The outstanding economic growth as well as the policy of increasing the attraction of investment from abroad and creating favorable conditions for businesses to recruit foreign workers have led to an increasing trend in the number of foreign workers to work in Vietnam. To create regulations suitable to the real situation of foreign workers, Decree 152/2020/ND-CP (hereinafter referred to as Decree 152) regulates foreign workers in Vietnam and recruiting and managing Vietnamese employees working for foreign organizations and individuals in Vietnam issued by the Government on December 30, 2020, taking effect from February 15, 2021.
Therefore, individuals and organizations need to update plans, policies on resources, and apply new regulations in accordance with current laws.
Here are the key changes of Decree 152 compared with previous regulations on foreign workers working in Vietnam:
Table of Contents/Mục lục
1. Cases in which employers are not required to determine the need to employ foreign employees
Pursuant to the Labor Code and Article 7 this Decree, these are the 11 cases will not need to provide “Written approval of the need to use foreign employees” in the application file for a work permit, the application for exemption of a work permit.
- Be the Head of representative office, project, or have the main responsibility for the operation of international organizations, foreign non-governmental organizations in Vietnam.
- Entering Vietnam for a period of fewer than 03 months to offer services.
- Entering Vietnam for a period of fewer than 3 months to handle complicated technical or technological situations that affect or risk affecting production and business that Vietnamese experts and Foreign experts currently in Vietnam cannot handle.
- Be the owner or capital contributor of a limited liability company with a capital contribution of 3 billion VND or more.
- Be the Chairman of the Board of Directors or a member of the Board of Directors of a joint-stock company with a capital contribution of 3 billion VND or more.
- Entering Vietnam to work as a manager, executive director, expert, or technical employee for a working time of fewer than 30 days and no more than 03 times a year.
- Entering Vietnam to implement international agreements signed by Central or provincial level departments or organizations in accordance with the law.
- Students who are studying at overseas schools and training institutions with internship agreements in agencies, organizations, and enterprises in Vietnam; trainees and apprentices on Vietnamese ships.
- Relatives of members of foreign representative missions in Vietnam.
- Having official passports to work for state agencies, political organizations, socio-political organizations.
- The person responsible for establishing a commercial presence.
2. The cases that foreign employees are automatically exempt from work permits in Vietnam 2021
Decree 152 regulates 07 subjects are not required to carry out procedures to confirm that foreign workers are not subject to work permits but must report to the Ministry of Labor, War Invalids and Social Affairs or the Department of Labor, War Invalids and Social Affairs where the foreign worker is expected to work at least 03 days in advance from the date the foreign worker is expected to start working in Vietnam.
- Entering Vietnam for a period of fewer than 03 months to offer services;
- Being a foreign lawyer who has been granted a law practice license in Vietnam in accordance with the Law on Lawyers;
- Foreigners who are married to Vietnamese people and live in the territory of Vietnam;
- Owner or capital contributor of a limited liability company with a capital contribution of 3 billion VND or more;
- Chairman of the Board of Directors or a member of the Board of Directors of a joint-stock company with a capital contribution of 3 billion VND or more;
- Entering Vietnam to work as a manager, executive director, expert, or technical employee for a working time of fewer than 30 days and no more than 03 times a year;
- Relatives of members of foreign missions in Vietnam: Relatives of members of foreign missions in Vietnam are allowed to work in Vietnam in accordance with international treaties to which the Socialist Republic of Vietnam means that Vietnam is a member.
However, it is important that even if the foreign workers are automatically exempt from work permits, but it doesn’t mean they are allowed to work without meet any conditions of the local where the foreign worker is expected to work. As a result, the foreigner and the employer must notice to the local authority about the worker’s exemption.
3. New requirements for dossiers of request confirmation not subject to work permit
Foreign workers meet the conditions for being granted a work permit exemption must be accompanied by a health certificate for the purpose of working. This is a new point that has not been mentioned in Decree 11/2016/ND-CP.
- A health certificate or medical examination certificate as prescribed in Clause 2, Article 9: “A health certificate or a medical examination certificate is granted by a competent foreign or Vietnamese medical agency or organization, which is value for 12 months, from the date of conclusion of health to the date of submission of dossier or certificate in according to regulations of the Minister of Health ”
- Written approval of demand for foreign workers, except for the cases mentioned in item 2;
4. Change the application form to make a work permit
According to Decree 152, there are 3 forms of applications related to procedures for new issuance, re-issuance, and extension of work permits; explanation/change in foreign labor demand; identify foreign workers not subject to the issuance of a revised work permit compared with the previous regulations.
5. The duration and extend procedure of the work permit
From 2021, the foreign worker is only allowed to extend his work permit once for a maximum of 2 years.
The term of a work permit issued according to the term of one of the cases specified in Article 10 of Decree No. 152 is as follows:
- The duration of the labor contract to be signed.
- The duration of the assignment in Vietnam decided by the foreign partner.
- The duration of the contract or agreement signed by and between the Vietnamese partner and the foreign partner.
- The duration of the service contract or agreement signed by and between the Vietnam partner and the foreign partner.
- The duration stated in the paper made by the service provider who sends the foreign worker to Vietnam to negotiate the service supply.
- The duration has been determined in the operation license of the agency, organization, or enterprise.
- The duration stated in the paper made by the service provider who sends the foreign worker to Vietnam that has established its commercial presence in Vietnam.
- The duration stated in the paper proving the foreign worker’s eligibility to participate in the operation of a foreign enterprise that has established its commercial presence in Vietnam.
- The duration in the approval document of the employment of foreign workers, except for the case in which the report is not required to explain the demand for foreign workers as prescribed in Clause Article 4 of this Decree.
Thus, compared with the provisions of Decree No. 11/2016 / ND-CP detailing some articles of the Labor Law regarding foreign workers in Vietnam, the work permit is in Decree No. 152 has replaced “The duration specified in the certificate of a foreign non-governmental organization, international organizations permitted to operate in accordance with Vietnamese law” adapts to “The duration has been determined in the operation license of the agency, organization, or enterprise”.
In addition, Decree No. 152 also adds the regulations to grant work permit, which is the extension in the written approval of the employment of foreign workers, unless there is no demand report employing foreign workers specified at Point b, Clause 1, Article 4 of the above Decree.
Decree No. 152 also supplements regulations on extension of work permits. Accordingly, foreign workers who want to extend the work permits must meet the conditions specified in Article 16 of Decree No. 152, specifically:
- The work permit issued is valid for at least 05 days but not more than 45 days;
- Demand for foreign workers approved by a competent authority;
- Documents proving that the foreign worker continues to work for the employer according to the contents of the work permit issued.
6. Re-issuance of work permits
According to the Decree 152, there are 3 cases of re-issue of work permits:
- Work permit with the valid term is lost.
- Work permit with the valid term is damaged.
- Change of surname and up, nationality, passport number, work location indicated in the valid work permit.
7. Cases of revocation of work permits
Cases of revocation of work permits are specified, specifically:
- Work permit expires;
- Work permit phased out;
- Termination of the labor contract;
- The contents of the labor contract are not consistent with the contents of the work permit issued;
- Work inconsistently with the contents of the work permit issued;
- Contracts in the fields are the basis of arising work permits expired or terminated;
- There is a notice from the foreign party that they stop sending foreign workers to work in Vietnam;
- Enterprises, organizations, Vietnamese partners, or foreign organizations in Vietnam that employ foreign workers terminate their operation;
- The employer or the foreign worker are not complying with the provisions of Decree 152/2020/ND-CP;
- Foreign workers, while working in Vietnam, fail to comply with Vietnamese laws, affecting social security, and safety.
This Decree details the order of revocation of work permits 2021.
8. Applying for a work permit for some special cases
According to Decree 152, there are 2 cases applying for a work permit for some special cases, specifically:
- The foreign worker who has been granted a work permit, which is still valid, and wishes to work for another employer at the same job position and job title as stated in the work permit;
- The foreign worker has been granted a work permit, which is still valid but changes the job position or job title or the form of work in the work permit in accordance with the law but does not change the
9. The time for handling procedures and granting work permits has been shortened
– The time for handling procedures and granting work permits: 05 working days.
– Processing time for the application for certification not required to be granted a work permit:
- Time to apply: At least 10 days in advance from the date the foreign worker starts working.
- Processing time: Within 05 working days from the date of receipt of a complete application for certification of ineligibility for a work permit.
According to the provisions of the Labor Code 2019 that took effect on January 1, 2020, Decree 152 not only gives a broader definition of the forms and working conditions of foreign workers working in Vietnam, but also amending and supplementing many provisions in previous Decrees. Decree 152 shows that the Government of Vietnam aims to concretize the conditions for foreign workers to work in Vietnam and to recruit and manage Vietnamese employees working for foreign organizations and individuals. in Vietnam in accordance with the requirements of the labor situation in the country.
The above are some important changes in Decree 152/2020/ND-CP regulates on the process of obtaining work permits for foreign workers in Vietnam, as well as the recruitment and management of Vietnamese employees working for foreign organizations and individuals in Vietnam. For advice as well as updates as soon as there is a change, please contact LawPlus at hotline: +84268277399 or email firstname.lastname@example.org.