HOW FOREIGNERS COULD WORK IN VIETNAM LEGALLY

Foreigners working in business set-up in Vietnam are expatriates which are normally required work permit in Vietnam.

As the Vietnam law’s restrictions to encourage employment of local employee over foreign employee, normally, the employment of an expatriate is limited to a managerial position or to a position which Vietnamese employee are not yet qualified.

There are exemption of work permit in Vietnam as following cases:

A capital contributing member or owner of a limited liability company which is registered to operate in Vietnam;
A member of the Board of Management of a shareholding company which is registered to operate in Vietnam;
A chief of a representative office or of a project of an international organization or a non-governmental organization in Vietnam;
The foreigner enters Vietnam for less than three months to offer services;
The foreigner enters Vietnam to work for less than three months or to handle an emergency case and that cannot adequately be addressed within Vietnam;
A lawyer who has received a Certificate for the practice of law in Vietnam granted by the Ministry of Justice;
The foreigner is a student studying and working in Vietnam;
An intra-corporate transferee working in Vietnam;
The foreigner provides expert and technical consultancy services or undertakes other tasks with respect to research, formulation, evaluation, monitoring and assessment, management and implementation of a program or project using official development aid (“ODA”);
The foreigner has a media license issued by the MOFA;
The foreigner is appointed by a competent authority of a foreign country to teach at an international school which is managed by a foreign diplomatic office or an international organization in Vietnam;
The foreigner a volunteer;
The foreigner has a master’s degree or higher or similar qualifications and provides consultancy, teaching, or conducts scientific research at a university or vocational college for a period not exceeding thirty (30) days; or
The foreigner implements an international agreement signed by a Vietnamese government authority, a provincial body or a central socio-political organization.

In order for an expatriate to be exempted from a work permit, the employer must file an application with the provincial labor authority.  Chairman of the provincial People’s Committee will be consulted and if approval, he/she will issue a written consent to each employer regarding the employment of expatriate.

In order to ensure compliance in immigration, labor employment, foreign owned enterprises are suggested to consult with employment lawyers in Vietnam.  We at ANT Lawyers, a law firm in Vietnam with offices in Hanoi and Ho Chi Minh City would be able to assist clients in employment matters and could be reached at email: ant@antlawyers.vn or office tel: +848 35202779.

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CASES THAT FOREIGNERS DO NOT HAVE TO APPLY FOR WORK PERMITS

Pursuant to Decree No. 11/2016/ND-CP of the Government that will take effect April 1st 2016, the below cases of foreigner will not have to apply for work permit in Vietnam:

• As capital contributing members or the owner of limited liability company.
• As member of the Managing Board of the joint stock company.
• As Head of the representative office, project of international organizations, non-governmental organizations in Vietnam.
• Entry into Vietnam for less than 03 months to carry out the service offering.
• Entry into Vietnam for less than 03 months to handle the incidents, technical situations and complicated technology arising that influence or threaten to production and business that Vietnam expert and foreign experts that currently in Vietnam cannot handle.
• As foreign lawyers that are licensed to practice law in Vietnam under the provisions of the Law on Lawyers.
• Under the provisions of the international treaties in which the Socialist Republic of Vietnam is a member.
• As pupils and students studying in Vietnam and working in Vietnam but the employer must notify 07 days with state authorities on the provincial labor.
• Moving within the enterprises in the range of 11 service sectors in the service commitments of Vietnam to the World Trade Organization, including: business, communication, construction, distribution, education, environment, finance, health, tourism, culture and transport;
• Entry into Vietnam to provide advisory services and technical expertise or perform other tasks to serve the research, construction, appraisal, monitoring, evaluation, management and implementation of programs and projects funded with official development assistance (ODA) as prescribed or agreed in international treaties on ODA signed between the competent authorities of Vietnam and foreign countries;
• Granted the work permit on information and press in Vietnam by the Vietnam Ministry of Foreign Affairs in accordance with law;
• Sent to Vietnam by agencies and foreign organizations to teach and research in the international school under the jurisdiction of the foreign diplomatic representative agencies or international organizations in Vietnam or the Ministry of Education and Training certificated for teaching and researching in the educational and training institutions in Vietnam;
• Volunteers certified by the foreign diplomatic representative agencies or international organizations in Vietnam
• Entry into Vietnam working in the positions of professional, manager, executive or technical employees with working duration of less than 30 days and no more than 90 cumulative days in 01 years;
• Entry into Vietnam to implement international agreements that agencies and organizations at the central and province have signed as in accordance with law;
• Pupils and students studying in abroad schools and training institutions that have internship agreements in the agencies, organizations and enterprises in Vietnam;
• Relatives of members of foreign representatives in Vietnam working after licensed by the Ministry of Foreign Affairs, except the case where international treaties that the Socialist Republic of Vietnam is a member that have other regulations;
• Have official passport to work for state agencies, political organizations and political – social organizations;
• Other cases decided by the Prime Minister on the proposal of the Ministry of Labour – Invalids and Social Affairs.

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VISA, WORK PERMIT AND PIT – WHAT ENTERPRISES SHOULD CONSIDER WHEN EMPLOYING FOREIGN WORKERS IN VIETNAM

Enterprises employing foreign workers in Vietnam should be aware of issues on visa, work permit, liability of enterprise related to Personal Income Tax (PIT) of the foreign employee as declaration, payment and finalization to ensure legal compliance.

Visa

Foreigners eligible working in Vietnam are foreign investors whom contribute capital to set-up company in Vietnam, chief representative of NGO, lawyers licensed by Vietnam Ministry of Justice, foreigners workers with valid working permits in Vietnam. Working visa in Vietnam is granted to foreigner working legally in Vietnam. Working visa for foreigner in Vietnam has maximum length of 12 months. In the case the foreigner wishing to stay longer, he/she could apply fortemporary residence card for a period of up to three years. The application must be submitted to the provincial Immigration Department, and may include supporting documents such as a housing lease contract and an employer’s certificate of incorporation.

Work permit

Decree No. 102/2013/ND-CP elaborating some articles of the Labour Code on foreign workers in Vietnam states that for foreigners that requires work permit in Vietnam, the employing enterprises will have to apply for work permit for such employee before they start working. The head of the provincial People’s Committee will have to approve the necessity to hire foreigners before the Vietnam Department of Labour, Invalid and Social Affairs (DOLISA) grants work permit in Vietnam. For foreigners belonging to one of the cases exempted from work permit, the employing enterprises will have to request the provincial DOLISA where foreign workers regularly work to certify that such foreign workers are exempted before the day on which they start to work.

Personal Income Tax obligation

Foreigners whom are subject of Personal Income Tax (PIT) in Vietnam are resident and non-resident workers. Foreigners who reside in Vietnam for less than 183 days in a tax year are considered non-residents for tax purposes. The first tax year is the consecutive 12 months period from arrival date in Vietnam, and the second tax year will follow the calendar year. Non-resident foreigners working and earning income in Vietnam are subject to PIT at a flat rate of 20%. Foreigners who reside in Vietnam for 183 days or more in a tax year are considered tax residents in Vietnam and subject to PIT at progressive rates on their world-wide employment income. Incomes of foreign workers in Vietnam are based on salaries, wages, allowances and other benefits such as housing allowances, memberships at sport and health clubs, personal entertainments. The expenses not being subject to PIT are including return air tickets between Vietnam and home country of the foreigners, school tuition fees of children of foreigners which employing enterprises pay on their behalf.

Vietnam has signed double tax agreements (DTA) with a number of countries, in which tax exemptions may be applied in specified circumstances. To request for tax exemptions, the application has to submit the request to the Ministry of Finance.

ANT Lawyers, the law firm in Vietnam in Hanoi and Ho Chi Minh City assist clients to provide visa, work permit, and Personal Income Tax (PIT) services that ensure clients to take advantage of international assignments, ensure mobility and legal compliance.  We could be reached at office tel +848 35202779, email:ant@antlawyers.vn or our partner directly at +84 912 817 823.

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NEW LAW THAT IMPACT WORK PERMIT IN VIETNAM FOR FOREIGNERS

Vietnam has recently issued a new law that put a stricter control on foreigners working in Vietnam.  With the changes being implemented from early November of 2013, the process to apply for work permit in Vietnam will take longer and would cost extra fees.

The work permit for foreigners in Vietnam will now require the approval from head of People’s Committee and that once it is issued, it will only be good for two years as max in compared with three years as regulated earlier.  ANT Lawyers’ employment and labour lawyers in Vietnam keep track of the changes in the employment and labour law in Vietnam and assist our client to cope with changes.   The Government has issued Decree 102/2013/ND-CP elaborating some articles of the new Vienam Labour Code 2012 on foreign workers in Vietnam. Accordingly, the employer applying for work permits of foreign employees must comply with the following procedure: step 1) make a report stating clearly the demand of employee in their companies, then send to the President of People’s Committee in order to apply for the permission of foreign worker employment; step 2) prepare documents and submit for work permits at Department of Labor and Social Welfare before 15 days at least of the date employees start work. The work permits shall be valid with maximum term of 2 years.

The new Decree also allows four group of others to work in Vietnam, including: i) Volunteers who work voluntarily without salary or wage; ii) The persons who are responsible to establish the commerce presences in Vietnam; iii) Managers, CEOs, specialists, technical workers who are trained in technology major at least 1 year and used to work at least 3 years in trained major; iv) The persons who are engaging in bidding projects and other projects in Vietnam.

Decree 102/20113/ND-CP takes effect on November 1st 2013 and replaces Decree 34/2008/ND-CP. If you need to apply for the work permits or relevant issues, we could assist.  ANT Lawyers, your lawyers in Vietnam

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HO CHI MINH CITY: FOREIGNERS’ WORK PERMIT IN VIETNAM IS NO LONGER RENEWABLE

Ho Chi Minh City is not going to renew expired work permit in Vietnam for foreigners, noticed by Ho Chi Minh City Department of Labor, War Invalids and Social Affairs.

Ho Chi Minh City: foreigners’ work permit in Vietnam is no longer renewable

Ho Chi Minh City Department of Labor, War Invalids and Social Affairs (DOLISA) issued Notice No.6107/SLDTBXH-VL on May 16th, 2014 guiding the implementation of Decree No.102/2013/ND-CP detailing a number of articles of the Vietnam Labor Coderegarding foreign workers in Vietnam. Pursuant to the notice hereof, in the case that expired work permits which has been issued under the provisions of Decree No.34/2008/ND-CP and Decree No.46/2011/ND-CP before the effective date of Decree No.102, enterprises shall apply to HCMC DOLISA for granting work permits under the issued procedures instead of renewal procedure provisions. In particular, for foreign workers having expired work permits and having desire to continue working in Vietnam, the sponsoring enterprise shall submit certificates of qualification, experience, criminal record in Vietnam and in foreign countries (judicial records), medical certificates and the sponsoring enterprise has to be approved by local People’s Committee to employ foreign workers.

As the current regulations, the foreign employee might be asked to present his or her work permit in Vietnam at entering or leaving Vietnam or when requested by government authority.  It is suggested that enterprise wishing to employ foreign workers and foreign workers to counsel with employment lawyers in Vietnam in order to ensure compliance.  

  ANT Lawyers is a Vietnam law firm with international standards, recognized by IFLR1000 on Financial and Corporate practice. We are an exclusive Vietnam member of Prae Legal, the global law firm network covering more than 150 jurisdictions. The firm provides a range of legal services as following to multinational and domestic clients.

Commercial

Dispute Resolution

Debt Recovery

Employment

Foreign Investment

Intellectual Property

International Trade and Taxes

Infrastructure and Project

Civil Matter

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REAL ESTATE LEGAL MATTERS IN VIETNAM

In general, it is not permitted to own land in Vietnam as a private entity because the land belongs to the people and the State of Vietnam thereby operates as the administrator.

However an ownership of a right to use land is permitted according to Vietnamese Law.  This so-called Land Use Right (“LUR”) Certificate provides the means to lease land from the State for Vietnamese and foreign people.  This LUR Certificate entitles the land users to protect their legitimate rights and interests.  The sale of a house or real estate is in fact the transfer of the rights for house ownership combined with the transfer of the land from the seller.  The right to use land can be directly acquired by different ways that are: lease from the state; sub-lease from a developer of a zone; transfer from another land user; allocation from the state.  The legal grounds for Land and House Law of Vietnam are stipulated in the Law on Housing 2005 of Vietnam as well as in the Law on Land 2003.  The rights and entitlements of holders of house ownership and the holders of the LUR Certificate are settled in this law.

According to Article 12 of the Law on Housing 2005, the name of the individual who holds the house ownership shall be written in the house ownership right certificate and his/her rights are stipulated in Article 21 that include for example the rights to posses; use; sell; lease; donate; exchange; lend or to let other people stay temporarily in the house.  As stipulated in Article 106 of the Law on Land 2003, the one who holds the LUR and house ownership certificate is entitled to exercise the full range of rights over the land/house. As such, land use rights and ownership of assets on the land are combined in the Certificate of Land Use Right and House Ownership Right (LURC).

But the possibilities to acquire land or houses depend on the individual/organization that wishes to do so, because Vietnamese, overseas Vietnamese and Foreigners do not have the same rights.  Especially for foreigners, it was often quite challenging to acquire land or houses in Vietnam. Before the year of 2009, foreigners could not legally acquire property but only could make a joint venture with a Vietnamese company. But the Resolution No. 19/2008(ND-QH12, effective January 2009, started to entitle foreigners to own houses in Vietnam under the conditions that the foreigner 1) is hired by an enterprise that currently operates in Vietnam and 2) must have at least a temporary residence card to purchase and own an apartment unit in Vietnam. This five-year piloting program that would end in 2014 is now discussed by the Vietnamese Prime Minister to continue this program after the first five years to support the real estate market and to make it more attractive for foreigners.

Even though about 80,000 expats live and work in Vietnam, only more than 400 cases of foreigners buying houses in Vietnam could be registered. Of course, this might be due to the difficulties for foreigners to buy houses before this pilot program . But this Resolution No. 19, which was guided by Decree No. 51/2009/ND-CP, still does not make it easy to operate in the real estate market in Vietnam for foreigners because of the complicated procedures to register ownership. After the first 5 years, the government stated to have the plan to review the pilot policy and the Ministry of Construction also opened up for the idea to allow foreigners to buy houses no matter if they work and do business here or if they want to buy real estates in Vietnam.

As the Vietnam’s real estate situation seems to stand before a turning point, it is necessary to keep up to date with all legal changes and developments. Due to the fact that Vietnamese law has special provisions for every organization or individual who wishes to operate with land and real estates related to House Law, it is inevitable to know about this legal circumstances in Vietnam.

ANT Lawyers could assist in different land and house related projects and matters such as land ownership, house purchase or sale and is aware of the differences between provisions on house law for foreigners and Vietnamese. Our professionals could advise clients about possibilities and potential risks concerning real estate laws, housing laws in Vietnam and furthermore could support clients with required procedures with the Vietnamese authorities.

ANT Lawyers constantly researches for the latest legal updates to ensure that we provide best and up-to-date services to clients whom are interested in real estate and and housing matters in Vietnam.

For advice or service request, please contact us via email ant@antlawyers.vn, or call +84 8 3520 2779.  To learn more about us, please visit www.antlawyers.vn.  

ANT Lawyers is a Vietnam law firm with international standards, recognized by IFLR1000 on Financial and Corporate practice.  We are an exclusive Vietnam member of Prae Legal, the global law firm network covering more than 150 jurisdictions.  The firm provides a range of legal services as following to multinational and domestic clients.

Commercial

Dispute Resolution

Debt Recovery

Employment

Foreign Investment

Intellectual Property

International Trade and Taxes

Infrastructure and Project

Civil Matter

This publication is designed to provide updated information of legal matters, and does not constitute professional advice.

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