Circular No. 08/2008/TT-BLDTBXH guiding the implementation of certain provisions of Government Decree No. 34/2008/NĐ-CP on the recruitment and management of foreign workers in Vietnam.

CIRCULAR

Guidelines for Implementing Certain Provisions of Decree No. 34/2008/NĐ-CP dated March 25, 2008 of the Government on Recruitment and Management of Foreign Workers in Vietnam

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Implementing Decree No. 34/2008/NĐ-CP dated March 25, 2008 of the Government on Recruitment and Management of Foreign Workers in Vietnam (hereinafter referred to as Decree No. 34/2008/NĐ-CP), the Ministry of Labor - Invalids and Social Affairs provides guidance as follows:

I. Object and Scope of Application:

The object and scope of application of this Circular are foreign workers in Vietnam and enterprises, organizations in Vietnam that employ foreign workers as stipulated in Article 1 of Decree No. 34/2008/NĐ-CP, specifically as follows:

1. Foreign workers in Vietnam working under the following forms:

a) Entering into labor contracts with enterprises, organizations in Vietnam in accordance with Vietnamese labor laws;

b) Transferring within a business entity with commercial presence in Vietnam;

c) Performing economic, trade, financial, banking, insurance, scientific and technological, cultural, sports, educational, and health-related contracts;

d) Service provider under a contract;

đ) Offering services;

e) Foreign representatives of non-governmental organizations permitted to operate in accordance with Vietnamese laws.

The foreign workers mentioned above shall be collectively referred to as foreign workers.

2. Enterprises and organizations employing foreign workers, including:

a) Enterprises operating under the Law on Enterprises and the Investment Law, including:

- State-owned enterprises operating under the Law on State-Owned Enterprises 2003, which continue to operate in accordance with Article 166 of the Enterprise Law dated November 29, 2005.

- Limited liability companies, joint-stock companies, private enterprises, and partnerships established in accordance with the Enterprise Law 1999, which continue to operate in accordance with Clause 1 of Article 170 of the Enterprise Law dated November 29, 2005.

- Foreign-invested enterprises that have been granted investment licenses under the Law on Foreign Investment in Vietnam, including:

+ Joint ventures;

+ Wholly foreign-owned enterprises;

+ Joint-stock companies with foreign investment capital established in accordance with Decree No. 38/2003/NĐ-CP dated April 15, 2003 of the Government on converting certain foreign-invested enterprises to operate under the form of joint-stock companies;

+ Investment projects under cooperation agreements that have been granted investment licenses and investment certificates in accordance with the Law on Foreign Investment in Vietnam.

b) Overseas contractors (main contractors, subcontractors) undertaking projects in Vietnam;

c) Representative offices and branches of economic, trade, financial, banking, insurance, scientific and technological, cultural, sports, educational, and health organizations;

d) Political-social organizations, political-social-professional organizations, social organizations, social-professional organizations, non-governmental organizations;

đ) State-run units;

e) Health, cultural, educational, and sports facilities (including those established under the Enterprise Law and the Investment Law), including:

- Sports facilities established and operated in accordance with Vietnamese laws on physical education and sports;

- Schools, centers, and facilities for education, training, and vocational training established and operated in accordance with Vietnamese laws on education, training, vocational training, and labor;

- Hospitals, institutes with beds, health centers, health stations, centers for preventing social diseases, preventive health centers, treatment camps, and other health facilities established and operated in accordance with Vietnamese laws on health;

- Cultural facilities established and operated in accordance with Vietnamese laws.

g) Offices of foreign or international projects in Vietnam;

h) Management offices of overseas joint ventures under cooperation agreements in Vietnam;

i) Legal service organizations in Vietnam in accordance with Vietnamese laws;

k) Cooperatives and Cooperative Unions established and operating under the Law on Cooperatives.

These enterprises and organizations mentioned above shall be collectively referred to as employers.

II. Recruitment and Management of Foreign Workers in Vietnam

1. The application dossier for foreign workers' recruitment as stipulated in Clause 2, Article 4 of Decree No. 34/2008/NĐ-CP is defined as follows:

a) A foreign worker's job application form according to Model No. 1 issued together with this Circular;

b) A criminal record certificate issued by the competent authority of the country where the foreign worker resided before coming to Vietnam. In case the foreign worker has resided in Vietnam for at least six months, only a criminal record certificate issued by the Department of Justice of the province or city in Vietnam where the foreign worker resides is required.

c) A self-written resume of the foreign worker according to Model No. 2 issued together with this Circular and affixed with the foreign worker's photograph.

d) A health certificate issued abroad or a health certificate issued in Vietnam in accordance with regulations of the Vietnamese Ministry of Health;

đ) Copies of certificates regarding the foreign worker's professional qualifications, including bachelor's, master's, and doctoral degrees relevant to the profession and job requirements of the employer.

For foreign workers who are traditional artisans or experienced in their professions or production management without certification or diplomas, they must provide a confirmation of at least five years of experience in their profession or production management, certified by a competent authority abroad and relevant to the job requirements of the employer.

Specifically for football players, a list of football clubs they have played for or a certificate from the club they last played for is required.

e) Three (3) color photographs (dimensions 3cm x 4cm, bareheaded, frontal view, clear face, clear both ears, not wearing glasses, white background), taken no more than six (6) months prior to the submission of the application dossier by the foreign worker.

2. Regarding the time frame for announcing the need for recruitment as stipulated in Point a, Clause 4, Article 4 of Decree No. 34/2008/NĐ-CP is defined as follows:

The notification of labor recruitment needs before recruiting workers must be made at least thirty (30) days in advance, calculated according to the Gregorian calendar.

Example:

If an employer plans to recruit workers on May 5, 2008, the notification of labor recruitment must be made before April 5, 2008.

3. The conclusion of labor contracts in accordance with point d, Clause 4, Article 4 of Decree No. 34/2008/NĐ-CP is stipulated as follows:

After a foreigner is granted a work permit, the employer and the foreigner must conclude a labor contract in writing in accordance with Vietnamese labor laws. Within five (5) working days from the date of concluding the labor contract, the employer shall have the responsibility to send a copy of the concluded labor contract to the authority that issued the work permit for that foreigner.

4. The notification when a foreigner comes to offer services in accordance with Article 7 of Decree No. 34/2008/NĐ-CP is stipulated as follows:

A foreigner coming to offer services must notify in writing (through direct delivery, postal service, fax, etc.) at least seven (7) working days in advance about their intention to offer services to the Department of Labor, Invalids, and Social Affairs of the locality where the foreigner intends to offer services, including their name, age, nationality, passport number, start and end dates of work, and specific job details.

Example:

A foreigner planning to offer services in Hai Duong Province starting from May 16, 2008, must submit a written notification so that the Department of Labor, Invalids, and Social Affairs receives it before May 7, 2008.

5. The format of the work permit in accordance with Clause 2, Article 9 of Decree No. 34/2008/NĐ-CP is stipulated as follows:

a) The form of the work permit:

The work permit has dimensions of 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) The content of the work permit, according to Model 3 issued together with this Circular.

c) The work permit is organized for printing and distribution uniformly by the Employment Bureau under the Ministry of Labor, Invalids, and Social Affairs.

6. The dossier and procedure for applying for a work permit in accordance with Clause 3 and Clause 5, Article 9 of Decree No. 34/2008/NĐ-CP includes:

a) Dossier for applying for a work permit:

- A written request for a work permit from the employer or the Vietnamese partner according to Model 4 issued together with this Circular;

- The registration dossier for foreign workers to apply for employment according to Point 1, Section II of this Circular.

For foreign workers who move internally within a business as provided in Point b, Clause 1, Article 1 of Decree No. 34/2008/NĐ-CP, the registration form for employment is not required in the dossier for applying for a work permit but instead, a letter from the foreign enterprise sending the foreign worker to work at its commercial presence in Vietnam should be included, specifying the period during which the foreign worker was employed by the foreign enterprise.

For foreign workers as provided in Points c and d, Clause 1, Article 1 of Decree No. 34/2008/NĐ-CP, the registration form for employment is not required in the dossier for applying for a work permit but instead, a contract signed between the Vietnamese partner and the foreign party should be included.

For foreign workers as provided in Point e, Clause 1, Article 1 of Decree No. 34/2008/NĐ-CP, the registration form for employment is not required in the dossier for applying for a work permit but instead, a certificate from a foreign non-governmental organization permitted to operate under Vietnamese law should be included.

All documents mentioned above must be translated into Vietnamese and notarized.

b) Procedure for issuing a work permit:

- At least twenty (20) working days before the date the foreigner is expected to start working at a business, agency, or organization in Vietnam, the employer or the Vietnamese partner must submit one (1) application dossier for a work permit to the Department of Labor, Invalids, and Social Affairs of the locality where the employer or the Vietnamese partner's main office is located.

In cases where a foreigner regularly works exclusively for an employer or Vietnamese partner in another province or city different from the location of the main office, the application dossier for a work permit must be submitted to the Department of Labor, Invalids, and Social Affairs of the province or city where the foreigner regularly works.

- Within fifteen (15) working days from the date of receiving a complete and valid application dossier for a work permit, the Department of Labor, Invalids, and Social Affairs must issue a work permit to the foreigner. If the work permit is not issued, a written response explaining the reasons must be provided.

c) Receiving and delivering the work permit:

The employer or Vietnamese partner is responsible for receiving the work permit issued by the Department of Labor, Invalids, and Social Affairs and delivering it to the foreigner.

7. The dossier and procedure for issuing a work permit for a foreigner who has already been granted a work permit and whose work permit is still valid, and who wishes to enter into additional labor contracts with other employers in accordance with Point c, Clause 5, Article 9 of Decree No. 34/2008/NĐ-CP is stipulated as follows:

a) The dossier for applying for a work permit includes:

- A written request for a work permit from the employer or Vietnamese partner according to Model 4 issued together with this Circular.

- Documents specified in Point a, d, Clause 1, Section II of this Circular;

- Three (3) color photographs (dimensions 3cm x 4 cm, bareheaded, frontal view, clear face, visible ears, without glasses, white background), taken no more than six (6) months prior to the submission of the dossier by the foreigner.

- A copy of the current valid work permit.

b) The procedure for issuing a work permit, as stipulated in Point b, Clause 6, Section II of this Circular.

c) Receiving and delivering the work permit, as stipulated in Point c, Clause 6, Section II of this Circular.

8. The file, procedure for extending work permits under Article 10 of Decree No. 34/2008/NĐ-CP is stipulated as follows:

a) File for requesting extension of work permit:

- A request for extension of work permit from the employer or the Vietnamese partner according to Model No. 5 issued together with this Circular;

- A copy of the labor contract certified by the employer or a copy of the contract signed between the Vietnamese partner and the foreign partner;

- The work permit already issued by the competent authority for that foreigner.

b) Procedure for extending work permit:

- At least 30 (thirty) days before the expiration date of the work permit, counted according to the Gregorian calendar, the employer or the Vietnamese partner must submit the file for requesting extension of work permit to the Department of Labor, Invalids and Social Affairs which issued the work permit.

- The employer or the Vietnamese partner is responsible for submitting one (1) file for requesting extension of work permit to the Department of Labor, Invalids and Social Affairs which issued the work permit.

- Within fifteen (15) working days from the date of receiving the complete file for requesting extension of work permit, the Department of Labor, Invalids and Social Affairs must extend the work permit. In case of not extending the work permit, it must reply in writing and specify the reasons.

c) Receiving and delivering the work permit, as stipulated in Point c, Clause 6, Section II of this Circular.

9. The file, procedure for reissuing work permits under Article 11 of Decree No. 34/2008/NĐ-CP is stipulated as follows:

a) File for requesting reissue of work permit:

- An application for reissuing work permit from the foreigner according to Model No. 6 issued together with this Circular;

- A request for reissuing work permit from the employer or the Vietnamese partner according to Model No. 7 issued together with this Circular;

- The work permit already issued but damaged. In case of losing the work permit, the foreigner must provide a written explanation about the loss of the work permit according to Point b Clause 9 Section II of this Circular.

- Three (3) color photographs (dimensions 3cm x 4 cm, bareheaded, frontal view, clear face, visible ears, without glasses, white background), taken no more than six (6) months prior to the submission of the dossier by the foreigner.

b) Procedure for reissuing work permit:

- Within three (3) working days from the date the foreigner discovers the loss or damage of the work permit, the foreigner must report in writing to the employer or the Vietnamese partner, the content of the report must clearly explain the reason for the loss or damage.

- Within thirty (30) days counted according to the Gregorian calendar from the date of loss or damage of the work permit, the employer or the Vietnamese partner must submit the file for requesting reissue of work permit to the Department of Labor, Invalids and Social Affairs which issued the work permit.

c) Receiving and delivering the work permit, as stipulated in Point c, Clause 6, Section II of this Circular.

10. Report on the list of foreigners working in Vietnam under Clause 6 Article 9 of Decree No. 34/2008/NĐ-CP is stipulated as follows:

For foreigners working in Vietnam without requiring a work permit according to Clause 1 Article 9 of Decree No. 34/2008/NĐ-CP, the employer or the Vietnamese partner must report according to Model No. 8 issued together with this Circular and attach the relevant documents of the foreigner according to Clause 6 Article 9 of Decree No. 34/2008/NĐ-CP to the Department of Labor, Invalids and Social Affairs where the main office is located.

In case the foreigner works regularly at a province or city different from the location of the main office, the report on the list of foreigners working regularly must be submitted to the Department of Labor, Invalids and Social Affairs of the province or city where the foreigner works regularly according to Model No. 8 mentioned above.

11. Notification of foreigners coming to work under Clause 3 Article 13 of Decree No. 34/2008/NĐ-CP is stipulated as follows:

When a foreigner comes to work in provinces or centrally-administered cities (not the province or city where the foreigner works regularly) for ten (10) consecutive days or thirty (30) cumulative days within one (1) year, the employer or the Vietnamese partner must notify in writing about the foreigner coming to work, including: name, age, nationality, passport number, work permit number already issued, start and end date of work, job position and place of work of the foreigner, and attach a copy of the issued work permit with the Department of Labor, Invalids and Social Affairs where the foreigner comes to work.

12. Report on the list of foreigners working in Vietnam under Clause 1 Article 20 of Decree No. 34/2008/NĐ-CP is stipulated as follows:

Spouse referred to in Clause 1 Article 20 of Decree No. 34/2008/NĐ-CP mentioned above is the spouse of foreigners working in diplomatic agencies, consular agencies, representative offices of international organizations under the United Nations system, regional and sub-regional organizations.

Enterprises, organizations, individuals using foreigners must report the list of foreigners working regularly seven (7) working days before to the local Department of Labor - Invalids and Social Affairs where the foreigners work according to Model No. 8 issued together with this Circular.

III. Implementation organization

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

a) Issuing, extending, and reissuing work permits according to the provisions of the law. Upon receipt of the file for requesting issuance of work permit, the file for requesting extension of work permit, and the documents for requesting reissuance of work permit, they must record in the tracking book and issue a receipt to the employer or the Vietnamese partner. The receipt must clearly state the date, month, year of receiving the file, the documents included in the file, and the response deadline.

b) Guiding, inspecting, and auditing the implementation of legal regulations on the recruitment and management of foreign workers working in Vietnam.

c) Annually reporting to the Ministry of Labor, Invalids and Social Affairs (Employment Bureau) before July 15 and January 15 on the situation of issuing work permits and using foreign workers in enterprises, agencies, and organizations under their jurisdiction according to Model No. 10 issued together with this Circular.

2. Responsibilities of employers and Vietnamese partners in Vietnam:

a) Comply fully with Vietnamese laws on the recruitment and management of foreign workers in Vietnam.

b) Report annually before July 5 and January 5 on the situation of using foreign labor for the first six months and the entire previous year to the Department of Labor - Invalids and Social Affairs at the location where the enterprise or organization has its main office or regularly operates, using Form No. 9 issued together with this Circular. At the same time, implement ad hoc reports as required by state agencies managing labor regarding the situation of using foreign labor.

c) Pay the fee for issuing work permits, extending work permits, and reissuing work permits in accordance with the regulations of the People's Councils of provinces and centrally governed cities.

3. Effective Date:

This Circular takes effect fifteen days from the date of publication in the Official Gazette.

This Circular replaces Circular No. 04/2004/TT-BLDTBXH dated March 10, 2004, issued by the Ministry of Labor - Invalids and Social Affairs guiding the implementation of certain provisions of Decree No. 105/2003/NĐ-CP dated September 17, 2003, of the Government detailing and guiding the implementation of certain provisions of the Labor Code on the recruitment and management of foreign labor working in Vietnam; and Circular No. 24/2005/TT-BLDTBXH dated September 26, 2005, amending and supplementing certain provisions of Circular No. 04/2004/TT-BLDTBXH dated March 10, 2004, issued by the Ministry of Labor - Invalids and Social Affairs guiding the implementation of certain provisions of Decree No. 105/2003/NĐ-CP dated September 17, 2003, of the Government detailing and guiding the implementation of certain provisions of the Labor Code on the recruitment and management of foreign labor working in Vietnam.

Any difficulties encountered during implementation should be promptly reported to the Ministry of Labor - Invalids and Social Affairs for study and resolution./.