What Changes in Procedures for Granting Work
Permits for Foreign Workers from 2021?
Vietnam law allows enterprises, agencies,
organizations, individuals and contractors to recruit foreign workers for job
positions that Vietnamese workers cannot meet the needs of business operation
in Vietnam. However, the procedures to
apply for permit allowing foreign workers to work in Vietnam is complicated which many times labour lawyers
could be engaged to help provide more productive solutions to avoid delay or
dispute that lead to the negative impact to the rights and benefits of employer
or employee.
A foreign employee means a person who hold a
foreign nationality and is at last 18 years of age and has full legal capacity;
has qualifications, occupational skills, practical experience and adequate
health as prescribed by the Minister of Health; is not serving a sentence; does
not have an unspent conviction; is not undergoing criminal prosecution under
his/her home country’s law or Vietnam’s law; has a work permit granted by a
competent authority of Vietnam, except in the cases the foreign employees
are not required to have the work permit.
Job positions in which enterprises are employed by foreign workers
include managers, executives, experts and technical workers.
Manager means a person in charge of management of an enterprise or
the head or deputy head of an agency or organization.
Executive means the head or a person who directly administers
affiliated entities of an agency, organization or enterprise.
Expert means a foreign worker who obtains at least a bachelor’s
degree or equivalent and at least 03 years’ experience in his/her training
field in corresponding with the job position/job assignment that he/she will be
appointed in Vietnam; obtains at least 5 years’ experience and a practicing
certificate in corresponding with the job position that he/she will be
appointed in Vietnam; or falls under a special case subject to decision of the
Prime Minister according to a request of the Ministry of Labor, War Invalids
and Social Affairs.
Technical worker means a foreign worker who has been trained in
technical field or another major for at least 01 year and have worked for at
least 03 years in his/her training field; or obtains at least 5 years’ experience
in corresponding with the job position that he/she will be appointed in
Vietnam.
Before applying for a work permit for a foreign worker, at least
30 days before the date on which foreign workers are expected to be employed,
the employer (except contractor) shall request to determine the demand for
foreign workers for every job position for which Vietnamese workers are
underqualified and send a corresponding report to the People’s Committee of
province where the foreign workers are expected to work.
The People’s Committee of province shall issue a document
specifying accepted job positions and non-accepted job positions within 10
working days after receiving the foregoing report on demand for foreign workers
or report on change thereof.
At least 15 working days before the day on which a foreign worker
starts to work, the employee shall submit an application for work permit to the
Department of Labor, War Invalids and Social Affairs of the province where
he/she is expected to work.
Within 5 working days after receiving a duly completed
application, the Department of Labor, War Invalids and Social Affairs of
province where the foreign worker is expected to work shall issue a work permit
to the foreign worker. The form of work permit shall be solely printed and
issued by the Ministry of Labor, War Invalids and Social Affairs. If the
application is rejected, a written explanation is required.
After the foreign worker is issued with a work permit, the
employer and the foreign worker must sign a written employment contract as per
Vietnam’s labor law before the date on which the foreign worker is expected to
work. The employer shall send that employment contract to the competent
authority that issue that work permit. The employment contract is the original
or a certified true copy.
In a number of cases, there are situation which employer engages
a foreign employee in a job but fails to perform sufficient work permit
procedures in time. When a labour dispute arise, it takes time to
prove the labour relationship between the parties and this would negatively
impact the right and benefits of the employee. It is therefore important to
ensure the labour compliance from both employer and employee side to avoid dispute.
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customers’ needs and provide clients with a high quality legal advice and services.
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