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THE GOVERNMENT
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SOCIALIST REPUBLIC
OF VIETNAM
Independence - Freedom – Happiness
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No.: 11/2016/ND-CP
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Hanoi, February
03, 2016
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DECREE
DETAILED
REGULATIONS ON IMPLEMENTING A NUMBER OF ARTICLES OF THE LABOR CODE REGARDING
FOREIGN WORKERS IN VIETNAM
Pursuant to the Law on organization of the
Government dated June 19, 2015;
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 this Decree on
detailed regulations on a number of articles of the Labor Code regarding
foreign workers in Vietnam.
Chapter I
GENERAL PROVISIONS
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This Decree provides detailed regulations for
implementation of the Labor Code regarding the issuance of work permits to
foreign citizens to work in Vietnam and the expulsion of foreign citizens who
are working in Vietnam without the work permits.
Article 2. Regulated entities
1. Workers who are foreign
citizens moving to Vietnam for employment (hereinafter referred to as the
foreign workers) for the purpose of:
a) Executing the labor contracts; or
b) Complying with the company’s internal reassignments;
or
c) Enforcing contracts or agreements on business,
commerce, finance, banking, insurance, science and technology, culture, sports,
education, vocational training and health; or
d) Providing services under contracts; or
dd) Offering services; or
e) Working for foreign non-governmental
organizations or international organizations in Vietnam that have been granted
with operating licenses in accordance with the Vietnam law; or
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h) Taking charge of establishing the commercial
presence; or
i) Working as managers, chief executive officers,
experts, technicians; or
k) Participating in the execution of bid contracts
and projects in Vietnam.
2. Employers of foreign
workers include:
a) Enterprises operating in accordance with the
Enterprise Law, the Investment Law or the International Treaties to which the
Socialist Republic of Vietnam is a signatory;
b) Foreign or Vietnamese contractors participating
in the bidding or executing contracts;
c) Representative offices, branches of enterprises,
agencies or organizations licensed by the competent authorities;
d) State agencies, political organizations,
sociopolitical organizations, sociopolitical professional organizations, social
organizations or socio-professional organizations;
dd) Foreign non-governmental organizations or
international organizations in Vietnam;
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g) Offices of foreign projects or international
organizations in Vietnam;
h) Executive offices of foreign investors in
business cooperation contracts or those of foreign contractors awarded
operating licenses by the law;
i) Law-practicing organizations in Vietnam in
accordance with the law;
k) Cooperatives and cooperative unions established
and operated in accordance with the Law on cooperatives;
l) Business associations or business unions
established in accordance with the law;
m) Business households or individuals licensed to
do business in accordance with the law.
Article 3. Foreign workers
being reassigned in the company, volunteers, experts, managers, chief executive
officers and technicians
1. Foreign workers internally
reassigned in the company are the managers, chief executive officers, experts
and technicians of a foreign enterprise which has established a commercial
presence in Vietnam, are temporarily reassigned within the same enterprise to
its commercial presence in Vietnam and have been employed by the foreign
enterprise for at least 12 months.
2. Volunteers are unpaid
foreign workers who voluntarily work in Vietnam to implement the International
Treaties to which the Socialist Republic of Vietnam is a signatory.
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a) Has a document certifying that he/she is an
expert of an overseas agency, organization or enterprise; or
b) Has a bachelor’s degree or equivalent or higher
qualifications provided that he/she has worked at least 03 years in his/her
training field in corresponding with the job position that he/she shall be
appointed in Vietnam and other special cases upon the consideration and
decision of the Prime Minister.
4. Managers and chief
executive officers are considered as foreign workers,
including:
a) Managers are persons in charge of managing the
companies as regulated in Clause 18 Article 4 of the Enterprise Law or heads or
vice-heads of agencies or organizations;
b) Chief executive officers are the heads who
directly manage subordinate units of agencies, organizations or enterprises.
5. Technicians are workers who
had undergone training in technique or other majors for at least 01 year and
have worked for at least 03 years in their training fields.
Chapter II
ISSUANCE AND REISSUANCE
OF WORK PERMITS AND EXPULSION OF FOREIGN WORKERS WITHOUT WORK PERMITS
Section 1. DETERMINATION OF JOB
POSITIONS AVAILABLE FOR FOREIGN WORKERS
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1. Determination of demand for
foreign workers
a) The employer (except for contractors) shall
determine the demand for foreign workers for every job position in which
Vietnamese workers are incompetent and send reports to the Chairperson of the
People’s Committee of the province or city directly under the Central
Government (hereinafter referred to as the Provincial People’s Committee) where
the planned working place of foreign workers is located. The employer shall
send a report to the Chairperson of the Provincial People’s Committee if the
demand for foreign workers is changed in the course of execution.
b) In the cases specified in Clause 4, 5 and 8
Article 172 of the Labor Code and point e, point h Clause 2 Article 7 herein,
employers are not required to determine the demand for foreign workers if such
foreign workers belong to.
2. The Chairperson of the Provincial
People’s Committee shall issue a written approval to the employer for the
employment of foreign workers in each job position.
Article 5. Employment of
foreign workers by contractors
1. Before recruiting foreign
workers, the contractor shall specify the quantity, qualifications,
professional capacity and experience of foreign workers that are needed for
executing the contract in Vietnam and send written request for the recruitment
of Vietnamese workers to the job positions available for foreign workers
(enclosed with the investor’s certification) to the Chairperson of the
Provincial People’s Committee where the contract is executed.
If the contractor wishes to change or increase the
declared number of workers, the plan for changing or increasing demand for
workers of such foreign contractor must be certified by the investor.
2. The Chairperson of the
Provincial People’s Committee shall direct local agencies and organizations to
introduce and supply Vietnamese workers to the contractor. If Vietnamese
workers are not introduced or supplied to the contractor within 02 months from
the day on which the written request for 500 Vietnamese workers or more is
received, or within 01 month from the day on which the request for fewer than
500 Vietnamese workers is received, the Chairperson of the Provincial People’s
Committee shall consider allowing the contractor to recruit foreign workers to
hold the job positions in which Vietnamese recruit are incompetent.
3. The investor shall
supervise and request the contractor to conform with the declaration of the
employment of Vietnamese workers and foreign workers; provide guidance, urge
and inspect the contractor’s compliance of the regulations on recruitment and
employment of foreign workers in accordance with the Vietnam law; monitor and
manage foreign workers to comply with the Vietnam law; send quarterly reports
to Services of Labor, War Invalids and Social Affairs on the contractor’s
recruitment, employment and management of foreign workers as regulated by the Ministry
of Labor, War Invalids and Social Affairs.
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Article 6. Report on employment
of foreign workers
1. The Provincial People’s
Committee shall submit annual reports or unscheduled reports to the Ministry of
Labor, War Invalids and Social Affairs on demand for foreign workers, approval
for demand for foreign workers and management of foreign workers working in the
province.
2. Every 06 months and every
year, the Service of Labor, War Invalids and Social Affairs shall submit
reports on foreign workers working in the province as regulated by the Ministry
of Labor, War Invalids and Social Affairs.
Section 2. FOREIGN WORKERS
EXEMPT FROM WORK PERMITS
Article 7. The cases in which
the foreign workers are exempt from applying for the work permits
1. The foreign workers
regulated 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
foreign workers are exempt from work permits, including:
a) The workers are internally reassigned in the
companies which engage in 11 service industries in the Vietnam’s WTO
commitments on services, including: business, communication, construction,
distribution, education, environment, finance, health, tourism, culture,
entertainment and transportation;
b) The workers enter Vietnam to provide
professional and technical advisory services or perform other tasks serving the
research, construction, appraisal, assessment, management and execution of
programs and projects funded by ODA according to the International Treaties on
ODA between the competent authorities of Vietnam and other countries;
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d) The workers are appointed by foreign agencies or
organizations to teach or do research in international schools under the
management of foreign diplomatic missions or international organizations in Vietnam
or the workers are permitted to teach or do research in educational and
training institutions in Vietnam by the Ministry of Education and Training;
dd) The workers are volunteers who have obtained
the certification of the foreign diplomatic missions or international
organizations in Vietnam;
e) The workers enter Vietnam to hold the positions
of experts, managers, chief executive officers or technicians for a period of
under 30 days and an accumulated working period of under 90 days per year;
g) The workers enter Vietnam to implement
international agreements to which central or provincial agencies and
organizations are signatories in accordance with the law;
h) Students who are studying in schools or training
institutions in foreign countries execute their practicum at agencies,
organizations or companies in Vietnam upon agreements;
i) Relatives of members who are executing their
functions in foreign missions in Vietnam upon the approval of the Ministry of
Foreign Affairs, unless otherwise stated in the International Treaties to which
the Socialist Republic of Vietnam is a signatory;
k) Workers are holders of Official Passports for
working in state agencies, political organizations or sociopolitical
organizations;
l) Other cases decided by the Prime Minister at the
request of the Ministry of Labor, War Invalids and Social Affairs.
Article 8. Certification of
foreign workers eligible for exemption from work permits
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2. The employer shall request
the Service of Labor, War Invalids and Social Affairs of the province where the
planned working place of foreign workers is located to certify that such
foreign workers are eligible for exemption from work permits at least 07
working days before the day on which they start to work, except for the cases
stated in Clause 4 and Clause 5 Article 172 of the Labor Code and Point e
Clause 2 Article 7 herein.
The duration of a certification of foreign worker’s
eligibility for exemption from work permits is specified in Article 11 herein
and shall not exceed 02 years.
3. The application for the
certification of exemption from work permit consists of:
a) The written request for the certification that
the foreign workers are exempt from work permits;
b) The list of foreign workers which specifies
their full names, ages, genders, nationalities, passport numbers, staring and
ending dates of employment and their job positions;
c) Documents proving that the foreign workers are
eligible for exemption from the work permit;
d) Documents proving that the foreign workers are
eligible for exemption from the work permits include 01 photocopy of each kind
enclosed with its original for comparison or 01 certified copy of each kind;
the documents of foreigners are exempt from consular legalization but they must
be translated into Vietnamese and authenticated in accordance with the Vietnam
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
PERMITS
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1. The worker is capable of
civil acts as prescribed by law.
2. The worker’s health is fit
for working.
3. The worker is a manager,
chief executive officer, expert or technician.
4. The worker is not a
criminal or liable to criminal prosecution in accordance with the Vietnam law
and the foreign country’s law.
5. The employment of the
foreign worker is approved in writing by a state competent authority.
Article 10. Application for
the work permit
An application for the work permit consists of:
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.
The health certificate or report on medical
examination which is issued by the foreign or Vietnamese authorized health
organizations or agencies and takes effect within 12 months from the signing
date of conclusion of heath status to the date of application.
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The criminal record or written certification that
the foreign worker is not a criminal or liable to criminal prosecution must be
issued within 06 months prior to the submission of the application.
4. The written certification
that the worker is a manager, chief executive officer, expert or technician.
For some jobs and works, the written certification
of the qualification of the foreign worker can be replaced with one of the
following papers:
a) Certificate of recognition which is issued by
the competent authority of the foreign country if the worker is an artist in
the traditional professions;
b) The documents proving experience of foreign
soccer players;
c) The pilot license 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 who works in airplane
maintenance industry.
5. 02 color pictures (4cm x
6cm, white background, frontal face, bareheaded and no colorful glasses) that
are taken within 06 months ahead of the date of application.
6. Certified copy of passport
or a substitute for passport or other license for international travel which is
unexpired in accordance with the law.
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a) The foreign workers regulated in Point b Clause
1 Article 2 herein must have papers of the foreign enterprise showing that they
are appoint 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 appointed to work in Vietnam;
b) The foreign workers regulated in Point c Clause
1 Article 2 herein must have contracts or agreements sign by the Vietnamese
partner and the foreign partner, including the agreements on sending foreign
workers to work in Vietnam;
c) The foreign workers regulated in Point d Clause
1 Article 2 herein must have service contracts signed by the Vietnamese partner
and the foreign partner and the papers proving that the foreign workers have
worked for the foreign enterprise without commercial presence in Vietnam for at
least 02 years;
d) The foreign workers regulated in Point D Clause
1 Article 2 herein must have the papers made by the service provider proving
that the foreign workers are appointed to Vietnam to negotiate the service
supply;
dd) The foreign workers regulated in Point e Clause
1 Article 2 herein must have certificates issued by the foreign
non-governmental organization or international organization that has been
granted with operating license in accordance with the Vietnam law;
e) The foreign workers regulated in Point h Clause
1 Article 2 herein must have the paper made by the service provider who
appoints such foreign workers to Vietnam to establish its commercial presence;
g) The foreign workers regulated in Point i Clause
1 Article 2 herein, 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 operation of such
foreign enterprise.
8. The application for the
work permit in a certain special cases includes:
a) If the foreign worker who is the holder of an unexpired
work permit wants to enter into the employment contract with another employer
at the job position which is the same with that defined in his work permit in
accordance with the law, the application for the work permit includes documents
regulated in Clause 1, 5, 6 and 7 herein and the work permit or certified copy
of the issued work permit;
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c) If the foreign worker whose work permit expires
as regulated in Article 174 of the Labor Code wants to continue his employment
at the job position which is the same with that defined in his work permit in
accordance with the law, the application for the work permit includes documents
regulated in Clause 1, 2, 3, 5, 6 and 7 herein and certificate of revocation of
his work permit;
d) If the foreign workers regulated at Point a, b
and c of this Clause have been issued with the work permits as regulated in the
Government's Decree No. 102/2013/ND-CP dated September 05, 2013 on detailed
regulations on implementing a number of articles of the Labor Code regarding
foreign workers working in Vietnam, they must submit documents proving their
eligibility as regulated in Clause 3 or Clause 4 or Clause 5 Article 3 herein.
9. Consular legalization and
certification of documents
a) Documents regulated in Clause 2, 3 and 4 of this
Article include 01 photocopy of each kind enclosed with its original for
comparison or 01 certified copy of each kind.
If the above-mentioned documents are issued by
foreign authorities, they must be applied for the consular legalization, except
for cases of exemption from the consular legalization as regulated in the
international treaties to which the Socialist Republic of Vietnam and relevant
foreign country are signatories or in the principle of reciprocity or as
regulated by the law; must be translated into Vietnamese and authenticated in
accordance with the Vietnam law.
b) Documents regulated in Clause 7 of this Article
include 01 photocopy of each kind enclosed with its original for comparison or
01 certified copy of each kind. If such documents are issued by foreign
authorities, they are exempt from the consular legalization provided that they
must be translated into Vietnamese and authenticated in accordance with the
Vietnam 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 following durations:
1. The duration of the labor
contract to be signed;
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3. The duration of the
contract or agreement signed by and between the Vietnamese partner and the
foreign partner;
4. The duration of the service
contract or agreement signed by and between the Vietnam partner and the foreign
partner;
5. The duration stated in the
paper made by the service provider who sends the foreign worker to Vietnam to
negotiate the service supply;
6. The duration stated in the
certificate of the foreign non-governmental organization or international
organization that has been granted with operating license in accordance with
the Vietnam law;
7. The duration stated in the
paper made by the service provider who appoints the foreign workers to Vietnam
to establish its commercial presence;
8. The duration stated 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. Order for issuing
the work permit
1. At least 15 working days
before the day on which the foreign worker intends to start his employment, 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 planned
working place of the such foreign worker is located.
2. Within 07 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 to the Service of Labor, War Invalids and Social Affairs that issued
such work permit.
Section 4. RE-ISSUANCE OF WORK
PERMIT
Article 13. The cases in which
the work permit is reissued
1. The unexpired work permit
is lost, damaged or the contents stated in the issued work permit are changed,
unless otherwise stated in Clause 8 Article 10 of this Decree.
2. The work permit is still
valid from 05 to 45 days.
Article 14. Application for
reissuance of the work permit
1. The written request for the
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 (4cm x 6cm,
white background, frontal face, bareheaded and no colorful glasses) that are
taken within 06 months ahead of the date of application.
3. The issued work permit
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b) If the contents stated in the issued work permit
are changed as regulated in Clause 1 Article 13 of this Decree, documents
providing such change are required;
c) If the work permit is still valid from 05 to 45
days as regulated in Clause 2 Article 13 of this Decree, the health certificate
or report on medical examination regulated in Clause 2 Article 10 of this
Decree and one of documents regulated in Clause 7 Article 10 of this Decree are
required;
d) If the foreign worker has been issued with the
work permit as regulated in the Government's Decree No. 102/2013/ND-CP dated
September 05, 2013 on detailed regulations on implementing a number of articles
of the Labor Code regarding foreign workers working in Vietnam, documents
proving his eligibility as regulated in Clause 3 or Clause 4 or Clause 5
Article 3 of this Decree are required.
4. Documents regulated in
Clause 3 of this Article include 01 photocopy of each kind enclosed with its
original for comparison or 01 certified copy of each kind; the documents issued
by foreign authorities are exempt from consular legalization but they must be
translated into Vietnamese and authenticated in accordance with the Vietnam
law.
Article 15. Order for
reissuing the work permit
1. If the work permit is
re-issued upon the cases prescribed in Clause 2 Article 13 of this Decree, from
05 to 45 days before the work permit expires, the employer must submit the
application for reissuance of the work permit to the Service of Labor, War
Invalids and Social Affairs where the former work permit has been issued.
2. Within 03 working days from
the day on which the sufficient application for reissuance of the work permit
is received, the work permit shall be re-issued by the Service of Labor, War
Invalids and Social Affairs. A written response and explanation shall be
provided if the work permit is not re-issued.
3. After the foreign worker
mentioned in Point a Clause 1 Article 2 of this Decree is re-issued with the
work permit, the employer and such foreign worker shall sign a written labor
contract in accordance with the labor law of Vietnam before the day on which
the foreign worker intends to continue the employment with the employer.
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 to the Service of Labor, War Invalids and Social Affairs that re-issued
such work permit.
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1. The duration of the work
permit reissued in the cases prescribed in Clause 1 Article 13 of this Decree
is equal to the duration of the issued work permit minus the period that the
foreign worker has worked up to the day the application for the reissuance of
the work permit is submitted.
2. The duration of the work
permit reissued in the cases prescribed in Clause 2 Article 13 of this Decree
shall follow the duration of one of the cases regulated in Article 11 of this
Decree but not exceed 02 years.
Section 5. REVOCATION OF THE
WORK PERMIT AND EXPULSION OF FOREIGN WORKER
Article 17. Revocation of the
work permit
1. The work permit expires as
regulated in Clause 1, 2, 3, 4, 5, 7 and 8 Article 174 of the Labor Code.
2. The work permit is revoked
because the employer or the foreign worker fails in the compliance with
regulations of this Decree.
3. Order for revoking the work
permit
a) As for the cases prescribed in Clause 1 of this
Article, the employee shall revoke the work permit of the foreign worker and
submit to the Service of Labor, War Invalids and Social Affairs where such work
permit is issued;
b) As for the cases prescribed in Clause 2 of this
Article, the Director of the Service of Labor, War Invalids and Social Affairs
where such work permit is issued shall make decision on revocation and send
notice to the employer who shall revoke the work permit of the foreign worker
and submit to the Service of Labor, War Invalids and Social Affairs;
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4. The Ministry of Labor, War
Invalids and Social Affairs provides in detailed for procedures for revoking
the work permit.
Article 18. Expelling the
foreign worker
1. The foreigner who works in
Vietnam without the work permit or certificate of eligibility for exemption
from the work permit as regulated in this Decree (hereinafter referred to as
the foreign worker working in Vietnam without the work permit) shall be
expelled in accordance with the Vietnam law.
2. The Service of Labor, War
Invalids and Social Affairs shall request the police agency to expel the
foreign worker working in Vietnam without the work permit.
If the organizations and individuals discover any
foreign worker working in Vietnam without the work permit, it should be
reported to the Service of Labor, War Invalids and Social Affairs where the
working place of such worker is located.
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 agency to expel such foreign worker.
Chapter III
IMPLEMENTATION
Article 19. Effect
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2. The Government's Decree No.
No. 102/2013/ND-CP dated September 05, 2013 on detailed regulations on
implementing a number of articles of the Labor Code regarding foreign workers
working in Vietnam; Point a Section 4 of the Government’s Resolution No.
47/NQ-CP dated July 08, 2014 shall be annulled from the effective date of this
Decree.
3. Transitional provision
a) The following documents: written approvals on
the employment of the foreign workers, certificates of eligibility for
exemption from the work permit and the work permits issued in accordance with
the Government's Decree No. 102/2013/ND-CP dated September 05, 2013 on detailed
regulations on implementing a number of articles of the Labor Code regarding
foreign workers working in Vietnam shall apply until they expire.
b) If the employer has submitted the reports on
explanation of demand for the foreign workers; the application for issuance or
reissuance of the work permit or the foreign workers’ certificates of
eligibility of exemption from the work permit before the effective date of this
Decree, the Government's Decree No. 102/2013/ND-CP dated September 05, 2013 on
detailed regulations on implementing a number of articles of the Labor Code
regarding foreign workers working in Vietnam shall apply.
Article 20. Responsibility for
the implementation
1. The Ministry of Labor, War
Invalids and Social Affairs shall assume the following responsibilities:
a) Providing guidelines for implementing this
Decree;
b) Giving approval on demand for foreign workers;
granting certificates of eligibility of exemption from the work permit; issuing
and reissuing the work permit; revoking the work permit; granting certificates
of having the work permit revoked and requesting the police agencies to expel
the foreign workers working in Vietnam without the work permit, applicable to
the foreign workers working for the employers regulated at Point d, D, e, g and
l Clause 2 Article 2 of this Decree;
c) Directing, speeding up, inspecting and
supervising the compliance with the law on the foreign workers working in
Vietnam.
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a) Providing guidelines on authority and procedures
for expelling the foreign workers working in Vietnam without the work permit;
b) Providing guidelines on granting visas to the
foreign workers in connection with the issuance or reissuance of the work
permit; granting certificates of eligibility of exemption from the work permit;
c) Quarterly, providing the Ministry of Labor, War
Invalids and Social Affairs with the information of the foreign workers who are
eligible for issuance of visas for working in organizations, agencies or
enterprise.
3. The Ministry of Finance
shall provide guidelines on the fees for issuance or reissuance of the work
permit, issuance of certificates of eligibility of exemption from the work
permit upon the cases regulated at Point b Clause 1 of this Article.
4. The Ministry of Industry
and Trade shall provide guidelines on foundations and procedures for
determining the cases in which the foreign workers are internally reassigned in
the companies to engage in 11 service industries in the commitment on services
between Vietnam and WTO.
5. Ministers, Heads of
ministerial agencies, Heads of Governmental agencies, Chairpersons of the
People’s Committees of provinces and central-affiliated cities shall implement
this Decree./.
ON BEHALF OF
THE GOVERNMENT
THE PRIME MINISTER
Nguyen Tan Dung
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