Circular No. 08/2000/TT-BLDTBXH guiding the issuance of work permits for foreigners working at enterprises and organizations in Vietnam.

CIRCULAR

Guiding the issuance of work permits for foreigners

working at enterprises and organizations in Vietnam

Pursuant to Decree No. 58/CP dated October 3, 1996 of the Government on the issuance of work permits for foreigners working at enterprises and organizations in Vietnam and Decree No. 169/1999/NĐ-CP dated December 3, 1999 of the Government amending and supplementing some Articles of Decree No. 58/CP dated October 3, 1998 of the Government on the issuance of work permits for foreigners working at enterprises and organizations in Vietnam, after receiving opinions from relevant ministries and agencies, the Ministry of Labor, Invalids and Social Affairs guides the issuance of work permits for foreigners working at enterprises and organizations in Vietnam as follows:

I. APPLICANTS

The applicants for work permits are foreigners and overseas Vietnamese (hereinafter referred to collectively as foreign workers) working at enterprises and organizations in Vietnam (collectively referred to as employers) as follows:

1. State-owned enterprises;

2. Enterprises with foreign investment;

a) Enterprises with 100% foreign capital;

b) Joint ventures with foreign countries;

c) Parties involved in business cooperation contracts (in this case, the Vietnamese enterprise shall be responsible for handling the procedures to obtain work permits for foreign workers);

d) BOT enterprises (implementing construction-operation-transfer contracts), BTO enterprises (implementing construction-transfer-operation contracts) and BT enterprises (implementing construction-transfer contracts);

3. Enterprises in export processing zones and industrial parks;

4. Enterprises belonging to other economic sectors (including production and trading establishments and individual businesses registered for business if permitted by the People's Committee of the province or centrally-run city to recruit foreign labor);

5. Public service units operating under economic accounting systems;

6. Trading and service organizations under state administrative agencies, armed forces, people's organizations, and other political-social organizations;

7. Contractors (main contractors and subcontractors) which are economic entities with legal personality of Vietnam or foreign countries that have won bids. In cases of bidding for consultancy services, contractors may be individuals;

8. Medical, cultural, sports, educational and training facilities;

9. Representative offices of foreign companies, branches of foreign companies, representative offices of organizations: economic, trade, financial, banking, insurance, science-culture, education, health, and legal advisory services;

10. Joint venture banks with foreign countries, branches of joint venture banks with foreign countries, including branches of foreign banks and joint venture credit institutions, wholly foreign-owned credit institutions operating in Vietnam, joint venture insurance companies or insurance brokerage companies, and branches of foreign law firms permitted to operate in Vietnam;

11. Cooperatives.

Among the enterprises and organizations mentioned above (from point 1 to point 11), the following subjects are not subject to the issuance of work permits:

Foreigners hired to handle urgent difficulties (urgent situations are defined as technical and technological complications arising that affect or pose a risk to production and business operations which cannot be resolved by current Vietnamese and foreign experts in Vietnam) if the time required to resolve the urgent situation exceeds six months, then within two months of entering Vietnam to work, the hired foreigner must still follow the procedures to apply for a work permit as prescribed in this Circular;

Foreigners who are members of the Board of Directors, General Managers, Deputy General Managers, Directors, and Deputy Directors of foreign-invested enterprises;

Foreigners who are heads of representative offices and branch managers.

II. PROCEDURES FOR ISSUING WORK PERMITS AND EXTENDING WORK PERMITS

1. Issuing work permits.

a) Application dossier for issuing work permits:

Employers must submit one (1) set of application dossier to the authorized state agency (as stipulated in Section IV of this Circular) to apply for work permits for foreign workers;

Application for issuing work permits for foreigners;

A copy of the business registration certificate, establishment license, or operation license, or branch establishment license, or representative office establishment license in Vietnam issued by the competent authority of Vietnam, certified by a Notary Public of Vietnam;

Written permission from the competent authority to recruit foreigners as provided for in Clause 1, Article 7 of Decree No. 58/CP dated October 3, 1996 of the Government;

A copy of the employment contract with a term already concluded with the employer, acknowledged by the employer or a decision to send the foreign worker to work in Vietnam from the foreign side (for foreign workers currently residing in Vietnam) or a document from the employer about the intention to conclude an employment contract or a decision to send the foreign worker to work in Vietnam;

Documents of foreign workers include:

Application for issuing work permits in Vietnam;

Criminal record sheet issued by the Department of Justice where the foreigner resides in Vietnam;

In the case where the foreigner resides outside Vietnam, the criminal record sheet issued by the competent authority;

Copies of certificates of professional qualifications of the foreign worker. Certificates of professional qualifications of foreign workers include: university degree or equivalent or higher, or skill certification of the foreign worker issued by the competent authority according to the regulations of that country;

For foreign workers who are artisans in traditional trades or have extensive experience in their profession or in production management and administration without certificates, they must provide a self-assessment of their professional qualifications and management level confirmed by the competent authority of the country of which they hold citizenship.

A health certificate issued by a provincial-level hospital or higher in Vietnam, or by another medical facility but must be equivalent to a provincial-level hospital. If the health certificate is issued abroad, it shall comply with the regulations of that country.

The health certificate is valid for a period of six months from the date of issuance until the date when the competent authority receives the application for a work permit.

A self-written curriculum vitae of the foreigner with a color photograph affixed, the size of the photograph being 3cm x 4cm.

Three color photographs measuring 3cm x 4cm, bareheaded, frontal view, face clearly visible, both ears clearly visible, without glasses, taken not more than one year prior to the date of submission of the application for a work permit.

Judicial record, health certificate, self-written curriculum vitae, certified copies of qualifications and vocational certificates, and self-assessment of qualifications and vocational certificates and management level if in a foreign language must be translated into Vietnamese. The translation must be legalized by a consular officer or certified by a Notary Public of the Socialist Republic of Vietnam.

b) Issuing a work permit:

The work permit is issued according to the term of the labor contract concluded or expected to be concluded, or according to the decision to send abroad for work. The term of the labor contract for issuing a work permit is the term of a fixed-term labor contract from one to three years, or a seasonal or specific task labor contract under one year.

Within fifteen days from the date of receipt of a complete and valid application for a work permit, the agency authorized by the Ministry of Labor, Invalids and Social Affairs must issue a work permit to the foreign worker. In case a work permit cannot be issued, a written response stating the reasons must be provided.

2. Extension of work permits.

a) Application for extension of work permit: At least thirty days before the expiration date of the previous labor contract, the employer must submit one set of application documents for the extension of the work permit to the state agency authorized by the Ministry of Labor, Invalids and Social Affairs to extend the work permit for the foreign worker. The application includes:

An application for extension of the work permit by the employer. It must clearly state the reason why a Vietnamese replacement has not been trained; the name of the Vietnamese person already or currently being trained, training costs, training duration, and training location to replace the foreign worker.

A certified copy of the extended contract. This copy must be confirmed and stamped by the employer.

The work permit issued.

b) Extension of work permit:

The issued work permit can be extended once. The extension period of the work permit corresponds to the extension period of the signed contract.

Example; Mr. A concluded a labor contract with a term of three years with Company X and was issued a work permit with a term of three years. Due to needs, Mr. A and Company X agreed to extend the previously concluded labor contract for an additional three years, thus the work permit was extended for a term of three years.

Within fifteen days from the date of receipt of a complete and valid application for the extension of the work permit, the agency authorized by the Ministry of Labor, Invalids and Social Affairs must extend the work permit. If the extension is not granted, a written response stating the reasons must be provided. Work permits will not be extended for those who seriously violate Vietnamese labor laws.

3. Reissuing work permits in cases of loss or damage.

a) Application for reissue of work permit: In the event that the issued work permit is lost or damaged, the foreign worker must submit an application for a work permit, confirmed and proposed by the employer to the agency that issued the work permit.

b) Reissuing work permit: Within fifteen days from the date of receipt of a complete and valid application for reissuing the work permit, the competent authority (the agency that issued the lost or damaged work permit) must review and reissue the work permit for the foreign worker. If the reissue is not granted, a written response stating the reasons must be provided.

IIIWORK PERMIT

1. The work permit is issued according to the model prescribed by the Ministry of Labor, Invalids and Social Affairs in Decision No. 311/2000/QĐ-LĐTBXH dated March 29, 2000, regarding the issuance and management of work permits for foreign workers working at enterprises and organizations in Vietnam.

2. The work permit must be filled out completely according to the prescribed model.

3. The work permit becomes invalid in the following cases:

a) Expiration of the work permit term;

b) Termination of the labor contract before the term;

c) Revocation of the work permit by the competent state authority due to violation of Vietnamese laws;

d) The enterprise or organization employing workers ceases operations due to dissolution, bankruptcy, revocation of business license by the competent state authority, expiration of the business license, or withdrawal of the business license by the enterprise owner;

đ) Expiration of the labor cooperation agreement or investment contract.

4. Foreign workers are responsible for keeping the work permit during the working period specified in the issued work permit. Within fifteen days from the date the work permit expires, the foreign worker must return the work permit to the employer for submission to the issuing authority.

IV. DELEGATION OF AUTHORITY TO ISSUE WORK PERMITS FOR FOREIGN WORKERS

1. The Ministry of Labor, Invalids and Social Affairs delegates the authority to issue work permits, extend work permits, and reissue work permits to the Departments of Labor, Invalids and Social Affairs of provinces and centrally-administered cities to issue work permits for foreign workers working within their respective jurisdictions (excluding enterprises and organizations under the management of provincial industrial zone management boards) in accordance with the provisions of the law starting from July 1, 2000.

2. The Ministry of Labor - Invalids and Social Affairs delegates to the Management Board of provincial industrial zones (including those under the Vietnam Industrial Zone Management Board) the authority to issue work permits, extend work permits, and reissue work permits for foreign workers employed in enterprises and organizations under their respective industrial zone management boards, in accordance with the provisions of the law, from July 1, 2000.

3. Revoke the delegation: In cases where the agency has been delegated by the Ministry of Labor - Invalids and Social Affairs to issue work permits, extend work permits, and reissue work permits for foreign workers working at enterprises and organizations in Vietnam, the Ministry of Labor - Invalids and Social Affairs will delegate authority for such cases.

V. IMPLEMENTATION ORGANIZATION

1. Employers shall be responsible for:

a) Adhering strictly to the provisions of this Circular.

b) Reporting the situation of using foreign workers who were working as of June 30, 2000, to the Department of Labor - Invalids and Social Affairs or the provincial industrial zone management board at the main office location on July 15, 2000.

c) Reporting the situation of using foreign workers to the Department of Labor - Invalids and Social Affairs or the provincial industrial zone management board (at the main office location) before July 15 for the mid-year report and before January 15 of the following year for the annual report.

2. The Department of Labor - Invalids and Social Affairs and the provincial industrial zone management board shall be responsible for:

a) Accepting and storing applications for work permits, applications for extension of work permits, and applications for reissuance of work permits;

b) Issuing work permits, extending work permits, and reissuing work permits for foreign workers;

c) Monitoring and inspecting the implementation of the use of work permits in enterprises and organizations that have been issued work permits;

d) Accepting and compiling the situation of using foreign workers from employers within their jurisdiction;

đ) Urging, inspecting, and compiling to report the situation of using foreign labor as of June 30, 2000, to the Ministry of Labor - Invalids and Social Affairs before July 31, 2000;

e) Compiling reports on the situation of using foreign labor and submitting them to the Ministry of Labor - Invalids and Social Affairs before July 31 for the mid-year report and before January 31 of the following year for the annual report.

3. Foreign workers who have been issued work permits according to Circular No. 09/LDTBXH-TT dated March 18, 1997, of the Ministry of Labor - Invalids and Social Affairs, if still valid, may continue to use them until they expire. Upon expiration, if there is a need to extend the work permit, it can be extended for the duration specified in the labor contract and processed through the agency delegated by the Ministry of Labor - Invalids and Social Affairs. For cases where the work permit was lost or damaged previously issued by the Ministry of Labor - Invalids and Social Affairs, the reissuance of the work permit will also be processed through the agency delegated by the Ministry of Labor - Invalids and Social Affairs.

4. This Circular takes effect fifteen days after the date of issuance. This Circular replaces Circular No. 09/LDTBXH-TT dated March 18, 1997, of the Ministry of Labor - Invalids and Social Affairs guiding the implementation of issuing work permits for foreign workers working at enterprises and organizations in Vietnam.

During the implementation of this Circular, if there are any difficulties, they should be promptly reported to the Ministry of Labor - Invalids and Social Affairs for study and resolution./.