简报
Foreign Employees in Vietnam – Work Permit Simplifications
Few countries make it easy for foreigners to enter for work purposes. Vietnam has oscillated over the years in the degree of difficulties that it imposed. A new Decree 70/2023/ND-CP dated 18 September 2023 (Decree 70) has introduced some welcome changes.
1. Looser conditions for some intra-company transferees
(a) Under the prior Decree 152/2020/ND-CP on management of foreign employees (Decree 152), an “expert” (chuyên gia) needed at least 3 years of work experience, that work needed to be in the same field as the expert’s university degree or equivalent and the field had to correspond to the projected job in Vietnam. A “technical worker” (lao động kỹ thuật) needed at least 1 year of education/training and 3 years of work experience in the same field.
(b) Under Decree 70 the work experience and the education no longer have to be in the same field. Accordingly, an expert only needs to have graduated from university or its equivalent and possess at least 3 years of suitable work experience. A technical worker now only needs 1 year of training/education and 3 years of suitable work experience.
(c) Intra-company transfers of executive directors (giám đốc điều hành) were permitted under the prior Decree 152, including heads of an affiliated unit. Decree 70 has clarified that this term includes heads of a branch, representative office, or place of business of an enterprise, as well as a head of a department of an organisation who reports directly to the head of the same organisation.
2. Application documents
2.1 For a manager (nhà quản lý) / executive director:
(a) Decree 152 did not specify which documents were acceptable to demonstrate the manager or executive director’s function in application for work permit (WP) or work permit exemption (WPE). This resulted in inconsistent demands from different provinces.
(b) Under the new Decree 70, the application documents for a manager / executive director position will simply have to include a resolution or appointment decision for the employee.
2.2 Expert / technical worker
(a) Under the former Decree 152, application documents must show the satisfaction of the conditions for an expert / technical worker and include diplomas, degrees, and certifications by the foreign organisation on the years of work of the employee.
(b) Decree 70 adds that a previously issued WP or WPE can also be accepted.
3. Additional grounds for exemption from prior approvals
Decree 70 supplements Decree 152 with the following grounds to relieve the employer from having to obtain the prior approval in section 4:
(a) foreign lawyers who have been issued with a lawyer certificate to practice in Vietnam under the Law on Lawyers;
(b) foreigners who have married a Vietnamese citizen and will reside in Vietnam;
(c) some other grounds under Article 7 of Decree 152, which were previously grounds for not having to obtain a WP and now can also serve as exceptions to the prior approval requirement.
4. New process for approval prior to recruitment
Generally, before any particular vacancies can be filled by foreign employees, employers in Vietnam must specify a demand for foreign employees for such vacancies and show how Vietnamese employees are underqualified for the same, in an application to the competent authorities for review and approval (except where exempted by law, see section 3).
Decree 70 now imposes an additional requirement that from 1 January 2024 onwards, employers in Vietnam must publicly announce the relevant job vacancies, for which they plan to recruit foreign employees, to Vietnamese job-seekers through an online portal of either the MOLISA or an Occupation Services Center. Though the drafting is not clear, the reasonable interpretation seems to be that the announcement must occur before the employer can submit a demand for a foreign employee to the authorities.
(a) Step 1: Public announcement of job vacancy through the online portals, which must include certain prescribed contents under Decree 70;
(b) Step 2: At least 15 days after Step 1, the employer in Vietnam can submit a report to the MOLISA or the provincial DOLISA. The form of the report includes an explanation of the reason for not being able to recruit Vietnamese employees.
If the position, title, work purpose (e.g. employee under a labour contract, as a manager/executive director/expert/technical worker), number of employees and place of work applicable to the foreign employee being recruited changes, the employer must report this to the MOLISA or DOLISA at least 15 days before the estimated recruitment date.
(c) Step 3: The MOLISA or provincial DOLISA reviews and issues approval within 10 business days after receipt of the report in Step 2.
5. Additional notification requirements
In addition to the currently applicable bi-annual reports on the use of foreign employees, if a foreign employee works for the same Vietnamese employer in several provinces, the employer must also report (in prescribed form) to the MOLISA or the respective provincial DOLISA within 3 days from the date on which the foreign employee starts working.
Authors
Phan Ngan Anh
Email: ngananh.phan@freshfields.com
T: +84 24 382 47422
Tony Foster
Email: tony.foster@freshfields.com
T: +84 24 382 47422
