INTRA-COMPANY TRANSFER OF FOREIGNER

Over the past decade, the number of foreign-invested enterprises in Vietnam increased rapidly in various fields. For effective management purposes, these enterprises usually transfer employees from the foreign parent company to the subsidiary in Vietnam. The demand of performing intra-company transfer programs has become more than ever. Hereafter, LawPlus would like to introduce you to the main points of the  Law related to intra-company transfer of foreigners. intra-company transfer of foreigner 

I. Definition of the intra-company transferee

Pursuant to Clause 1, Article 3 of Decree No. 152/2020/ND-CP on foreign workers working in Vietnam and recruitment and management.of Vietnamese workers working for foreign employers in Vietnam. 

“intra-company transferee” means a manager, executive, expert or technical worker of a foreign company.which has established a commercial presence in Vietnam’s territory who is temporarily transferred.within the company to the commercial presence in Vietnam’s territory and has been recruited by the.foreign company at least 12 consecutive months prior to the.transfer date.” 

Therefore, an intra-company transferee must satisfy the.following conditions:

– He or she is a manager, executive, expert or.technical worker; intra-company transfer of foreigner 

– Foreign company he or she works for established.a commercial presence in Vietnam’s territory;

– He or she  has been recruited by the foreign company at least 12 consecutive months before.being temporarily transferred to the commercial presence in.Vietnam’s territory.

1. He or she is a manager, executive, expert or technical worker;

a) Being a manger:

Pursuant to Clause 4, Article 3 of Decree 152/2020/ND-CP, a business managers is:

– A head or deputy head of an agency or.organisation or;                                                                                                                                                    – An  executive of an enterprise, who holds.one of the following position:

  • A owner of a sole proprietorship;
  • A general partner of a partnership;
  • President or member of the Board of Member;
  • A President of a company; intra-company transfer of foreigner 
  • A President or member of the Board of Directors;
  • A Director/General Director; intra-company transfer of foreigner 
  • A holder of another managerial position prescrbed in the company’s charter.
b) Being an executive

According to Clause 5, Article 3 of Decree 152/2020/ND-CP, “executive” means the head or a person who directly.administers affiliated entities of an agency, organisation or enterprise.

c) Being an expert

According to Clause 3, Article 3 of Decree 152/2020/ND-CP,  “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 practising 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 Labour, War Invalids.and Social Affairs.

d) Technical worker

According to Clause 6, Article 3 of Decree 152/2020/ND-CP,  “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.

2. Foreign company he or she works for established a commercial presence in Vietnam’s territory

Pursuant to Clause 7, Article 3 of Decree 152/2020/ND-CP, employees must work at an enterprise.that has established a commercial presence in Vietnam, including:

– A foreign-invested business entity; intra-company transfer of foreigner 

– A representative office, orr a branch of.foreign trader in Vietnam; 

– An executive office of a foreign investor in a.business cooperation contract.

3. He or she  has been recruited by the foreign company at least 12 consecutive months before  being temporarily transferred to the commercial presence in Vietnam’s territory.

Such employees must have worked for the foreign company before at least 12.consecutive months and be sent to work at foreign-invested business entity, representative office, branch of foreign.traders in Vietnam or an executive office of a foreign investor in a business.cooperation contract.in the Vietnamese territory.

In conclusion, when a foreign company sends managers, executives, experts and technical workers.who have worked for that enterprise for at least 12 consecutive months to the enterprise’s.commercial presence in Vietnam, that person is considered to be an.intra-company transferee.

II. The case that intra-company transferees are exempted from work permits

1. In which case an intra-company is exempt from the work permit?

According to Clause 3, Article 7 of Decree 152/2020/ND-CP, a foreign worker being 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 is exempted from a work permit.

2. Procedures for requesting a certification of exemption from work permit

Step 1:

The employer shall request the Ministry of Labour, War Invalids and Social Affairs or the Department of Labour, War Invalids and Social Affairs of the province where the foreign worker work to certify that such foreign worker is eligible for exemption from a work permit at least 10 working days before he/she starts to work.

Required documents in an application for exemption from work permit:

a) An application form for certification of exemption from work permit 09/PLI Appendix I attached to Decree 152/2020/ND-CP;

b) A fitness to work certificate in accordance with clause 2 Article 9 attached to Decree 152/2020/ND-CP;

c) An acceptance of demand for foreign workers;

d) A valid certified true copy of passport as per the law;

e) Documents justifying that the foreign worker is exempt from work permit;

Note:

Any document mentioned in points b, c and e is 1 original or certified true copy; if a document is written in a foreign language, it must be consular legalised, translated into Vietnamese and certified, unless it is exempt from consular legalisation under an international treaty to which the Socialist Republic of Vietnam and the concerned foreign country are signatories or under the principle of reciprocity or as per the law.

Step 2:

Within 5 working days after receiving a duly completed application, the Ministry of Labour, War Invalids and Social Affairs or Department of Labour, War Invalids and Social Affairs shall issue a certification of exemption from work permit, using Form No. 10/PLI Appendix I attached to Decree 152/2020/ND-CP. If the Ministry or Department rejects the application, it must provide applicants with written explanations. 

III. The case that intra-company transferees must apply for the work permits

Intra-company transferees who are not exempted from work permits above.must apply for work permits.

Procedures for application for a work permit of intra-company transferees.are not much different from normal cases.

Step 1:

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

a) An application form for issuance of a work.permit 11/PLI Appendix I attached to Decree 152/2020/ND-CP.

b) A fitness to work certificate issued by a foreign or Vietnamese competent health facility.issued within 12 months before the submission date of the application or the certificate as specified in.regulations of the Minister of Health.

c) A police (clearance) certificate or a document certifying that the foreign worker is not serving a sentence, has a.criminal record expunged or is not facing a criminal prosecution that a foreign or Vietnamese authority issues.

Note: The foregoing police (clearance) certificate or document must be issued within 6 months before the submission date of the application.

d) Proofs as a manager, executive, expert, technical and.certain jobs, works as follows:

– Proof as a manager, executive; intra-company transfer of foreigner 

– Proof as an expert, technical worker consisting of: diplomas, certificates, certification of foreign.agency, organisation, enterprise in respect of number of years’ experience of the.expert or technical worker;

– A diploma issued by the competent authority in accordance with qualifications.or standard qualifications in the Law on Education, the Law on Higher Education, the Law on Vocational Education.and Regulation on organisation and operation of foreign language and computer.training centres issued by the Minister of Education and Training.

e) 02 colour photos (4cm x 6cm size, white background, front view, bare head, no colour glasses), taken within 6 months before the.submission date of application.

f) An acceptance of demand for foreign workers; intra-company transfer of foreigner 

g) A valid certified true copy of passport as per the law.

h) A document issued by the foreign company to send him/her to work at a commercial presence.of that company in Vietnam’s territory and a document justifying that he/she has been recruited by.the foreign company at least 12 consecutive months prior to the transfer date;

Note:

Any document mentioned in clauses b,c,d and h is 1 original or certified true copy; for documents of.foreign countries, unless they are exempt from consular legalisation under an international treaty to which the Socialist Republic of Vietnam and the.concerned foreign country are signatories or under the principle of reciprocity or as per the law, they must be consular.legalised, translated into Vietnamese and certified.

Step 2:

 Within 5 working days after receiving a duly completed application, the Ministry of Labour, War Invalids and.Social Affairs or Department of Labour, War Invalids and Social Affairs of province where the foreign.worker is expected to work shall issue a work permit to.the foreign worker, using Form No. 12/PLI Appendix I attached to Decree 152/2020/ND-CP. The form of work permit shall be solely printed and.issued by the Ministry of Labour, War Invalids and Social Affairs. If the Ministry or Department rejects the application, it must provide applicants with written explanations. 

It is sometimes difficult to determine which case a intra-company transferee falls in.to carry out the appropriate procedures. Thus, Law Plus’s professional and experienced lawyers are always.ready to offer you the best assistance in solving problems relating to intra-company.transferee programs. To receive the most timely, quality, effective and cost-effective.advice, please contact LawPlus via hotline +84 2862 779 399, +84 3939 30 522 or email info@lawplus. VN

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