By way of a new Circular 41/2014/TT-BCT the Ministry of Industry and Trade has introduced Work Permit Exemption regulations for Intra-Company Transfers (ICTs) working in 11 service sectors. The new process is planned to come into effect on December 22, 2014.
As of December 22, 2014, applications for Work Permit Exemptions can be filed at the provincial Department of Labor, Invalids, and Social Affairs (DeLISA). The foreign national and Vietnamese entity must meet the following three (3) requirements to be eligible for obtaining the exemption:
• The foreigner holds a managerial position, or is an expert/specialist or technician;
• The foreigner has worked for a foreign related company for at least 12 months before being seconded to the Vietnamese entity;
• The Vietnamese entity must operation in one of the 11 service sectors listed in the Circular’s Annexes. Please note that the eligible service sectors may differ for Managers/Experts vs. Technicians.
As it stands now, the circular does not define a standard processing time for the DeLISA to adjudicate the Work Permit Exemption applications. However, based on our previous experience with the implementation of new processes in Vietnam, we do anticipate longer processing times and more difficult approvals for these exemption applications during the first months of the implementation. Processing times should decrease and the DeLISA decisions should become more consistent as the authorities get used to the new process and streamline their procedures.
Finally, foreign document requirements for the Work Permit Exemption are somewhat eased with respect to the Work Permit requirements: while no consular legalization is required, any document issued in a foreign language will still need to undergo translation into Vietnamese and be notarized.
Definition of Eligible Service Sectors
Companies in the following service sectors are, in principal, eligible to obtain Work Permit Exemptions for their foreign ICTs:
1. Business Services;
2. Communications services;
3. Construction and related engineering service;
4. Distribution services;
5. Educational Services;
6. Environmental services;
7. Financial services;
8. Health and Social related services;
9. Tourism and Travel related services;
10. Recreational, Cultural and Sporting services;
11. Transportation services.
In case the DeLISA is unable to decide if the Vietnamese entity is operating in one of these 11 service sectors per the definitions in the Annexes of the Circular, it can apply to the Ministry of Industry and Trade for their opinion. The Ministry then has 3 working days to respond to such a request.
If the DeLISA has decided against approving a Work Permit Exemption application based on their definition of the sector within which the company is operating, then the Vietnamese entity can submit an Appeal directly to the Ministry of Industry and Trade. The Ministry will then be required to respond to such a request within 5 working days.
Reminder: New Immigration Law Coming Into Effect on January 1, 2015
On January 1, 2015 a new Immigration Law will come into effect that introduces 20 different visa categories. Please see our Global Brief from August 22, 2014 for more details on this important change. Note that practical details on how this new law will be implemented remain unknown even now, a few weeks before the official implementation date. Pro-Link GLOBAL will continue to monitor the situation and will keep its clients with work in Vietnam updated on any relevant news on the subject.
ACTION ITEMS FOR EMPLOYERS
Employers should note that Work Permit Exemptions can be applied for beginning on December 22, 2014, if and when both the Vietnamese entity and the foreign employee meet the requirements as listed in this Global Brief. However, it is important to note that the determination of whether or not an entity falls under the listed service sectors in the Annexes is subject to interpretation by the DeLISA or, ultimately, the Ministry of Industry and Trade. Thus, at least initially, Pro-Link GLOBAL cannot advise with certainty which of our clients will qualify for the Work Permit Exemption. In the upcoming months, we will verify eligibility with the authorities on a case-by-case basis.
Since processing times for Work Permit Exemption applications are also unsure at this time, your Pro-Link GLOBAL Immigration Specialist might initially advise preparation of documents for both a Work Permit Exemption and a Work Permit application. This would especially be the case for urgent assignments in order to anticipate a situation where the Work Permit Exemption application is taking too long to process or is denied.
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Caveat Lector | Warning to Reader
This is provided as informational only and does not substitute for actual legal advice based on the specific circumstances of a matter. Readers are reminded that Immigration laws are fluid and can change a moment’s notice without any warning. Please reach out to your local Pro-Link GLOBAL specialist should you require any additional clarification. This alert was prepared by Pro-Link GLOBAL’s Knowledge Management team. Pro-Link GLOBAL worked with our PLG | KGNM Correspondent Office in Vietnam to provide you this update.
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