Obtaining a work permit or a work permit exemption certification in Vietnam is often a concern for foreigners. Decree 152 caused some issues, especially with regard to the requirement to have a degree matching the job. This is no longer required. There is a new requirement to post the vacancy before starting the recruitment.
LEGAL UPDATE
Obtaining a work permit or a work permit exemption certification in Vietnam is always a concern for foreigners. Following several meetings between government authorities and business associations, the Government issued Decree No 70/2023/ND-CP (Decree 70) on 18 September 2023 to amend Decree No. 152/2020/ND-CP (Decree 152).
Decree 70 entered into force on 18 September as well except for the requirement to publish the vacancy on a specific website. More on this in section 4 of this update.
This update will highlight significant changes to the regulations governing work permits and work permit exemption certification. These changes encompass various aspects, each of which is detailed below.
1. Qualifications and Experience of Experts and Technical Workers
The requirement for foreign employees' education or training background to be relevant to their job position has been eliminated for expert positions. Now, there is no need for the degree to match the experience and job position. Technical workers no longer need their training field to be related to their experience and job position in Vietnam. They need only be trained for at least one year and have at least experience appropriate to the position. Also, the term "university degree" has been replaced with "university graduated," making certificates more acceptable.
2. Work Permit Exemption
Among other exemptions, Decree 70 states that foreigners in roles as manager, executive, principal, and deputy principal for educational institutions established by foreign diplomatic representative agencies or intergovernmental organisations can obtain work permit exemption certification as foreign teachers.
On a separate note, Decree 70 also amends the definition of "executive" to be the head of the branch, representative office or business location of an enterprise; or the head who directly administers at least one field of the agency, organisation or enterprise and is under the direct direction and administration of the head of the agency, organisation or enterprise. This enables the applicant to select an appropriate position for the work permit.
3. Certification of Documents
Vietnamese enterprises or organisations can certify copies of a foreigner's passports, eliminating the need for notarised or certified true copies, which will expedite the application process. Decree 70 also recognises the fact that Vietnamese translations of legalised documents issued by foreign organisations can be either notarised or certified instead of certified only as prescribed in Decree 152.
4. Job Posting
Starting from 1 January 2024, enterprises or organisations using foreigners must submit job postings 15 days before applying for foreign labour to the labour management authorities through the electronic information portal of the Department of Employment of the Ministry of Labour, War Invalids and Social Affairs (MOLISA) or the Portal of the Employment Service Center to be designated by the Chairman of the provincial or centrally municipal People's Committee. This should be done at least 15 days before the explanation report will be sent to MOLISA or the relevant Department of Labour, War Invalids and Social Affairs (DOLISA). If a foreigner will work in different locations within the same province, all work locations must be included in the application. Additionally, if they work in different provinces, the application should be submitted to MOLISA. Within three working days from his start date, the employer must also notify MOLISA and DOLISA where the foreigner is working about their presence in a prescribed form under Decree 70.
5. Determination of Foreign Employee Demand
Decree 70 requires enterprises and organisations (except contractors) to determine the demand for a foreigner for every job position for which a Vietnamese is under qualified and send an explanation report to MOLISA or DOLISA where the foreigner is expected to work. This should be done at least 15 days before the date on which a foreigner is expected to be employed. It used to be 30 days under Decree 152.
It is worth noting that in the event of a company name change with the same enterprise number, work permit reissuance is accepted without the need for a new foreign employee demand approval.
6. Authorities
Economic and industrial zone authorities no longer issue work permits or work permit exemption certifications. These responsibilities are now with MOLISA and DOLISA. The management of foreign employees is unified from central to local levels, with the Ministry of Public Security providing monthly reports to MOLISA.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
