Circular No. 04/2004/TT-BLDTBXH guiding the implementation of certain provisions of Government Decree No. 105/2003/NĐ-CP dated September 17, 2003 on the recruitment and management of foreign workers working in Vietnam.

To implement Decree No. 105/2003/NĐ-CP dated September 17, 2003 of the Government on Recruitment and Management of Foreign Workers Working in Vietnam and Resolution No. 01/2004/NQ-CP dated January 12, 2004 of the Government on Major Measures to Focus on Directing and Managing the Implementation of the State Budget Plan for 2004, the Ministry of Labor, Invalids and Social Affairs provides the following guidance:

a) Enterprises under various economic sectors, including enterprises operating under the Law on State-Owned Enterprises, the Enterprise Law, and the Law on Foreign Investment in Vietnam;

b) Contractors (main contractors, sub-contractors) which are economic organizations with legal personality of Vietnam or foreign countries that have undertaken contracts;

c) Business and service organizations under administrative state agencies, armed forces, people's mass organizations, political organizations, political-social organizations, social organizations;

d) Offices of foreign investment projects, branches of foreign companies; representative offices of economic, trade, financial, banking, insurance, scientific and technological, cultural, sports, educational, and health organizations;

đ) State-run units;

e) Health care, cultural, educational, training, and sports facilities, including:

- Sports establishments established and operated in accordance with the Physical Culture and Sports Ordinance No. 28/2000/PL-UBTVQH10 dated September 25, 2000 of the Standing Committee of the National Assembly of the Socialist Republic of Vietnam;

- Educational and training facilities, schools, vocational training centers established and operated in accordance with the Education Law No. 11/1998/QH10 dated December 2, 1998 and the amended and supplemented Labor Code;

- Hospitals, institutes with hospital beds, health centers, health stations, centers for preventing social diseases, preventive health centers, treatment camps, and other health care facilities established and operated in accordance with the Enterprise Law, the Law on State-Owned Enterprises, and the Law on Foreign Investment in Vietnam;

- Cultural establishments established and operated in accordance with Vietnamese laws, including those established and operated in accordance with the Enterprise Law, the Law on State-Owned Enterprises, and the Law on Foreign Investment in Vietnam.

g) Offices of foreign or international projects in Vietnam;

h) Branches of foreign law firms permitted to operate in Vietnam;

i) Cooperatives established and operated in accordance with the Cooperative Law.

2. Foreign workers as stipulated in Article 2 of Decree No. 105/2003/NĐ-CP mentioned above are individuals who do not hold Vietnamese nationality as defined in the Vietnamese Nationality Law adopted by the National Assembly on May 20, 1998.

1. Employers may recruit foreign workers in accordance with Article 3 of Decree No. 105/2003/NĐ-CP and Point 11 Section I of Resolution No. 01/2004/NQ-CP, specifically:

a) The employers mentioned in paragraph a of Clause 1 Section I of this Circular shall recruit foreign workers as follows:

- The number of foreign workers recruited is calculated according to the formula:

L_NN = L_DN x 0.03

+ L_NN represents the number of foreign workers that an enterprise is allowed to recruit according to regulations, including foreign nationals hired by the employer through labor contracts and foreign nationals sent to Vietnam by their side to work at the enterprise. The result L_NN shall not exceed 50 persons and must be at least 01 person.

Foreign nationals who are members of the board of directors, general managers, deputy general managers, directors, deputy directors of enterprises established under Vietnamese law; heads of representative offices, branch offices in Vietnam, foreign nationals entering Vietnam to work at enterprises to perform various types of contracts (excluding labor contracts) as stipulated in Clause 5, Article 6 of Decree No. 105/2003/NĐ-CP are not included in the aforementioned number of foreign workers of the enterprise;

+ L_DN represents the current number of employees (both Vietnamese and foreign) of the enterprise at the time of recruiting foreign workers, including: employees currently working at the enterprise; employees of the enterprise dispatched to work or train abroad; employees on leave under social insurance benefits (illness, maternity, occupational accidents, and occupational diseases); employees undergoing training by the enterprise; employees on leave due to suspension of labor contracts.

is the total number of employees currently employed by the enterprise (both Vietnamese and foreign workers) at the time of recruiting foreign workers, including: current employees working at the enterprise; employees of the enterprise sent abroad for work or training; employees on leave under social insurance benefits (illness, maternity, work-related accidents, and occupational diseases); employees being trained by the enterprise; employees on leave due to temporary suspension of employment contracts._NN If the result L

Example 1: is a decimal, it should be rounded up to the nearest higher whole number.

L_NN = 76 x 0.03 = 2.28

= 76 x 0,03 = 2,28

Example 2: Therefore, Enterprise A can recruit 03 foreign workers according to the regulations.

L_NN = 1767 x 0.03 = 53.01

Therefore, the number of foreign workers that Enterprise B is allowed to recruit according to regulations is 50 persons.

- In cases where an enterprise has a need to recruit foreign workers for positions that Vietnamese workers cannot meet, exceeding the prescribed number, it may recruit additional workers up to 50% more than the number of workers permitted to be recruited and must obtain written approval from the Chairman of the People's Committee of the province or centrally administered city where the enterprise's headquarters is located. The application for additional recruitment of foreign workers by the employer is made using Model No. 1 issued together with this Circular.

- For foreign investment projects approved by competent state authorities of Vietnam before the effective date of Decree No. 105/2003/NĐ-CP, the recruitment of foreign workers shall be carried out according to the manpower plan already approved in the project.

- For enterprises that had recruited foreign workers before the effective date of Decree No. 105/2003/NĐ-CP, the employer may continue to employ the recruited foreign workers until the expiration of the labor contract term or the duration specified in the work permit issued. If the enterprise needs to recruit additional foreign workers beyond the prescribed ratio after the expiration of the employment period of the previously recruited workers, it shall follow the provisions of this Circular.

b) Employers as stipulated in Subpoints b, c, d, đ, e, g, h, i of Point 1 Section I of this Circular, prior to recruiting foreign workers, must submit to the People's Committee of the province or centrally administered city where the headquarters is located an application for recruitment of foreign workers using Model No. 2 issued together with this Circular, and only after obtaining written approval from the Chairman of the People's Committee of the province or centrally administered city can they recruit foreign workers.

In case the employer has been determined by the competent state agency of Vietnam the number of foreign workers to be employed annually when establishing and operating in Vietnam, they are not required to comply with the aforementioned provisions.

2. Foreign individuals with high technical expertise, extensive experience in their profession, production management as stipulated in Clause 3, Article 4 of Decree No. 105/2003/NĐ-CP shall be defined as follows:

a) High-skilled foreign individuals include engineers; those with equivalent qualifications to engineers or higher, holding diplomas certifying graduation from university, master's degree, or doctoral degree relevant to their specialty and job requirements as requested by the employer;

b) Foreign individuals recognized as artisans in traditional trades must be confirmed in writing by the competent authorities of the country where they hold citizenship;

c) Foreign individuals with extensive experience in their profession, production management shall have at least five years of experience, capable of fulfilling job requirements as stipulated by the employer, and must be confirmed in writing by the competent authority of a foreign country;

3. The application for work permit as stipulated in Clause 1, Article 5 of Decree No. 105/2003/NĐ-CP shall be defined as follows:

Foreign workers wishing to work in Vietnam must submit two sets of work permit applications to the employer. Each set includes:

a) A work application form according to Model No. 3 issued together with this Circular;

b) A criminal record certificate issued by the competent authority of the country where the worker resides. In cases where the foreign individual has resided in Vietnam for six months or more, they must also provide a criminal record certificate issued by the Department of Justice of Vietnam where the foreign individual currently resides;

c) A self-written resume of the foreign individual as prescribed in sub-clause c, Clause 1, Article 5 of Decree No. 105/2003/NĐ-CP, implemented according to Model No. 4 issued together with this Circular, and must affix a photograph of the foreign individual;

d) A health certificate issued abroad. In cases where the foreign individual is residing in Vietnam, the health certificate shall be issued according to regulations of the Ministry of Health of Vietnam;

đ) A copy of certificates regarding the professional qualifications and skills of the foreign individual including: university diploma, master's degree, doctoral degree or certificates regarding professional qualifications and skills of foreign workers issued by the competent authority of that country according to its regulations;

For foreign workers who are artisans in traditional trades or have extensive experience in their profession, production management without certificates, there must be a written assessment of their professional qualifications, skills, and management level confirmed by the competent authority of a foreign country;

e) Three color photographs (dimensions 3 cm x 4 cm, bareheaded, frontal view, clear face, visible both ears, no glasses), taken within one year;

All documents in the work permit application mentioned above issued by foreign agencies or organizations must be legalized according to Vietnamese law and translated into Vietnamese; copies and translations must be notarized according to Vietnamese law;

a) Form of work permit:

The work permit measures 13 cm x 17 cm, consisting of four pages; pages 1 and 4 are blue in color, laminated; pages 2 and 3 have a white background with light blue patterns, featuring a star in the center;

b) Content of work permit:

- Page 1: From top to bottom, it displays the National Emblem at the top, followed by the National Emblem below; then the phrase "Work Permit" in Vietnamese and English; at the bottom is the "Number" of the work permit in Vietnamese and English;

- Page 2: From top to bottom, it displays a frame for affixing a 3 cm x 4 cm color photo in the upper left corner; in the middle is the phrase "Work Permit"; in the center of the page are details of the foreign worker granted the work permit including: full name, gender, date of birth, current nationality, passport number, professional qualification (skill), place of employment, job title, period of employment from day... month... year... to day... month... year..., in Vietnamese and English, followed by the signature and seal of the Director of the Department of Labor, Invalids, and Social Affairs on day... month... year...;

- Page 3: From top to bottom, it displays the phrase "Extension of Work Permit Number..." in the center, followed by "Extended from day... month... year... to day... month... year..." in Vietnamese and English, followed by "Signed on day... month... year... by the Director of the Department of Labor, Invalids, and Social Affairs..." with signature and seal;

- Page 4: Specifies "Important Notes" in Vietnamese and English;

The design and specific content of the work permit according to Model No. 5 issued together with this Circular;

c) Work permits shall be printed and distributed uniformly by the Publishing House of Labor and Social Affairs under the Ministry of Labor, Invalids, and Social Affairs;

a) Employers are responsible for preparing the application for issuance of work permits for foreigners, including:

- A request for issuance of work permit by the employer according to Model No. 6 issued together with this Circular;

- The work permit application of the foreign worker as prescribed in Point 3, Section II of this Circular. For foreign workers sent to Vietnam by the foreign side to work, the work permit application does not need to include a work application form but should include a document from the foreign side sending them to work in Vietnam;

b) Employers are responsible for submitting one set of work permit application to the Department of Labor, Invalids, and Social Affairs of the locality where the enterprise or organization is headquartered to apply for a work permit.

c) The employer shall be responsible for receiving the work permit issued by the Department of Labor, Invalids and Social Affairs and shall be responsible for delivering it to the foreign worker.

d) After the foreign worker has been granted the work permit, the employer and the foreign worker shall be responsible for concluding a labor contract in accordance with the model prescribed in Circular No. 21/2003/TT-BLDTBXH dated September 22, 2003 of the Ministry of Labor, Invalids and Social Affairs guiding the implementation of certain provisions of Decree No. 44/2003/NĐ-CP dated May 9, 2003 of the Government on labor contracts. Within five days from the date of conclusion of the labor contract, the employer shall be responsible for sending a copy of the concluded labor contract to the authority that issued the work permit for the foreign worker.

a) In cases where it is necessary to extend the work permit for a foreign worker, the employer shall be responsible for preparing the application dossier for extension. The dossier includes:

- A request for extension of the work permit by the employer according to Model No. 7 issued together with this Circular;

- A copy of the labor contract or a document from the foreign side assigning the foreigner to continue working in Vietnam (with confirmation by the employer);

- The work permit already issued by the competent authority to the foreign worker.

b) The employer shall be responsible for submitting one application dossier for extension of the work permit to the Department of Labor, Invalids and Social Affairs at the location where the enterprise or organization has its main office to apply for the extension of the work permit.

c) The employer shall be responsible for receiving the extended work permit issued by the Department of Labor, Invalids and Social Affairs and shall be responsible for delivering it to the foreign worker.

d) In cases where there is a need to extend the work permit for the second time for a foreign worker, the employer shall submit a document requesting approval for the extension of the work permit according to Model No. 8 issued together with this Circular to the Chairman of the People's Committee of the province or centrally-run city where the enterprise has its main office.

For foreign workers who have been granted a work permit but lost or damaged it as stipulated in Article 8 of Decree No. 105/2003/NĐ-CP, they must submit an application for reissuance of the work permit according to Model No. 9 issued together with this Circular and send it to the Department of Labor, Invalids and Social Affairs that issued the work permit, along with the damaged work permit. The employer shall be responsible for confirming the reason for loss or damage of the work permit and requesting the competent authority to reissue the work permit for the foreign worker in the application for reissuance of the work permit.

5. For foreign workers who are not required to obtain a work permit as stipulated in Clause 5, Article 6 of Decree No. 105/2003/NĐ-CP, the employer shall be responsible for reporting a list of such workers to the Department of Labor, Invalids and Social Affairs at the location where the enterprise has its main office according to Model No. 10 issued together with this Circular.

1. Responsibilities of the employer:

a) To fully comply with the regulations of Vietnamese law on the recruitment and management of foreign workers working in Vietnam.

b) Annually before July 5 and January 5, the employer shall be responsible for reporting the situation of using foreign workers for the first six months and the whole year before to the Department of Labor, Invalids and Social Affairs at the location where the enterprise has its main office according to Model No. 11 issued together with this Circular. At the same time, implement ad hoc reports as required by the state management agency on labor regarding the situation of using foreign workers.

c) Pay fees for issuing, extending, and reissuing work permits as prescribed by the Ministry of Finance.

2. Responsibilities of the Department of Labor, Invalids and Social Affairs:

a) To issue, extend, and reissue work permits in accordance with the law.

b) To guide and organize implementation; annually before July 15 and January 15 report to the Ministry of Labor, Invalids and Social Affairs on the situation of issuing work permits and using foreign workers in enterprises, agencies, and organizations under their jurisdiction according to Model No. 12 issued together with this Circular.

c) Guide, inspect, and audit the implementation of laws on the recruitment and management of foreign workers working in Vietnam.

3. Responsibilities of the Chairman of the People's Committee of the province or centrally-run city:

a) Within fifteen days from the date of receipt of the employer's request for approval to recruit foreign workers as prescribed in item a, point 1, Section II of this Circular, the Chairman of the People's Committee of the province or centrally-run city shall be responsible for examining and approving the recruitment of foreign workers. If disapproval, the reasons must be stated in writing.

b) Within fifteen days from the date of receipt of the employer's request for approval to recruit more foreign workers than the specified number as prescribed in item b, point 1, Section II of this Circular, the Chairman of the People's Committee of the province or centrally-run city shall be responsible for examining and approving the recruitment of more foreign workers than the specified number. If disapproval, the reasons must be stated in writing.

c) Within fifteen days from the date of receipt of the employer's request for approval to extend the work permit as prescribed in item d, point 3, Section III of this Circular, the Chairman of the People's Committee of the province or centrally-run city shall be responsible for examining and approving the extension of the work permit for the second time as requested by the employer. If disapproval, the reasons must be stated in writing.

4. This Circular shall take effect fifteen days from the date of publication in the Official Gazette. The Circular No. 08/2000/TT-BLDTBXH dated March 29, 2000, of the Ministry of Labor - Invalids and Social Affairs on issuing work permits and Decision No. 311/2000/QD-BLDTBXH dated March 29, 2000, of the Minister of Labor - Invalids and Social Affairs on promulgating the model of work permit, printing and distributing, managing work permits issued to foreign workers working at enterprises and organizations in Vietnam are hereby repealed.

5. As for the Industrial Park Management Boards, Export Processing Zone Management Boards, and High-Tech Zone Management Boards that were previously authorized by the Ministry of Labor - Invalids and Social Affairs to issue work permits to foreign workers, such authorization to issue work permits now falls under the jurisdiction of the Department of Labor - Invalids and Social Affairs.

During implementation, if there are any difficulties, please promptly reflect them to the Ministry of Labor - Invalids and Social Affairs for research and resolution./.