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THE GOVERNMENT
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SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom - Happiness
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No.
34/2008/ND-CP
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Hanoi, March 25th
2008
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DECREE
ON EMPLOYMENT AND ADMINISTRATION OF FOREIGNERS WORKING IN
VIETNAM
THE GOVERNMENT
Pursuant to the Law on
Organization of the Government dated 25 December 2001;
Pursuant to the Labour Code dated 23 June 1994 and the Law on Amendment of and
Addition to the Labour Code dated 2 April 2002;
Pursuant to the Law on Investment dated 29 November 2005;
On the proposal of the Minister of Labour, War Invalids and Social Affairs
['Minister of Labour"],
DECREES:
Chapter I
GENERAL PROVISIONS
Article 1.-
Governing scope and applicable entities
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This Decree applies to
foreigners working in Vietnam and to enterprises and organizations in Vietnam
which employ foreign employees, specifically as follows:
1. Foreigners working in Vietnam
in the following forms:
a/ Pursuant to a labour
contract;
b/ Internal transfer within an
enterprise which has a commercial presence in Vietnam;
c/ Performance of any of the
following types of contract, namely economic, commercial, financial, banking,
insurance, scientific and technical, cultural, sporting, educational or medical
health contracts;
d/ Service providers pursuant to
contract;
dd/ People offering services;
e/ Foreigners representing a
foreign non-Governmental organization which is permitted to operate pursuant to
the law of Vietnam.
2. Enterprises and organizations
employing foreign employees, comprising:
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b/ Foreign contractors (head
contractors and sub-contractors) awarded with a contract in Vietnam;
c/ Representative offices and
branches of economic, commercial, financial, banking, insurance, scientific and
technical, cultural, sporting, educational, and medical health organizations;
d/ Socio-political, social,
socio-occupational and socio-occupational-political organizations; and
non-Governmental organizations;
dd/ State professional units;
e/ Medical health, cultural,
educational and sporting establishments permitted to be established by the
competent body;
g/ Offices of foreign or
international projects in Vietnam;
h/ Operating offices of foreign
partners pursuant to business co-operation contracts in Vietnam;
i/ Organizations practising law
in Vietnam in accordance with the law of Vietnam;
k/ Co-operatives and
co-operative groups established and operating pursuant to the Law on
Cooperatives.
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Article 2.-
Interpretation of terms
In this Decree, the following
terms shall be construed as follows:
1. Foreigner means a person without
Vietnamese nationality in accordance with the Law on Vietnamese Nationality.
2. Manager [or] executive
director means a foreigner directly managing a foreign enterprise which has
established a commercial presence in Vietnam, and who is only subject to
general supervision or direction by the board of management or shareholders of
the enterprise or equivalent level. Management of an enterprise comprises
instructing such enterprise or any office, section or subsidiary unit of the
commercial presence; supervising and controlling the work of specialized staff,
managers or other supervisors; having the right to hire and dismiss or to
recommend the hiring and dismissal of or [managing the] activities of other
staff. Managers [and] executive directors shall not directly carry out work
related to provision of services by the commercial presence.
3. Expert means a foreigner with
specialist and highly technical qualifications regarding services; and
regarding research, technical knowledge or management of equipment (and
includes engineers or people with qualifications equivalent to the level of
engineer or higher; and includes artisans in traditional occupations and
trades) and [means] people with considerable experience in an occupation or
trade, in operating production and business and in managerial work.
4. Foreigner internally
transferring within an enterprise comprises any of the above-mentioned
managers, executive directors and experts of a foreign enterprise which has
already established a commercial presence within the territory of Vietnam who
temporarily transfer within the enterprise to the commercial presence within
the territory of Vietnam and who have been employed by the foreign enterprise
for at least twelve (12) months prior to such transfer.
5. Foreigner offering services
means a person who does not live in Vietnam and who does not receive
remuneration from any source in Vietnam, and who participates in activities
relating to representation of a service supplier in order to negotiate the sale
[or consumption] of services of such supplier, on condition that he or she does
not directly sell such services to the public and does not directly participate
in the provision of services.
6. Service provider pursuant to
a contract means a foreigner working in a foreign enterprise which does not
have a commercial presence in Vietnam. Such person must have worked for the
foreign enterprise without a commercial presence in Vietnam for at least two
(2) years, and must satisfy the same conditions which apply to experts as
stipulated in clause 3 of this article.
7. Vietnamese parly comprises:
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b/ The representative of a
foreign enterprise or organization which has already established a commercial
presence within the territory of Vietnam in accordance with the law of Vietnam.
8. Commercial presence means a
service provider bearing the nationality of any one country who goes to a
second country and establishes a legal entity within and provides services in
such second country. For example, a commercial bank opens a branch overseas.
Chapter II
RECRUITMENT AND
ADMINISTRATION OF FOREIGN EMPLOYEES WORKING IN VIETNAM
Article 3.-
Foreigners must satisfy all of the following conditions in order to work in
Vietnam:
1. Must be eighteen (18) years
of age or older.
2. Must be in good health as
necessary to satisfy the job requirements.
3. Must be a manager, executive
director or an expert as stipulated in clauses 2 and 3 of article 2 of this
Decree.
Foreigners applying to work in a
private medical or pharmaceutical practice or to directly carry out medical
examination and treatment in Vietnam, or to work in the educational and
occupational training sectors must satisfy all conditions stipulated by the law
of Vietnam in relation to private medical or pharmaceutical practice, or
education and occupational training.
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5. Must have a work permit
issued by the authorized State body of Vietnam, except in the cases stipulated
in article 9.1 of this Decree where a work permit is not required.
Article 4.-
Recruitment of foreigners to work in Vietnam pursuant to a labour contract
1. An employer shall be
permitted to recruit foreign workers who fully satisfy the conditions
stipulated in article 3 of this Decree in order to work as managers, executive
directors and experts where Vietnamese workers are not yet able to satisfy such
production and business requirements.
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 Labour.
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 (6) 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/ Curriculum vita of the
foreigner on the standard form prescribed by the Ministry of Labour.
d/ Health certificate issued
overseas or health certificate issued in Vietnam in accordance with the
regulations of the Ministry of Health.
dd/ Copies of certificates of specialist
lor] highly technical qualifications of the foreigner. A foreigner who is an
artisan in a traditional occupation or trade or who has experience in an
occupation or trade or in operating production or in managerial work and who
does not possess certificates or diplomas must have a document from the
authorized body of the country of his or her nationality certifying that he or
she has at least five years' experience in an occupation or trade, in operating
production or in managerial work.
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3. Any documents prescribed for
the above file which are issued, certified or notarized by a foreign body or
organization must be consularized in accordance with the law of Vietnam and
translated into Vietnamese; and the translations and any copy documents must
also be notarized in accordance with the law of Vietnam.
4. Order and procedures for
employing foreigners to work in Vietnam:
a/ At least thirty (30) days
prior to recruiting employees, the employer must publish its need to recruit
employees in a central or local newspaper (in written, oral, pictorial or
electronic form) notifying the following matters: the number of employees to be
recruited, the work, the specialist qualifications, the salary level, the
working conditions and other necessary items which the employer requires.
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.
b/ Employers must provide
complete information about the provisions of the law of Vietnam relating to
rights and obligations of foreigners entering Vietnam to work; and foreigners
must fully research such provisions of the law of Vietnam as supplied by the
employer, and at the same time they must prepare the necessary documents and
correctly comply with the provisions of this Decree.
c/ A foreigner wishing to work
in Vietnam must submit to the employer the application file for registration
for recruitment stipulated in clause 2 of this article. An employer shall
receive such file if it contains all the documents required by this Decree, and
the employer shall then conduct procedures in accordance with this Decree to
apply for issuance of a work permit for the foreigner to work in Vietnam.
d/ After issuance of a work
permit, the foreigner and the employer must sign a written labour contract in
accordance with the labour law of Vietnam, and the employer shall be
responsible to forward a copy of the signed labour contract to the body which
issued the work permit for such employee. The contents of the labour contract
must not be inconsistent with the contents of the issued work permit.
Article 5.-
Foreigners entering Vietnam to work in the form of internal transfer within an
enterprise
1. Any foreigner working in
Vietnam pursuant to article 1.1(b) of this Decree must have a letter from the
foreign enterprise appointing him or her to come to Vietnam to work at the
commercial presence of such foreign enterprise in the territory of Vietnam, and
must satisfy the conditions stipulated in article 3 of this Decree.
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3. The representative of a
foreign enterprise which has established a commercial presence within the
territory of Vietnam in accordance with the law of Vietnam shall be responsible
to provide complete information about the provisions of the law of Vietnam
relating to the rights and obligations of foreigners working within the territory
of Vietnam, and foreigners must research and fully comply with the provisions
of the law of Vietnam as supplied by the employer.
4. Foreigners must prepare all
the documents stipulated in sub-clauses (b), (c). (d), (dd) and (e) of article
4.2 of this Decree.
5. The representative of a
foreign enterprise which has established a commercial presence within the
territory of Vietnam shall conduct procedures requesting issuance of a work
permit for a foreigner to work in Vietnam pursuant to this Decree, prior to
such foreigner coming to Vietnam to work.
Article 6.-
Foreigners entering Vietnam to perform contracts (other than labour contracts)
1. Any foreigner working in
Vietnam pursuant to sub-clauses (c) and (d) of article 1.1 of this Decree must
satisfy all the conditions stipulated in article 3, and must have a contract
signed between the Vietnamese party and the foreign party agreeing on the
foreigner coming to Vietnam to work.
2. The Vietnamese party must
provide complete information about the provisions of the law of Vietnam
relating to rights and obligations of foreigners entering Vietnam to work; and
foreigners must research and fully comply with the provisions of the law of
Vietnam.
3. Foreigners must prepare all
the documents stipulated in sub-clauses (b), (c), (d), (dd) and (e) of article
4.2 of this Decree.
4. The Vietnamese party shall
conduct procedures requesting issuance of a work permit for a foreigner to work
in Vietnam pursuant to this Decree, prior to such foreigner coming to Vietnam
to work.
Article 7.-
Foreigners entering Vietnam to work in order to offer services
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Article 8.-
Foreigners being representatives of foreign non-Governmental organizations
permitted to operate pursuant to the law of Vietnam
1. Any foreigner working in
Vietnam pursuant to sub-clause (e) of article 1.1 of this Decree must satisfy
all the conditions stipulated in article 3 of this Decree.
2. Foreigners shall be
responsible to research and fully comply with the provisions of the law of
Vietnam on the rights and obligations of foreigners in Vietnam.
3. Foreigners must prepare all
the documents stipulated in sub-clauses (b), (c), (d), (dd) and (e) of article
4.2 of this Decree.
4. The representative of the
foreign non-Governmental organization permitted to operate pursuant to the law
of Vietnam shall conduct procedures requesting issuance of a work permit for a
foreigner to work in Vietnam pursuant to this Decree, prior to such foreigner
coming to Vietnam to work.
Article 9.-
Issuance of work permits
1. Any foreigner working in
Vietnam must have a work permit, except in the following cases:
a/ A foreigner entering Vietnam
to work for a period of less than three (3) months.
b/ A foreigner who is a member
of a limited liability company with two or more members.
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d/ A foreigner who is a member
of the board of management of a shareholding company,
dd/ A foreigner entering Vietnam
to offer services.
e/ A foreigner entering Vietnam
to work to resolve an emergency situation such as a breakdown or a technically
or technologically complex situation arising and affecting, or with the risk of
affecting, production [and/or] business and which Vietnamese experts or foreign
experts currently in Vietnam are unable to deal with, [but] if for above three
months then after working for three months in Vietnam the foreigner must carry
out procedures to register for issuance of a work permit in accordance with
this Decree.
g/ A foreign lawyer to whom the
Ministry of Justice has issued a certificate to practise law in Vietnam in
accordance with law.
2. Departments of Labour of
provinces and cities under central authority shall issue work permits for
foreigners to work in Vietnam on the standard form prescribed by the Ministry
of Labour.
3. An application file for the
issuance of a work permit shall comprise:
a/ 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 Labour.
b/ Foreigners recruited pursuant
to a labour contract must have all the documents stipulated in sub-clauses (a),
(b), (c). (d), (dd) and (e) of article 4.2 of this Decree.
c/ Foreigners transferring
internally within an enterprise must have all the documents stipulated in
sub-clauses (b), (c), (d), (dd) and (e) of article 4.2 of this Decree and they
must also have a written letter from the foreign enterprise appointing them to
come to Vietnam to work at the commercial presence of such foreign enterprise
within the territory of Vietnam.
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dd/ Foreigners prescribed in
sub-clause (e) of article 1.1 of this Decree must have all the documents
stipulated in sub-clauses (b), (c), (d), (dd) and (e) of article 4.2 and they
must have a certificate proving that the foreign non-Governmental organization
is permitted to operate in accordance with the law of Vietnam.
4. Work permit shall be issued
for the same duration as the term of the proposed labour contract to be signed
or as set out in the decision of the foreign party on appointment to come to
work in Vietnam. In the case of a foreigner entering Vietnam to work other than
pursuant to a labour contract, then a work permit shall be issued for the same
duration as the term of the contract between the Vietnamese party and the foreign
party. In the case of a foreigner who will act as representative of a foreign
non-Governmental organization, a work permit shall be issued for the same
duration as the term specified in the certificate proving that the foreign
non-Governmental organization is permitted to operate in accordance with the
law of Vietnam.
The duration of a work permit in
any of the above-mentioned cases shall be a maximum thirty six (36) months.
5. Order for issuance of work
permits:
a/ The employer, the Vietnamese
party or the representative of the foreign non-Governmental organization must
lodge the application file requesting issuance of a work permit with the local
Department of Labour where the foreigner will work on a regular basis, or if
the foreigner will not always work in the same one place then with the local
Department of Labour where the employer has its head office, at least twenty
(20) days prior to the date on which it is proposed that the foreigner will
commence working at the enterprise, body or organization in Vietnam.
b/ The Department of Labour
shall issue the work permit for the foreigner within a time-limit of fifteen
(15) 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.
c/ In the case of a foreigner
who has been issued with a work permit which is currently valid and who wishes
to sign another labour contract with another employer, then the application
file must contain all the documents stipulated in sub-clauses (a) and (dd) of
article 4.2 and in article 9.3(a). together with a copy of the currently valid
work permit.
6. With respect to foreigners
entering Vietnam who do not require a work permit as prescribed in clause 1 of
this article, the employer or Vietnamese party must provide a report to the
local Department of Labour (where the foreigner will work on a regular basis)
seven (7) days prior to the date on which the foreign employees will commence
work, namely a spreadsheet stating the names, age, nationality and passport
numbers of the foreign employees, their dates of commencing and finishing work,
and the work to be undertaken; and must enclose the documents of the foreigners
prescribed in sub-clauses (b), (c), (d) and (dd) of article 4.2. and must also
ensure satisfaction of the conditions stipulated in clauses 1 to 4 inclusive of
article 3 of this Decree. In the case of foreigners prescribed in sub-clause
(e) of clause 1 of this article, the spreadsheet with the list of foreign
employees must be provided to the Department of Labour within a time- limit of
thirty (30) days after the date on which such employees commenced working.
Article
10.- Extension of work permits
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a/ When an employer has a plan
and is currently training a Vietnamese worker(s) to replace the foreign
employee in the work the latter currently does, but a Vietnamese worker is not
yet able to be substituted and the foreigner concerned has not been disciplined
pursuant to the provisions in article 84.1(b) or (c) of the Labour Code
(Amended).
b/ In the case of foreigners
entering Vietnam to work as prescribed in sub-clauses (c) and (d) of article
1.1 of this Decree and the time required for such work exceeds thirty six (36)
months.
2. An application file for
extension of a work permit shall comprise:
a/ In the case of a foreigner
working pursuant to a labour contract:
- Request for extension of the
work permit on the standard form prescribed by the Ministry of Labour,
specifying the reason why it has not been possible to train a Vietnamese worker
to replace the foreign employee, the names of the Vietnamese workers who have
been trained and who are currently being trained, the costs of the training,
the duration of the training, and the location of the training to replace the
foreign employee;
- Copy labour contract
(certified by the employer);
- Work permit already issued.
b/ In the case of a foreigner working
in a form prescribed in sub-clauses (c) or (d) of article 1.1 of this Decree:
- Request by the Vietnamese
party for extension of the work permit on the standard form prescribed by the
Ministry of Labour;
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- Work permit already issued.
3. Duration of an extension of a
work permit:
The duration of an extension of
a work permit shall depend on the additional period for which the foreign
employee will continue to work for the employer as stipulated in the labour
contract or in the letter of the foreign party appointing the foreign employee
to work in Vietnam, or [the term of] the contract between the Vietnamese party
and the foreign party.
The maximum duration of each
extension shall be thirty six (36) months.
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 Labour which issued such work permit, at least
thirty (30) days prior to the date of expiry of the work permit.
b/ The Department of Labour
shall extend a work permit for a foreigner within a time-limit of fifteen (15)
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.
Article
11.- Re-issuance of work permits [which are lost or damaged]
1. A work permit may be
re-issued in the following cases:
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b/ The work permit was damaged.
2. The application file for
re-issuance of a work permit shall comprise:
a/ Request for re-issuance of
the work permit from the foreigner on the standard form prescribed by the
Ministry of Labour, explaining how the work permit was lost or damaged.
b./ Request from the employer,
the Vietnamese party or the representative of the foreign non-Governmental
organization for re-issuance of the work permit.
c/ The work permit, in a case
where the work permit was damaged.
3. The contents of any re-issued
work permit must be correct in terms of [similar to] the contents in the
previously issued 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 within
at least three (3) days of discovering same, in order for the employer,
Vietnamese party or such representative to in turn notify the Department of
Labour which issued the work permit. The employer, Vietnamese party or such
representative must lodge an application filed for reissuance of the work
permit with the Department of Labour which issued such work permit, within at
least thirty (30) days after the date the work permit was lost or damaged.
b/ The Department of Labour
shall re-issue a work permit within a time-limit of fifteen (15) 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.
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1. The work permit expires.
2. The labour contract is
terminated.
3. The contents of the labour
contract are inconsistent with the contents of the issued work permit.
4. The economic, commercial,
financial, banking, insurance, scientific and technical, cultural, sporting,
educational or medical health contract is terminated.
5. There is notice from the
foreign party terminating the appointment of the foreign employee to work in
Vietnam.
6. The authorized State body
withdraws the work permit for a breach of the law of Vietnam.
7. The enterprise, organization,
Vietnamese party or foreign non-Governmental organization in Vietnam terminates
its operation.
8. The foreigner is sentenced to
prison, dies, or is proclaimed missing by a court.
Article
13.- Use of work permits
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2. Foreigners shall present
their work permits when conducting procedures for entry and exit, and on
request by a competent State body.
3. If a foreigner goes to work
for a period of ten (10) or more consecutive days or for a total of thirty (30)
accumulated days within any one year in a province or city under central
authority other than the province or city in which the foreigner works on a
regular basis, then the employer, the Vietnamese party or the representative of
the foreign non-Governmental organization must provide written notice about the
foreigner going to work in such location, enclosing a copy of the issued work
permit, to the Department of Labour in the place where the foreigner will work,
in accordance with regulations of the Ministry of Labour.
Chapter
III
ORGANIZATION OF
IMPLEMENTATION
Article
14.- Inspections and dealing with breaches
1. Ministries, ministerial
equivalent bodies, Government bodies and people's committees at all levels
shall be responsible to check and inspect implementation of the provisions of
the Labour Code and of this Decree.
2. Any employer or individual
breaching any provision of the Labour Code, this Decree or any other relevant
law shall, depending on the nature and seriousness of the breach, be subject to
an administrative penalty or criminal prosecution in accordance with the law of
Vietnam.
3. Foreigners currently working
in Vietnam and 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 working in Vietnam a foreign employee still
does not have a work permit, the Department of Labour shall propose that the
Minister of Public Security issue a decision on deportation from Vietnam in
accordance with law.
Article
15.- Responsibilities of the Ministry of Labour:
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To provide guidelines on
implementation of this Decree.
Article
16.- Responsibilities of the Ministry of Health:
To provide guidelines on the
prescribed standard form, contents of and issuing body for health certificates,
and on the use duration of health certificates for foreigners to work in
Vietnam.
Article
17.- Responsibilities of people's councils of provinces and cities under
central authority:
To issue decisions on collection
of fees for issuance of work permits for foreigners to work in Vietnam in
accordance with the law on fees and charges
Article
18.- Responsibilities of Departments of Labour:
1. To receive and archive
application files for the issuance, extension and re-issuance of work permits.
2. To issue, extend and re-issue
work permits in accordance with the provisions of this Decree.
3. To monitor, collate and
provide reports on the status of foreign employees working in enterprises,
bodies and organizations within their localities.
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Article
19.- Responsibilities of employers and Vietnamese parties:
1. To correctly implement the
labour law of Vietnam and the provisions of other relevant laws of Vietnam.
2. To carry out procedures to
apply for issuance, extension and re-issuance of work permits for foreigners to
work in Vietnam and to pay the fees for issuance of work permits in accordance
with law.
3. To fully perform labour
contracts signed with foreigners working in Vietnam.
4. To administer application
files for registration to recruit foreigners to work in Vietnam, and to supplement
documentation relevant to foreigners working in Vietnam.
5. To administer foreigners
working in enterprises or organizations.
6. To report on the status of
employment of foreigners working in Vietnam in accordance with regulations of
the Ministry of Labour.
Chapter IV
IMPLEMENTING PROVISIONS
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1. Foreigners in Vietnam
comprising students, spouses, assistants2 and foreigners not within the
definition in article 1.1 of this Decree who wish to work for an enterprise,
organization or individual in Vietnam shall not be required to complete an
application file and conduct procedures for issuance of a work permit. The
enterprise, organization or individual employing such foreigners must provide a
report, in accordance with regulations of the Ministry of Labour, to the local
Department of Labour where the foreigner will work on a regular basis, seven
(7) days prior to the date on which the foreign employees will commence work,
namely a spreadsheet stating the names, age, nationality and passport numbers
of the foreign employees, their dates of commencing and finishing work, and the
work to be undertaken
2. This Decree shall be of full
force and effect after fifteen (15) days from the date of its publication in
the Official Gazette.
This Decree shall replace Decree
105-2003-ND-CP of the Government dated 17 September 2003 with regulations on
implementation of the Labour Code with respect to employment and administration
of foreign employees working in Vietnam; and Decree 93-2005-ND-CP of the
Government dated 13 July 2005 amending Decree 105-2003-ND-CP. Any provisions
contrary to this Decree are also hereby repealed.
In the case of foreign employees
who have been issued with work permits which are currently valid up until the
date on which this Decree takes effect, such work permits shall remain valid
and need not be exchanged for new work permits.
Article
21.- Responsibility for implementation
1. The Ministry of Labour shall
provide guidelines for implementation of this Decree.
2. Ministers, heads of
ministerial equivalent bodies, heads of Government bodies and chairmen of
people's committees of provinces and cities under central authority shall be
responsible for implementation of this Decree.
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