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THE GOVERNMENT
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SOCIALIST REPUBLIC OF VIET NAM
Independence - Freedom – Happiness
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No. 46/2011/ND-CP
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Hanoi, June 17, 2011
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THE DECREE
ON AMENDING, SUPPLEMENTING SOME ARTICLES OF THE
DECREE NO. 34/2008/ND-CP DATED MARCH 25, 2008 OF THE GOVERNMENT ON EMPLOYMENT
AND ADMINISTRATION OF FOREIGN EMPLOYEES WORKING IN VIETNAM
Pursuant to the
Law on Government Organization dated December 25, 2001;
Pursuant to the
Labor Code dated June 23, 1994; Law No. 35/2002/QH10 dated April 2, 2002
amending and supplementing a number of Articles of the Labor Code; Law No.
74/2006/QH11 dated December 12, 2006 amending and supplementing a number of
Articles of the Labor Code; At the proposal of the Minister of Labor, War
Invalids and Social Affairs,
DECREES:
Article 1. Amending,
supplementing some Articles of the Decree No. 34/2008/ND-CP dated March 25.
2008 of the Government on employment and administration of foreign employees working
in Vietnam as following:
1. To supplement sub-clause (l) of Article 1.2 and sub-clause (m)
Article 1.2 as follows:
“l) Associations,
enterprise associations are established in accordance with Vietnam legal
regulations;
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2. To amend, supplement Article 4.2 and 4.3 as follows:
“2. An application
file to register the proposed recruitment of a foreigner: the foreigner shall
lodge two sets of an application file with the employer, the employer shall
administer one set and the other set shall be retained by the employer to
conduct procedures for registration for issuance of a work permit. Each set of
the application file shall comprise:
a/ Registration
slip regarding the proposed recruitment of the foreigner on the standard form
prescribed by the Ministry of Labor, War Invalids and Social Affairs;
b/ Legal record
issued by the authorized body of the country where the foreigner resided prior
to coming to Vietnam. If the foreigner has currently resided in Vietnam for six
(06) months or more, then there need only be a legal record issued by the
Vietnamese Department of Justice of the locality where the foreigner is residing.
c/ Health
certificate issued overseas or health certificate issued in Vietnam in
accordance with the regulations of the Ministry of Health. d/ Certificates of
specialist for highly technical qualifications of the foreigner:
For some
occupations, jobs, copies of certificates of specialist for highly technical
qualifications of the foreigner can be replaced by some documents as following:
- Certificate of
artisan in a traditional occupation supplied by foreign authorized agencies for
foreigners who are artisan in traditional occupation. - Confirmations or labor
certificates or labor contracts certifying that he or she has at least (05)
five years' experience in an occupation or trade, in operating production or in
managerial work and suitable with the occupation positions that foreigner plans
to take. Above confirmations with at least (05) five years’ experience are
certified by enterprises, agencies and organizations where foreigners have
worked. - List of football clubs that football players have taken and
certificate of previous football club that football player took are compulsory
for a football player.
- License of air
transport certified by Vietnam authorized agencies for foreign pilot.
- Certificate of
airplane maintenance issued by Vietnam authorized agencies for foreigners who
make airplane maintenance.
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dd) 03 (three)
color photos (3cm by 4cm in size, bareheaded, frontal view, showing the face
and ears clearly, without glasses, and on a white background) taken within the
last six (06) months from the date on which the foreigner lodges the
application file.
3. Any documents
prescribed at sub-clause b, c, d, Section 2 of this Article which is in foreign
language must be translated to Vietnamese and notarized in accordance with the
law of Vietnam.”
3. To amend, supplement sub-clause (a) of Article 4.4 as follows:
a) “At least
thirty (30) days prior to recruiting employees, the employer must publish its
need to recruit employees in planned positions of foreigners on at least 01
(one) some central newspaper and at least 01 (one) local newspaper in one of
written, oral, pictorial or electronic form with the contents: number of
employees, positions, professional knowledge, salary level and other incomes,
working conditions and other contents required by employees.
It shall not be
necessary to publish the above-mentioned notice in a central or local newspaper
if the employer recruits employees via a recruitment agency or foreigners in
Vietnam are working in international schools within the management scope of
foreign diplomatic representative agencies, international inter-government
organizations in Vietnam.”
4. To amend, supplement Article 5.4 as follows:
“4. Foreigners
must prepare all the documents stipulated in sub-clauses (b), (c). (d) and (dd)
of Article 4.2 of this Decree.”
5. To amend, supplement Article 6.3 as follows:
“3. Foreigners
must prepare all the documents stipulated in sub-clauses (b), (c), (d) and (dd)
of Article 4.2 of this Decree.”
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“Article 6a.
Foreigners entering Vietnam to perform packages or projects of winning foreign
contractors in Vietnam 1. In the process of making calling document, requirement
document, investors have to regulate contents in using Vietnamese labors and
foreigners in accordance with legal regulations, especially, Vietnamese labors
must be prior in doing jobs that they have capabilities. In the case that the
package need foreigners with suitable professional knowledge with the package,
ways of using foreigners including: occupation positions, quantity,
professional knowledge, experience and time of implementation must be regulated
in calling document and requirement document by contractors.
2. Bidding
document and suggest document of foreign contractors must have ways of using
Vietnamese labors and foreigners in accordance with investor’s requirements.
3. On the
implementation of contract, foreign contractors must comply with all the
contents in bidding documents and suggest document on using Vietnamese labor
and foreigners. Foreign contractors have responsibilities in reporting and
suggesting in written document to the municipal President of People’s
Committees, where contractors are implementing packages or the above successful
project in recruiting Vietnamese labor including: occupation positions,
quantity, professional knowledge, experience and time of implementation.
Foreign
contractor’s recruitment proposal for Vietnamese labors must be attached with
investor’s confirmation on employment plan listed in the bidding document and
suggest document. In the case that foreign contractors need to adjust,
supplement labor amount in bidding documents, suggest documents, investors have
to confirm ways of adjustment and supplementation on demand of using labors
from foreign contractors.
4. Presidents of
provincial/municipal People’s Committee are responsible for directing agencies,
relevant organizations to introduce, supply Vietnamese labors for foreign
contractors. Within the maximum time of 60 (sixty) days, for the suggest for
recruiting from 500 Vietnamese labors and above and 30 (thirty) days, for the
suggest for recruiting under 500 Vietnamese labors, Vietnamese labors cannot be
introduced and supplied right to above suggests, Presidents of
provincial/municipal People’s Committee will consider and decide on allowance
for foreign contractors to recruit foreigners in the positions that no
Vietnamese labor is recruited.
5. Foreign
contractors have to make procedure on certificate issuance for foreigners
working in Vietnam in accordance with legal regulations before they work in
Vietnam.
6. Investors are
responsible for instructing, supervising and speeding up, checking foreign
contractors on the implementation of regulations on recruiting, using
foreigners in accordance with Vietnam laws; monitoring and managing foreigners
on the implementation of Vietnam legal regulations at contractors; reporting
quarterly to the Department of Labor, War Invalids and Social Affairs on
foreigner recruitment and management at foreign contractor under investor’s
responsibility in accordance with regulations of the Ministry of Labor, War
Invalids and Social Affairs.
7. The Department
of Labor, War Invalids and Social Affairs is responsible for coordinating
quarterly with security agencies and relevant agencies to investigate the
implementation on Vietnam legal regulations of foreigners who are working at
successful projects and packages of contractors on regions.”
7. To amend, supplement Article 8.3 as follows:
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8. To supplement sub-clauses (h), (i), (k), (l) and (m) of Article 9.1
as follows:
h) A foreigner
working as Head of Representative Office, Head of Project Office or a foreigner
assigned to represent all activities in Vietnam by foreign non-government
organization;
j) A foreigner
having internal transfer within an enterprise, in the service scope in the
commitment service table of Vietnam with World Trade Organization with 11
services, including: business service; information service; construction
service; distribution service; education service; environmental service;
financial service; health service; tourism service; service of entertainment
culture and transportation service; k) A foreigner coming Vietnam to supply
consulting service on professional knowledge and technique or implement other
tasks serving to research, build, appraise, monitor and evaluate, manage and
process programs, projects that use Official Development Assistance (ODA) in
accordance with regulations or agreements in international treaty on ODA signed
between authorized Vietnam agency and foreign agency; l) A foreigner licensed
to operate in information and newspaper sector in Vietnam by the Ministry of
Foreign Affairs in accordance with legal regulations;
m) Other cases in
accordance with the Prime Minister’s regulations.”
9. To amend, supplement Article 9.3 as follows:
“3. An application
file for the issuance of a work permit shall comprise: a) For a foreigner
issued of a work permit at the first time, the application file shall comprise:
- Letter from the
employer, Vietnamese party or representative of the foreign non-Governmental
organization requesting issuance of a work permit, on the standard form
prescribed by the Ministry of Labor, War Invalids and Social Affairs;
- Foreigner’s
documents and other relevant documents:
+ A foreigner
recruited in the form of labor contract must have documents prescribed at
Article 4.2 of this Decree and other documents to prove that employers informed
recruitment demand into planned positions for foreigners in accordance with
regulations at sub-clause (a) of Article 4.4 of this Decree.
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+ A foreigner
regulated at sub-clause (c) and (d) of Article 1.1 must have documents
prescribed at sub-clause (b), (c), (d) and (dd) of Article 4.2 of this Decree
and attachments to the contract signed between Vietnam partner and foreign
partner.
+ A foreigner
prescribed at sub-clause (e) of Article 1.1 must have documents prescribed at
sub-clause (b), (c), (d) and (dd) of Article 4.2 of this Decree and operation
permit of foreign non-government organization in accordance with Vietnam legal
regulations.
+ A foreigner
entering Vietnam to implementing successful packages or projects in Vietnam in
accordance with Article 6a must have documents prescribed at sub-clause (b),
(c), (d) and (dd) of Article 4.2 of this Decree; foreigners recruited by
contractors right after succeeding the package must have Registration slip in
accordance with sub-clause (a) of Article 4.2 and approval documents of
Presidents of provincial/municipal People’s Committee prescribed at Article
6a.4 of this Decree.
b) A foreigner
licensed to work, the dossier includes:
- Letter from the
employer, Vietnamese party or representative of the foreign non-Governmental
organization requesting issuance of a work permit, on the standard form
prescribed by the Ministry of Labor, War Invalids and Social Affairs.
- Foreigner’s
documents and other relevant documents:
+ In the case of a
foreigner who has been issued with a work permit which is currently valid and
who wishes to work for other enterprises at the same position written in the
work permit must have 03 (three) color photos in accordance with sub-clause
(dd) of Article 4.2 of this Decree and work permit or copy of work permit.
+ In the case of a
foreigner who has been issued with a work permit which is currently valid and
who wishes to work for other positions at the same position written in the work
permit must have documents in accordance with sub-clauses (c), (d) and (dd) of
Article 4.2 of this Decree and work permit or copy of work permit.
+ In the case of a
foreigner who has been issued with a work permit which is currently invalid,
annulled and who wishes to work for other enterprises at the same position
written in the work permit must have documents in accordance with sub-clauses
(c) and (dd) of Article 4.2 of this Decree and work permit or copy of work
permit.”
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“The Department of
Labor, War Invalids and Social Affairs shall issue the work permit for the
foreigner within a time-limit of ten (10) working days from the date of receipt
of a complete and valid application file In a case of a refusal, the Department
shall provide a written response specifying its reasons.”
11. To annul sub-clause c of the Article 9.5.
12. To amend, supplement Article 9.6 as follows:
“6. With respect
to foreigners who work in Vietnam as prescribed in clause
1 of this Article, seven (7) days prior to the date that the foreigners commence to work, the employers or Vietnamese partners, the representatives of foreign non-government
organizations must send reports
on the list of the foreigners with brief contents of full names, ages, nationalities
and passport numbers, the dates of commencing and finishing the work, and their positions to the local Departments of Labor, War Invalids and Social Affairs where the foreigners will work regularly.
With respect to objects prescribed in sub-clause a, b, c and d of clause 1 of this Article,
it must be enclosed foreigner’s documents prescribed at
sub-clause b, c, d and đ of Clause 2 Article
4 of this Decree and must ensure all conditions prescribed at clause 1, 2, 3,
and 4 of Article 3 of this Decree.
With respect to objects prescribed in sub-clause đ, e, g, h, i, k,
l and m of clause 1 of this Article, the time limit for
sending reports on the list of foreign employees with
brief contents must be at least 7 days prior
to the working commencing date of foreigners.
13. To amend, supplement sub-clause (a) of Article 10.2 as follows: “a/
In the case of a foreigner working pursuant to a labor contract, including:
- Request for
extension of the work permit on the standard form prescribed by the Ministry of
Labor, War Invalids and Social Affairs;
- Copy of
vocational contract signed between enterprise and Vietnamese labor in order to
replace the position that a foreigner is taking in accordance with regulations
of the Ministry of Labor, War Invalids and Social Affairs. - Copy labor
contract;
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14. To amend, supplement Article 10.4 as follows: “4. Order for
extension of a work permit:
a/ The employer or
the Vietnamese party must lodge the application file for extension of the work
permit with the Department of Labor, War Invalids and Social Affairs which
issued such work permit, at least ten (10) days not over thirty (30) days prior
to the date of expiry of the work permit.
b/ The Department
of Labor, War Invalids and Social Affairs shall extend a work permit for a
foreigner within a time-limit of ten (10) working days from the date of receipt
of a complete and valid application file. In a case of refusal, the Department
shall provide a written response specifying its reasons.”
15. To amend, supplement Article 11 as follows:
“Article 11.-
Re-issuance of work permits
1. A work permit
may be re-issued in the following cases:
a/ The work permit
was lost.
b/ The work permit
was damaged.
c/ Passport number,
working place written in the work permit were changed.
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a/ Request for
re-issuance of the work permit from the foreigner on the standard form
prescribed by the Ministry of Labor, War Invalids and Social Affairs,
explaining how the work permit was lost or damaged, changes in passport number,
working place must be confirmed by employer and Vietnamese partner;
b/ Work permit
issued in the cases which are prescribed at the sub-clause (b) and (c) of
clause 1 of this Article.
3. Time-limit of
re-issued work permit is the time of issuing work permit after subtracting time
period that foreigner worked at the time of request for re-issuance of the work
permit.
4. Order for
re-issuance of a work permit:
a/ An employee
must notify his or her employer, or the Vietnamese party, or the representative
of the foreign non-Governmental organization that the work permit was lost or
damaged or changed in passport number, working place within at least three (3)
days of discovering same. The employer, Vietnamese party or such representative
must in turn notify the Department of Labor, War Invalids and Social Affairs
which issued the work permit for foreigners when the work permit was lost or
damaged or changed in passport number, working place. The employer, Vietnamese
party or such representative must lodge an application filed for reissuance of
the work permit with the Department of Labor, War Invalids and Social Affairs
which issued such work permit, within at least thirty (30) days after the date
the work permit was lost or damaged or changed in passport number, working
place.
b/ The Department
of Labor, War Invalids and Social Affairs shall re-issue a work permit within a
time-limit of three (03) working days from the date of receipt of a complete
and valid application file. In a case of refusal, the Department shall provide
a written response specifying its reasons.”
16. To amend, supplement Article 4.3 as follows:
“3. Foreigners
currently working in Vietnam except for objectives prescribed at the Article
9.1 of this Decree who have not yet obtained a work permit must carry out
procedures to apply for issuance of a work permit in accordance with this
Decree. If after six (6) months, from the effective date of this Decree,
working in Vietnam a foreign employee still does not have a work permit or has
not lodge the application file for issuance of a work permit in accordance with
regulations, the Department of Labor, War Invalids and Social Affairs shall
propose that the Minister of Public Security issue a decision on deportation
from Vietnam in accordance with law.”
17. To supplement Article 15a after Article 15 as follows:
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1. To direct and
provide guidelines for authorized security agencies: a/ To grant visa for
foreigner after receiving the work permit, extending the work permit or
reissuing the work permit.
b/ Not to grant
visa for foreigner working in Vietnam without work permit or the work permit is
invalid and annulled, except for objectives prescribed at the Article 9.1 of
this Decree.
Not extend
permanent residence and issue a decision on deportation from Vietnam to foreign
employee who still does not have a work permit or his/her work permit is
invalid and annulled, except for objectives prescribed at the Article 9.1 of
this Decree.
2. To preside over
co-ordination with the Ministry of Labor, War Invalids and Social Affairs to
provide guidelines on procedure in sending list of foreigners who are issued
work permits, extended work permits and reissued work permits by the Department
of Labor, War Invalids and Social Affairs to management agencies of entry and
exit in prescribed at Article 18.2 of this Decree.
3. To provide
guidelines on authority, procedure, application foundation and file for a
decision on deportation from Vietnam to foreign employees who do not have work
permits after receiving proposals from the Department of Labor, War Invalids
and Social Affairs.”
18. To supplement Article 16a after Article 16 as follows:
“16a.
Responsibilities of the Ministry of Industry and Trade
Provide guidelines
on foundation, process, and procedure in defining the foreigners having
internal transfer within an enterprise in the scope of service sector in the
service commitment of Vietnam with the World Trade Organization among 11
service sectors prescribed at sub-clause (i) of Article 9.1 of this Decree.”
19. To amend, supplement Article 18.2 as follows:
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provisions of this
Decree and send list of foreigners who are issued work permits, extended work
permits and re-issued work permits to the management agency of entry and exit
for checking, making entry procedure, supplying temporary residence card for
foreigners working in Vietnam.”
20. To supplement Article 19.7 as follows:
“7. Employers must
annually register demand on recruiting and employing foreign employees in written
document to the Department of Labor, War Invalids and Social Affairs in
accordance with regulations of the Ministry of Labor, War Invalids and Social
Affairs including: quantity, professional knowledge, experience, salary level,
working time duration (time of commencing and finishing) for each position. In
the case that employer wants to change the demand on using foreign employees,
he/she must register in written document for supplementing in demand on
recruiting and using foreign employees within time limit of 30 (thirty) days
after employer publish its demand to recruit foreign employees.
The Department of
Labor, War Invalids and Social Affairs is responsible for collecting, reporting
demands on recruiting and using foreign employees in accordance with
regulations of the Ministry of Labor, War Invalids and Social Affairs.
21. To amend, supplement Article 20.1 as follows:
“Foreigners in
Vietnam comprising spouses, husbands of the people who receive preferential
treatment in diplomatic exemption, consular working for enterprises, and
organizations in Vietnam must have agreement between Vietnam and relevant
countries and work permits, except for the case that Vietnam signs a convention
or an agreement with different regulations. Dossier, process and procedure in
issuing work permit for above spouses; husbands must comply with regulations of
the Ministry of Labor, War Invalids and Social Affairs and the Ministry of
Foreign Affairs. Foreigners in Vietnam comprising pupils, students studying in
foreign schools and training faculties for training in enterprises, agencies,
organizations, above enterprises, agencies, organizations must report in
accordance with regulations of the Ministry of Labor, War Invalids and Social
Affairs and the Ministry of Foreign Affairs.
Article 2. Effect
for implementation
1. This Decree
takes effect on August 01, 2011.
2. Ministers,
heads of ministerial-level agencies, heads of governmentattached agencies, and
presidents of provincial/municipal Peoples Committees and organizations,
individuals shall implement this Decree.
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FOR THE GOVERNMENT
THE PRIME MINISTER
Nguyen Tan Dung