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THE GOVERNMENT
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SOCIALIST REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
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No. 102/2013/ND-CP
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Hanoi, September 05, 2013
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DECREE
ELABORATING SOME
ARTICLES OF THE LABOR CODE ON FOREIGN WORKERS IN VIETNAM
Pursuant to the Law on Government organization dated December 25, 2001;
Pursuant to the Labor Code dated June 18, 2012;
At the request of the Minister of Labor, War Invalids and Social
Affairs;
The Government promulgates a Decree on elaborating some Article of the
Labor Code on foreign workers in Vietnam,
Chapter 1.
GENERAL PROVISIONS
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This Decree elaborates some Articles of the Labor Code on the issuance of
work permits to foreign citizens that work in Vietnam, the expulsion of foreign
citizens that work in Vietnam without work permits.
Article 2. Subjects of application
1. Workers being foreign citizens that work in
Vietnam (hereinafter referred to as foreign workers) in one of the forms below:
a) Working under labor contracts;
b) Being reassigned within the company;
c) Implementing contracts or agreements on business, commerce, finance,
banking, insurance, inspection plan, culture, sports, education, vocational
training, and health;
d) Providing services under contract;
dd) Offering services;
e) Working for foreign non-governmental organizations or international
organizations in Vietnam that are allowed to operate within Vietnam’s law;
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h) The person in charge of establishing the commercial presence;
i) Managers, executive officer, experts, technicians>
k) Participating in the execution of contracts and projects in Vietnam.
2. Employers of foreign workers include:
a) Enterprises operating within the Law on Enterprises, the Law on
Investment, or the International Agreements to which the Socialist Republic of
Vietnam is a signatory;
b) Foreign or Vietnamese contractors (main contractors, subcontractors);
c) Representative offices, branches of enterprises, agencies,
organizations, and contractors licensed by competent authorities;
d) State agencies;
dd) Foreign non-governmental organizations, political organizations,
socio-political organizations, socio-political-professional organizations,
social organizations, socio-professional organizations, international organizations
in Vietnam;
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g) Offices of foreign projects or international organizations in Vietnam;
h) Operating offices of foreign partners in business cooperation contracts
in Vietnam;
i) Law-practicing organization in Vietnam;
k) Cooperatives and associated cooperatives established and operated
within the Law on Cooperatives;
l) Public service agencies established within the law;
m) Business household and individuals allowed to do business within the
law.
Article 3. Interpretation of terms
In this Decree, the terms below are construed as follows:
1. Reassigned foreign workers are the managers,
executive officers, experts, and technicians of a foreign enterprise that has
established a commercial presence in Vietnam, are temporarily reassigned within
the same enterprise to a commercial presence in Vietnam, and has been employed
by the foreign enterprise for at least 12 months.
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3. Experts are foreign workers that are recognized as
experts, or foreign engineers, bachelors that have worked at least 05 years in
their fields.
4. Technicians are foreign workers that had undergone
technical training for at least 01 year and have worked for at least 03 years
in their fields.
Chapter 2.
ISSUANCE OF WORK PERMIT, REISSUANCE OF WORK PERMIT,
EXPULSION OF FOREIGN WORKERS WITHOUT WORK PERMIT
SECTON 1. DETERMINATION OF POSITIONS AVAILABLE FOR
FOREIGN WORKERS
Article 4. Demand for foreign workers
1. Annually, the employer (except for contractors)
shall determine the demand for foreign workers for every position in which
Vietnamese workers are not competent, and send a report to Presidents of the
People’s Committees of the province or central-affiliated city (hereinafter
referred to as the People’s Committee of the province) where the head office of
the employee is situated. The employer shall send a report to the President of
the People’s Committee of the province if the demand for foreign workers is
changed during the implementation.
2. The President of the People’s Committee of the
province shall issue a written approval to the employer for the employment of
foreign workers in each position.
Article 5. Demand for foreign workers of the
contractor
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The assessment and selection of contractors must comply with the
regulations on employment in the invitation to tender and other regulations on
tendering of Vietnam’s law.
2. When the contract is executed, the investor shall
carry out supervise and request the contractor to stick to the commitment in
the tendering documents in terms of employment of Vietnamese workers and
foreign workers.
3. Before recruiting foreign workers, the contractor
shall send a written request for the employment of Vietnamese workers in the
positions made available for foreign workers (enclosed with a certification of
the investor) to the President of the People’s Committee of the province where
the contract is executed.
Where the contractor wishes to change or increase the number of workers in
the tender, the investor shall certify change or increase of workers of the
foreign contractor.
4. The President of the People’s Committee of the
province shall direct local agencies to introduce and supply Vietnamese workers
for the contractor. If Vietnamese workers are not provided for the contractor
within 02 months from the day on which the written request for 500 Vietnamese
workers is received, or within 01 month from the day on which the request for
fewer than 500 Vietnamese workers is received, the President of the People’s
Committee of the province shall consider allowing the contractor to recruit
foreign workers hold the positions in which Vietnamese workers are not
competent.
5. The investor shall provide guidance, urge, and
inspect the compliance of the regulations on employment of foreign workers in
accordance with law; monitor and ensure that foreign workers comply with
Vietnam’s law; send quarterly reports to Services of Labor, War Invalids and
Social Affairs on the contractor’s recruitment, employment and management of
foreign workers according to regulations of the Ministry of Labor, War Invalids
and Social Affairs.
6. Quarterly, Services of Labor, War Invalids and
Social Affairs shall cooperate with the police and relevant agencies in
inspection the compliance with Vietnam’s law of the foreign workers working for
local contractors.
Article 6. Report on employment of foreign workers
Every 06 months and every year, the Service of Labor, War Invalids and
Social Affairs shall report the demand for foreign workers to the Ministry of
Labor, accepted demand for foreign workers, and the employment of foreign
workers working locally.
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Article 7. The cases in which the foreign worker is
exempt from applying for the work permit
1. The foreign workers mentioned in Clause 1, Clause
2, Clause 3, Clause 4, Clause 5, Clause 6, Clause 7, and Clause 8 Article 172
of the Labor Code.
2. Other cases in which the work permit is not
issued:
a) The workers that are reassigned within the enterprises engaged in
within 11 service industries in the commitment on services between Vietnam and
WTO, including: business, communication, construction, distribution, education,
environment, finance, health, tourism, entertainment, and transportation;
The Ministry of Industry and Trade shall provide guidance on the basis and
procedure for identifying reassigned foreign workers within 11 aforesaid
service industries.
b) The workers enter Vietnam to technical advisory services or perform
other tasks serving the research, development, appraisal, assessment,
management, and execution of programs and projects funded by ODA according to
the International Agreements on ODA between competent authorities of Vietnam
and other countries;
c) The workers are issued with the license for the practice of journalism
in Vietnam by the Ministry of Foreign Affairs;
d) The workers are teachers of foreign organizations that are sent to
Vietnam by such organizations to teach in international schools under the
management of foreign diplomatic missions or international organizations in
Vietnam;
dd) The workers are volunteers;
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e) The workers hold master’s degrees or higher and provide consultancy,
teach or conduct scientific research at institutions of higher education or
vocational colleges within 30 days;
The institutions of higher education or vocational colleges must make a
written certification of the consultancy, teaching, and scientific research of
the foreign workers.
g) The foreign workers enter Vietnam to implement international agreements
to which central state agencies, local state agencies, and central
socio-political organizations are signatories.
The central state agencies, local state agencies, and central
socio-political organizations are signatories shall send written notifications
to the agency authorized to issue work permits of the foreign workers’ entering
Vietnam to implement the international agreements to which they are
signatories.
h) Other cases decided by the Prime Minister at the request of the
Minister of Labor, War Invalids and Social Affairs.
Article 8. Procedure for certifying foreign workers
exempt from work permit
1. Services of Labor, War Invalids and Social Affairs
are authorized to certify the employee exempt from work permit.
2. The employer shall request the Service of Labor,
War Invalids and Social Affairs of the province where the foreign workers
regularly work to certify that such foreign workers are exempt from work permit
at least 07 working days before the day on which they start to work.
3. The application for the certification of exemption
from work permit consists of:
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b) The list of foreign workers, which specifies their full names, ages,
genders, nationalities, passport numbers, staring and ending dates, and their
positions;
c) Other papers proving that the foreign workers are exempt from the work
permit.
The papers proving that the foreign workers are exempt from the work
permit is 01 original or 01 copy; the papers that are made in foreign language
are exempt from consular legalization but they must be translated into
Vietnamese and authenticated in accordance with Vietnam’s law.
4. Within 03 working days from the day on which the
sufficient application is received, the Service of Labor, War Invalids and
Social Affairs shall send a written certification to the employer. A written
response and explanation shall be provided if the certification is rejected.
SECTION 3. ISSUANCE OF WORK PERMIT
Article 9. Conditions for issuing the work permit
1. The worker is capable of civil acts as prescribed
by law.
2. The worker’s health is suitable for his or her
job.
3. The worker is a manager, executive officer, expert,
or technician.
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4. The worker is not a criminal or liable to criminal
prosecution according to Vietnam’s law and the foreign country’s law.
5. The employment of the foreign worker is approved
in writing by a competent authority.
Article 10. Application for the work permit
1. The written request for the work permit made by
the employer in accordance with regulations of the Ministry of Labor, War
Invalids and Social Affairs.
2. The health certificate issued in the worker’s home
country or in Vietnam as prescribed by the Ministry of Health.
3. The written certification that the worker is not a
criminal or liable to criminal prosecution according to Vietnam’s law and the
foreign country’s law, which is made within the previous 06 months from the day
on which the application is submitted.
4. The written certification that the worker is a
manager, executive officer, expert, or technician.
For some jobs and works, the written certification of the qualification of
the foreign worker shall be replaced with one of the papers below:
a) The written certification that the worker is an artist in the
traditional professions, which is issued by the competent authority of the
foreign country;
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c) The pilot certificate issued by a Vietnam’s competent authority to the
foreign pilot;
d) The license for airplane maintenance issued by a Vietnam’s competent
authority to the foreign worker that maintains airplanes.
5. The written approval for employment of foreign
workers given by the President of the People’s Committee of the province.
6. 02 color pictures ( 4 cm x 6 cm, bareheaded,
frontal, clear face, ears, no glasses, white background) that are taken within
the previous 06 months from the day on which the application is submitted.
7. The copy of the passport or an equivalent paper,
which is unexpired.
The papers mentioned in Clause 2, Clause 3 and Clause 4 of this Article is
01 original or copy; the papers in foreign languages must be consularly
legalized, except for the cases in which consular legalization is expired
according to the International Agreements to which Vietnam and the foreign
country are signatories or following the principle of reciprocity, be
translated into Vietnamese, and authenticated in accordance with Vietnam’s law.
8. Other papers related to the foreign workers:
a) The foreign workers mentioned in Point b Clause 1 Article 2 of this
Decree must have papers of the foreign enterprise showing that they are sent to
work at the commercial presence of such foreign enterprise in Vietnam, and the
papers proving that they have been employed by such foreign enterprise for at
least 12 months before they are sent to work in Vietnam;
b) The foreign workers mentioned in Point c Clause 1 Article 2 of this
Decree must have contracts or agreement sign by the Vietnamese partner and the
foreign partner, including the agreements on sending foreign workers to
Vietnam;
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d) The foreign workers mentioned in Point dd Clause 1 Article 2 of this
Decree must have the paper made by the service provider that sends the foreign
workers to Vietnam to negotiate the service provision;
dd) The foreign workers mentioned in Point e Clause 1 Article 2 of this
Decree must have the paper proving that the foreign non-governmental
organization or international organization is allowed to operate within
Vietnam’s law;
e) The foreign workers mentioned in Point h Clause 1 Article 2 of this
Decree must have the paper made by the service provider that sends the foreign
workers to Vietnam to establish its commercial presence;
g) The foreign workers mentioned in Point b Clause 1 Article 2 of this
Decree, who participate in the operation of the foreign enterprise that has
established its commercial presence in Vietnam, must have papers proving the
foreign workers’ eligibility to participate in such foreign enterprise.
The papers mentioned in this Clause are 01 original or 01 copy; the papers
that are made in foreign language are exempt from consular legalization but
they must be translated into Vietnamese and authenticated in accordance with
Vietnam’s law.
Article 11. Duration of the work permit
The duration of a work permit shall not exceed 02 years, and is equal to
one of the durations below:
1. The duration of the labor contract to be signed;
2. The duration of assignment in Vietnam decided by
the foreign partner;
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4. The duration of the service contract or agreement
between the Vietnam partner and the foreign partner;
5. The duration stated in the paper made by the
service provider that sends the foreign worker to Vietnam to negotiate the
service provision;
6. The duration stated in the certificate of foreign
non-governmental organization or international organization operating within
Vietnam’s law;
7. The duration in the paper made by the service
provider that sends the foreign workers to Vietnam to establish its commercial
presence;
8. The duration in the paper proving the foreign
worker’s eligibility to participate in the operation of a foreign enterprise
that has established its commercial presence in Vietnam.
Article 12. Procedure for issuing the work permit
1. At least 15 working days before the day on which
the foreign worker intends to start working, the employer shall submit the
application for the work permit to the Service of Labor, War Invalids and
Social Affairs of the province where the foreign worker works for the employer
the whole time.
Where the foreign worker does not work for the employer in the same
province the whole time, the application for the work permit shall be submitted
at the Service of Labor, War Invalids and Social Affairs of the province where
the employer's head office is situated.
2. Within 10 working days from the day on which the
sufficient application is received, the Service of Labor, War Invalids and
Social Affairs shall issue the work permit to the foreign worker using the form
provided by the Ministry of Labor, War Invalids and Social Affairs. A written
response and explanation shall be provided if the work permit is not issued.
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Within 05 working days from the day on which the labor contract is signed,
the employer shall send a copy of the signed labor contract and a copy of the
work permit issued to the Service of Labor, War Invalids and Social Affairs
that issued such work permit.
SECTION 4. ISSUANCE OF WORK PERMIT
Article 13. The cases in which the work permit is
reissued
1. The work permit is lost, damaged, or the contents
of the work permit such as name, date of birth, nationality, passport number,
or workplace is changed;
2. The work permit expires.
Article 14. Application for reissuance of the work
permit
1. The written request for reissuance of the work
permit made by the employer in accordance with regulations of the Ministry of
Labor, War Invalids and Social Affairs.
2. 02 color pictures ( 4 cm x 6 cm, bareheaded, frontal,
clear face, ears, no glasses, white background) that are taken within the
previous 06 months from the day on which the application is submitted.
3. Other papers related to the foreign workers:
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b) In the case defined in Clause 2 Article 13 of this Decree, the work permit
that is still valid for 05 - 15 more days must be presented (unless it is
lost), the health certificate mentioned in Clause 2 Article 10 of this Article,
the written approval for employment of the foreign workers given by the
President of the People’s Committee of the province, and one of the papers
below:
- The paper made by the foreign partner that sends
the foreign workers to Vietnam;
- The contract or agreement sign by the Vietnam and
the foreign partner, including the agreements on sending foreign workers to
Vietnam;
- The service contract signed by the Vietnam and the
foreign partner, or the paper proving that the foreign worker keeps negotiating
the service provision in Vietnam;
- The certificate of foreign non-governmental
organization or international organization operating within Vietnam’s law;
- The paper proving that the foreign worker keeps
working at a foreign non-governmental organization or international
organizations in Vietnam;
- The paper of made by a service provider that sends the
employee to Vietnam to establish its commercial presence;
- The paper proving the foreign worker’s eligibility
to participate in the operation of a foreign enterprise that has established
its commercial presence in Vietnam.
The papers mentioned in this Clause are be translated into Vietnamese and
authenticated in accordance with Vietnam’s law.
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1. For the cases prescribed in Clause 1 Article 13 of
this Decree:
a) The foreign worker shall notify the employer within 03 days from the
day on which the foreign worker discovers that his or her work permit is lost,
damaged or the contents of the work permit are changed;
b) The employer shall submit an application for the reissuance of the work
permit to the Service of Labor, War Invalids and Social Affairs that issued it
within 05 working days from the day on which the employer is notified by the
foreign worker.
2. For the cases prescribed in Clause 2 Article 13 of
this Decree:
05 - 15 days before the work permit expires, the employer shall submit an
application for the reissuance of the work permit to the Service of Labor, War
Invalids and Social Affairs that issued it.
3. Within 03 working days from the day on which the
sufficient application for the reissuance of the work permit is received, the
Service of Labor, War Invalids and Social Affairs shall reissue the work
permit. A written response and explanation shall be provided if the work permit
is not reissued.
4. After the foreign worker mentioned in Point a
Clause 1 Article 2 of this Decree is reissued with the work permit, the
employer and the foreign worker shall sign a written labor contract in
accordance with Vietnam’s law before the day on which the employee intends to
return to work. The labor contract contents must be consistent with the
contents of the work permit reissued.
Within 05 working days from the day on which the labor contract is signed,
the employer shall send a copy of the signed labor contract and a copy of the
work permit reissued to the Service of Labor, War Invalids and Social Affairs
that reissued it.
Article 16. Duration of the reissued work permit
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2. The duration of the work permit reissued in the
cases in Clause 2 Article 13 of this Decree does not exceed 02 years, and is
equal to one of the following durations:
a) The duration of the labor contract to be signed;
b) The duration of assignment in Vietnam decided by the foreign partner;
c) The duration of the contract or agreement between the Vietnamese party
and the foreign party;
d) The duration of the service contract or agreement between the Vietnam
partner and the foreign partner;
dd) The duration stated in the paper made by the service provider that
sends the foreign worker to Vietnam to negotiate the service provision;
e) The duration stated in the certificate of foreign non-governmental
organization or international organization operating within Vietnam’s law;
g) The duration in the paper made by the service provider that sends the
foreign workers to Vietnam to establish its commercial presence;
h) The duration in the paper proving the foreign worker’s eligibility to
participate in the operation of a foreign enterprise that has established its
commercial presence in Vietnam.
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Article 17. Revocation of the work permit
1. The cases in which the work permit is revoked:
a) The contents of the application for the issuance or reissuance of the
work permit is found bogus;
b) The work permit expires;
c) The foreign worker or employer fails to comply with the work permit
issued;
d) The labor contract is terminated;
dd) The labor contract contents are not consistent with the contents of
the work permit issued;
e) The contract or agreement on business, commerce, finance, banking,
insurance, science and technology, culture, sports, education and vocational
training, or health is expired or terminated;
g) The foreign partner makes a written notification that the foreign
worker is no longer on assignment in Vietnam;
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i) The foreign worker is imprisoned, dead, or missing as declared by the
court;
k) A competent authority makes a written request for the revocation of the
work permit due to the violations against Vietnam’s law committed by the
foreign worker.
2. The Service of Labor, War Invalids and Social
Affairs is entitled to revoke the work permits they issued.
Article 18. Expelling foreign workers
1. The foreigners that work in Vietnam without the
work permit and do not fall into the cases in Article 7 of this Decree shall be
expelled in accordance with Vietnam’s law.
2. Services of Labor, War Invalids and Social Affairs
shall request the police to expel the foreigners that work in Vietnam without
the work permit.
Organizations and individuals shall report the foreigners working in
Vietnam without the work permit to Services of Labor, War Invalids and Social
Affairs upon discovery.
3. Within 15 working days from the day on which the
foreign worker is pronounced working in Vietnam without the work permit, the
Service of Labor, War Invalids and Social Affairs shall request the police to
expel that foreign worker.
4. The Ministry of Industry and Trade shall:
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b) Provide guidance on the issuance of visas to foreign workers after they
are issued or reissued with the work permits, or the application for the
issuance or reissuance of work permit is submitted;
c) Take charge and cooperate with the Ministry of Labor, War Invalids and
Social Affairs in providing guidance on the procedure for sending the list of
foreign workers issued and reissued with work permits to immigration agencies.
Chapter 3.
IMPLEMENTATION
Article 19. Effects
1. This Decree takes effect on November 01, 2013.
2. The Government's Decree No. 34/2008/NĐ-CP dated
March 25, 2008 on recruitment and management of foreign workers in Vietnam; the
Government's Decree No. 46/2011/NĐ-CP dated June 17, 2011 on amendments to the
Government's Decree No. 34/2008/NĐ-CP dated March 25, 2008 on recruitment and
management of foreign workers in Vietnam are annulled from the effective date
of this Decree.
3. The work permits that are still unexpired up to
the effective date of this Decree might not be renewed.
Article 20. Responsibility for the implementation
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2. Other Ministers, Heads of ministerial agencies,
Heads of Governmental agencies, Presidents of the People’s Committees of
central-affiliated cities and provinces are responsible for the implementation
of this Decree./.
FOR THE GOVERNMENT
THE PRIME MINISTER
Nguyen Tan Dung