September 25, 2013
Further to the June 2013 release of a new Labor Code, the Vietnamese Ministry of Labor, Invalid and Social Affairs (MOLISA) recently issued the official decree which defines the implementation of the new Code as it relates to foreign national working in Vietnam. The new decree will take effect on November 1, 2013 and introduces changes to application processes for obtaining work permits and work permit exemptions, as well as introducing new qualifying categories for both.
Demand on Using Foreigners
As of November 1, 2013 companies wanting to hire foreign nationals due to lack of available qualified Vietnamese nationals will need to report their demand and seek approval from the People’s Committee of the province/city where the company’s head office is located. This demand report needs to be submitted once per year, and will need to be updated throughout the year with any changes. Approved positions will be confirmed in an approval letter issued by the Chairman of the People’s Committee.
Work Permit Application
From November 1 onwards the aforementioned approval letter will need to be submitted as part of the work permit application. In addition, intra-company transfer applicants will also need to provide evidence that the assignee indeed has worked for the company for at least 1 year prior to the intended start date of the assignment.
The previous requirement for local hires to advertise the position before applying for a work permit is no longer mentioned in the new decree. Nonetheless, some regional labor departments might still request the job to be advertised.
Requests to re-issue an expiring Work Permit will need to be submitted between 5 and 15 days before expiration of the current work permit. The requirement of having the position approved by the People’s Committee also applies to re-issued work permits.
New category qualifying for a work permit
Previously there were only 3 categories of workers that qualified for a work permit: Managers, Executives and Experts. The new decree has added a fourth category: Technical Workers. In order to qualify for this category, applicants will need to prove they have qualifications in a technical field (at least 1 year of study/training) and a minimum of 3 years of work experience in the field related to their proposed position in Vietnam.
New categories qualifying for work permit exemption
The new decree also introduces new categories of foreigners who are exempt from having to obtain a work permit:
- Foreign teachers assigned to work at international universities in Vietnam;
- Foreigners with (the equivalent of) a Master’s Degree or higher, who will be engaging in consultation, teaching, or conducting research at a university or college for a period of less than 30 days;
- Foreigners working in Vietnam within the framework of an international agreement involving central authorities and political/social organizations at the central level.
Changes to the work permit exemption process
Document requirements have always been extensive for the work permit exemption process. Although the new decree does not request less supporting documentation, the document conditioning requirements have been reduced significantly. Documents that were issued overseas no longer need to be notarized and legalized in the country of issuance, but will still require an official translation in Vietnamese.
Additionally, under the new law the Labor Department is held to a processing time of a maximum of 3 working days from date of application to issue a confirmation letter to foreigners exempt from a work permit.
ACTION ITEMS FOR EMPLOYERS
Companies in Vietnam should pay special attention to the new requirement that they not only file an annual demand report for positions that will need to be filled by foreigners, but also that they update this report throughout the year with any changes. Additionally, employers should note the additional category of Technical Workers who now can qualify for a work permit for Vietnam, as well as the new categories of foreigners who qualify for a work permit exemption.
If planning to hire a foreigner locally, please contact your Pro-Link GLOBAL Immigration Specialist immediately to verify if advertising of the position locally will still be required in your specific region.
Note that the implementation of any new immigration law or regulation can initially result in delays while the officials are getting used to the new process. Additional changes to new regulations and changing requirements are also not uncommon during the implementation phase of new immigration procedures.
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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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