VIETNAM – Guidance Circular Clarifies Work Permit Regulations
The Vietnamese government has finally issued a long expected Guidance Circular clarifying certain new work permit regulations introduced last year.
The Guidance Circular, effective 10 March 2014, gives details about the procedure for submitting employers’ demand on using foreign nationals, and also lists the documentary requirements justifying the qualifications of the applicant.
Demand on Using Foreigners
Every year (and during the year if any change), employers in Vietnam must report their demand and must also seek approval for using foreign nationals for each specific position where Vietnamese nationals cannot meet the employer’s requirements.
The demand shall be submitted at the Provincial Labour Department who will then forward the demand for approval to the People’s Committee of the province/city where the company’s head office in Vietnam is located. The demand must be lodged at least 30 days prior to the expected work commencement date at the Provincial Labour Department. Within 15 days the Labour Department shall inform the employer whether or not the People’s Committee has approved the demand.
The work permit application approval process by the Department of Labour will only start after receiving approval from People’s Committee so this step is extremely important.
The new circular does not provide any clarifications on what criteria are used by the People’s Committee to approve or reject the demand of using a foreign national in a certain position.
Documentary Requirements for Qualification of the Applicant
Previously, Manager and Executive were the only authorized positions for a foreign national working in Vietnam. The new Decree 102 and its related circular introduce “Specialists” and “Technical Workers”.
The documentary requirements to prove qualifications for the different positions are as follows:
For Managers and Executives:
- A document that verifies the Manager/Executive position such as a valid or expired work permit from any country; or a labour contract from any country; or an assignment letter confirming that the foreign national has worked as a Manager or Executive; or
- Any document issued by former employer(s) that confirms the foreign national was a Manager/ Executive.
According to the new circular, a university degree or a testimonial of five years' work experience is no longer required for Manager/Executive positions.
- A university (or higher) degree and work testimonial(s) of at least five years' working experience. Both the degree and work testimonial(s) should be in the field that matches the targeted job position in Vietnam; or
- A document issued by an overseas jurisdictional body/organisation showing specialised qualifications; or
- A document issued by the overseas employer certifying that the foreigner is a specialist in the targeted job position in Vietnam.
For Technical Workers:
- A document or confirmation letter issued by an overseas jurisdictional body/organisation or the overseas employer certifying that the foreigner has been trained for at least one year in the technical fields that match with the targeted position in Vietnam and
- A work testimonial issued by current or former employer(s) showing at least three years in a related technical field.
Background and Other Comments
On 6 September 2013 (effective 1 November 2013), Vietnam’s Ministry of Labour, Invalids and Social Affairs (MOLISA) issued a Decree (102/2013/ND-CP) defining the implementation of the new labour code as it pertains to foreign nationals working in Vietnam.
However, due to the absence of a Guidance Circular, Labour Departments have been reluctant to advise on the new Decree and sometimes have refused to receive work permit applications until they were provided more details on how to properly implement the Decree. After nearly four months of delays and confusion, the Guidance Circular was finally issued on 24 February and will take effect on 10 March 2014.
Work Permit Exemptions
An additional circular by the Ministry of Industry and Trade (MOIT) is expected to come out before the end of March to provide guidelines for the basis and procedures for work permit exemptions: i.e. how to certify that a foreign employee is a corporate transferee operating within one of the 11 sectors listed in Vietnam’s World Trade Organization (WTO) service commitment and therefore exempt from requiring a Work Permit.
- Note the timing and procedure for reporting demand, and allow enough lead time for this step.
- Note the documentary requirements for justifying the applicant’s qualifications.