in Vietnam,
the employers shall submit directly or send by mail application dossiers for work
permits to the Department of Labor, Invalids and Social Affairs where foreign
workers will work full time for the employers in a province or city under the
central government management.
In cases that foreign workers do not work full time in one province or city
under the central government management, the dossiers should be sent to the
Department of Labor, Invalids and Social Affairs where the employers locate their
headquarters.
2. Within 10 (ten) working days calculated from the date of receipt of a
complete set of a valid application dossier for a work permit, Department of
Labour, Invalids and Social Affairs shall issue work permits for the foreign
workers in the template provided by the Ministry of Labour, Invalids and Social
Affairs. In case of refusing to grant work permit written explanation will be
provided clearly stated the reasons.
3. Department of Labor, War Invalids and Social Affairs is responsible for
reporting the sit on a work permit in accordance with the Ministry of Labor, War
Invalids and Social Affairs.
Article 9. Cases for Renewal of work permit
1. Work permit is lost, damaged or changes in passport numbers, working
locations indicated on the work permit
2. Work permit expired.
Article 10. Application dossier for work permit renewal
1. Application letter requesting renewal of work permits from employers. The
letter should specify clearly the reasons why the renewal is needed in accordance
with the template required by the Ministry of Labor, Invalids and Social Affairs;
2. Work permit was already granted (except for the case that work permits
were granted but lost) still valid at least 5 (five) days but not more than 15 (fifteen)
days from the date of expiry;
4. Papers relating to foreign workers:
a) For the cases of work permit renewal in accordance with Article 9.1 of this
decree 03 (three) color photos (3cm x 4cm, bare head, taken from the front,
showing the face and ears clearly, without glasses, and on a white background),
taken within 06 (six) months before the application date
b) For the case of labor license renewal as specified in Article 9.2 and Articl
9.3 of this Decree health certificates issued in Vietnam are required; documents of
employers appointing the foreign laborers to work in Vietnam or copies of
contracts signed between Vietnam and foreign parties or documents proving the
foreign workers continue to work on negotiation for service provision in Vietnam
or valid registration document of the non-governmental organizations, international
organizations in Vietnam and a copy of agreements between the non-governmental
organizations, international organizations and the foreign workers proving that the
foreign workers continue working in those non-governmental organizations.
Article 11. Procedures for work permit renewal
1. In the case of renewal of work permit in accordance with Article 9.1 of this
decree, within period of 03 (three) days from the date foreign workers detected that
their work permits are lost, torn, or there are changes in passport numbers, work
location specified on granted work permits, foreign workers are responsible for
reporting to their employers;
Within 5 (five) days from the date the employers received reports from
foreign workers, the employers have to file requests for regrating work permits to
the Department of Labor, Invalids and Social Affairs where the work permits were
granted.
2. For cases of work permit renewal specified in Article 9.2 of this Decree on,
at least 5 (five) days but not more than 15 (fifteen) days from the date expirty date
of the work permits, employers must submit applications for re-issuance so that
foreign workers can keep working for positions specified on the work permit
which was granted by Department of Labor, Invalids and Social Affairs.
3. Within a period of 03 (three) working days calculated from the date of
receipt of a complete set of valid documents requesting for renewal of work
permits, Departments of Labor, Invalids and Social Affairs shall re-issue work
permits in accordance to the templates prescribed by the Ministry of Labor,
Invalids and Social Affairs. In case the re-issuance of work permits is rejected,
written explanation is required specifying clearly reasons for rejecting.
4. Department of Labor, Invalids and Social Affairs report on the situation of
work permit renewal as required by the Ministry of Labor, Invalids and Social
Affairs.
12. The duration of renewed work permits
1. The duration of renewed work permit for cases specified in Article 9.1 of
this Decree is equal to the duration of the work permit which has been granted
previously minus the duration that the foreign workers already worked up to the
time requesting for work permit renewal.
2. The duration of renewed work permit for cases specified in Article 9.2 of
this Decree is equal to the duration of the labor contracts expected conclusion.
3. The duration of renewed work permit for cases specified in Article 9.3 of
this Decree shall be the same duration as the term of the labour contract set out in
the decision of the foreign party on appointment to come to work in Vietnam, or
the same duration as the term of the contract between the Vietnamese party and the
foreign party or the same duration as the term specified in the certificate proving
that the foreign non-Governmental organization is permitted to operate in
accordance with the law of Vietnam.
The duration of the work permit specified in Paragraph 1,2,3 of this Article
shall not exceed 24 months.
13. Withdrawal of work permit
1. Cases that work permit will be withdrawn
a) The contents prescribed in the application dossier for work permits
issuance, renewal are fakes.
b) The work permit expires.
c) Foreign workers or employers do not comply with the content of work
permits which were granted
d) The labour contract is terminated.
đ) The contents of the labour contract are inconsistent with the contents of the
issued work permit.
e) The economic, commercial, financial, banking, insurance, scientific and
technical, cultural, sporting, educational or medical health contract is terminated.
g) There is written notice from the foreign party terminating the appointment
of the foreign employee to work in Vietnam.
h) The enterprise, organization, Vietnamese party or foreign non-
Governmental organization in Vietnam terminates its operation.
i) The foreigner is sentenced to prison, dies, or is proclaimed missing by a
court’s decision.
2. Departments of Labor, Invalids and Social Affairs of provinces and cities
directly under Central Government are responsible for withdrawing the work
permits specified Paragraph 1 of this Article
Article first 4. Forced departure or deportation of foreign workers
1. Foreign workers working in Vietnam without work permits, exempt for
cases which are not subject to work permit requirements specified in Article 3 of
this Decree
2. Departments of Labor, Invalids and Social Affairs of provinces and cities
directly under Central Government shall request the police to impose forced
departure measures or deportations on cases specified in Paragraph 1 of this
Article.
3. Responsibility of Ministry of Public Security:
a) Provide guidance on capacity, procedures, criteria and required documents
for forced departure and deportation penalties for cases specified in Paragraph 1 of
the Article
b) Provide direction and guidance to competent police authorities to issue
visas to foreign workers after obtaining work permits or r work permit renewal, or
successfully submitting valid application for work permit issuance or work permit
renewal
CHAPTER II
ENFORCEMENT PROVISIONS
Article 15: Effectiveness
1. This Decree shall be effective since May 1, 2013 .
2. This decree replaces Decree No. 34/2008/NĐ-CP dated 25 March 2008 of
the Government on recruitment of management of foreign workers in Vietnam,
Decree No. 46/2011/NĐ-CP dated 17 June 2011 revising and sumplementing some
provisions of Decree No. 34/2008/NĐ-CP ngày 25 tháng 3 năm 2008 of the
Government on recruitment of management of foreign workers in Vietnam and
replaces all regulations conflicting with this Decree.
3. For foreign workers that have work permits which are valid until the
effective date of this Decree the work permits are still valid and no replacement of
work permits is required.
Article 16 . Responsibility for implementation
1. The Ministry of Labor, Invalids and Social Affairs shall provide guidelines for
implementation of this Decree.
2. Ministers, heads of ministerial equivalent bodies, heads of Government
bodies and chairmen of people's committees of provinces and cities under central
authority shall be responsible for implementation of this Decree
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Contact NHI GIA WORK PERMIT CONSULTANT for free advice.
TP. HỒ CHÍ MINH
Ngọc Triều (Ms.) – 0906 910 278
Email: trieu.le@nhigia.vn
Trà Mi (Ms.) – 0909 964 788
Email: mi.nguyen@nhigia.vn
NHIGIA TRADING AND SERVICE CO., LTD
Branch: 108/10 Vinh Vien Str, Ward. 9, Distr. 10, HCMC
T: [+84-8] 3834 5588 | F: [+84-8] 3834 9088
Tax code: 0304 279 089
HÀ NỘI
Nguyễn Thị Phương (Ms.) - 0906 870 788
Email: phuong.nguyen@nhigia.vn
Branch: Nguyễn Khánh Toàn, Cầu Giấy, Hà Nội
