Decree No. 102/2013/ND-CP detailing implementation of certain articles of the Labor Code regarding foreign labor working in Vietnam

DECREE

Detailed implementation regulations for certain articles of the Labor Code concerning foreign labor working in Vietnam

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Pursuant to the Law on Organization of the Government dated December 25, 2001;

Based on the Labor Code dated June 18, 2012;

Decree No. 07/2021/NĐ-CP

The Government issues this Decree to provide detailed implementation regulations for certain articles of the Labor Code concerning foreign labor working in Vietnam,

PART I

GENERAL PROVISIONS

Article 1. Scope of Regulation

This Decree provides detailed implementation regulations for the Labor Code on issuing work permits to foreign citizens entering Vietnam for work, and the expulsion of foreign workers working in Vietnam without work permits.

Article 2. Applicability

1. Foreign workers entering Vietnam to work (hereinafter referred to as foreign workers) shall be in the following forms:

a) Performing labor contracts;

b) Internal transfer within enterprises;

c) Performing various types of contracts or agreements related to economics, trade, finance, banking, insurance, science and technology, culture, sports, education, vocational training, and healthcare;

d) Service provider under a contract;

đ) Offering services;

e) Working for non-governmental organizations, international organizations operating in Vietnam in accordance with Vietnamese laws;

g) Volunteer;

h) Person responsible for establishing a commercial presence;

i) Manager, executive, specialist, technical worker;

k) Participating in implementing tenders, projects in Vietnam.

2. Employers of foreign workers include:

a) Enterprises operating under the Enterprise Law, Investment Law, or international treaties to which the Socialist Republic of Vietnam is a party;

b) Foreign or domestic contractors (main contractor, subcontractor) participating in bids and implementing contracts;

c) Representative offices, branches of enterprises, agencies, organizations, and contractors established with permission from competent authorities;

d) State agencies;

đ) Political organizations, political-social organizations, occupational-political organizations, social organizations, occupational-social organizations, non-governmental organizations from foreign countries, and international organizations in Vietnam;

e) Public institutions established in accordance with the law;

g) Foreign project offices or international organizations in Vietnam;

h) Management offices of foreign joint venture partners according to business cooperation contracts in Vietnam;

i) Law firms operating in Vietnam in accordance with the law;

k) Cooperatives, cooperative unions established and operating under the Cooperative Law;

l) Associations, business associations established in accordance with the law;

m) Households, individuals permitted to engage in business operations in accordance with the law.

Article 3. Explanation of Terms

In this Decree, the following terms are understood as follows:

1. Foreign workers transferring within a company are managerial staff, directors, experts, and technical workers of a foreign enterprise that has established a commercial presence in Vietnam, temporarily transferring within the company to a commercial presence in Vietnam, and have been employed by the foreign enterprise for at least 12 months prior.

2. Volunteers are foreign workers who work in Vietnam on a voluntary basis and without remuneration to implement international treaties to which the Socialist Republic of Vietnam is a party.

3. Experts are foreign workers recognized as experts abroad or foreign workers holding bachelor's degrees or higher, or equivalent qualifications, and having at least five years of work experience in their field of study.

4. Technical workers are foreign workers who have received specialized technical training for at least one year and have at least three years of work experience in their field of technical training.

Chapter II

ISSUANCE OF WORK PERMITS, RENEWAL OF WORK PERMITS, AND EXPULSION OF FOREIGN WORKERS WITHOUT WORK PERMITS

Section 1

DETERMINATION OF POSITIONS EMPLOYING FOREIGN WORKERS

Article 4. Demand for using foreign workers

1. Annually, employers (excluding contractors) are responsible for determining the demand for using foreign workers for each position where Vietnamese workers cannot meet the requirements, and reporting and explaining to the Chairman of the People's Committee of the province or centrally administered city (hereinafter referred to as the Provincial People's Committee) where the employer's headquarters is located. If there is a change in the demand for using foreign workers during the process, the employer must report to the Chairman of the Provincial People's Committee.

2. The Chairman of the Provincial People's Committee shall issue a written approval for each employer regarding the use of foreign workers for each position.

Article 5. Demand for foreign labor of contractors

1. In cases where it is necessary to use foreign workers with expertise suitable for the tender package requirements, the tender invitation documents and request documents must declare the number, qualifications, professional skills, and experience of foreign workers mobilized to implement the tender package; strictly prohibit the use of foreign workers to perform tasks that Vietnamese workers can undertake and meet the requirements of the tender package, especially unskilled labor and labor without vocational training.

The evaluation and selection of contractors must be carried out according to the regulations on labor use stated in the tender invitation documents and request documents, and the bidding regulations under Vietnamese law.

2. When implementing the contract, the project owner must organize supervision and require the contractor to comply with the contents committed in the bid documents and proposal documents regarding the use of Vietnamese workers and foreign workers.

3. Before recruiting foreign workers, the contractor has the responsibility to propose the recruitment of Vietnamese workers into positions intended for foreign workers (accompanied by confirmation from the project owner) to the Chairman of the People's Committee of the province where the contractor implements the tender package.

In cases where the contractor needs to adjust or supplement the number of workers already determined in the bid documents and proposal documents, the project owner must confirm the adjustment plan and supplementary demand for foreign workers' labor required by the contractor.

4. The Chairman of the People's Committee of the province directs local agencies and organizations to introduce and supply Vietnamese workers to the contractor. Within a maximum period of two months from the date of receiving a recruitment request for 500 or more Vietnamese workers, and one month from the date of receiving a recruitment request for fewer than 500 Vietnamese workers, if no introduction or supply of Vietnamese workers is made to the contractor, the Chairman of the People's Committee of the province will consider and decide on the recruitment of foreign workers into positions where Vietnamese workers cannot be recruited.

5. The project owner is responsible for guiding, urging, and inspecting the contractor's implementation of regulations on the recruitment and use of foreign workers working for the contractor as stipulated by law; monitoring and managing foreign workers to ensure compliance with Vietnamese laws; quarterly reporting to the Department of Labor, Invalids, and Social Affairs about the situation of recruitment, use, and management of foreign workers by contractors as prescribed by the Ministry of Labor, Invalids, and Social Affairs.

6. Quarterly, the Department of Labor, Invalids, and Social Affairs collaborates with the police agency and related agencies to inspect the implementation of Vietnamese laws concerning foreign workers working at tender packages implemented by winning contractors within their jurisdiction.

Article 6. Report on the use of foreign workers

Annually and every six months, the Department of Labor, Invalids, and Social Affairs is responsible for reporting to the Ministry of Labor, Invalids, and Social Affairs on the demand for foreign labor, approval of the demand for foreign labor, and the situation of foreign labor use within their jurisdiction.

Section 2

FOREIGN WORKERS NOT ELIGIBLE FOR WORK PERMITS

Article 7. Cases where foreign workers are not required to obtain a work permit

1. Foreign workers as prescribed in Clauses 1, 2, 3, 4, 5, 6, 7, and 8 of Article 172 of the Labor Code.

2. Other cases not requiring a work permit, including:

a) Internal transfers within enterprises operating in the scope of 11 service sectors listed in Vietnam's commitments to the World Trade Organization, including: business; information; construction; distribution; education; environment; finance; health; tourism; cultural entertainment and transportation;

The Ministry of Industry and Trade shall provide guidance on the basis and procedures for determining foreign workers transferring internally within enterprises operating in the above-mentioned 11 service sectors.

b) Entering Vietnam to provide specialized and technical consulting services or perform other tasks serving research, construction, evaluation, monitoring, management, and implementation of programs and projects using official development assistance (ODA) funds according to regulations or agreements in international treaties on ODA signed between competent authorities of Vietnam and foreign countries;

c) Being granted a permit to operate information and press activities in Vietnam by the Ministry of Foreign Affairs in accordance with the law;

d) Teachers of foreign organizations sent by competent authorities of their countries to teach at international schools under the jurisdiction of diplomatic missions of foreign countries or international organizations in Vietnam;

đ) Volunteer workers;

Foreign workers as prescribed in Points d and đ Clause 2 of this Article must have confirmation from foreign diplomatic missions or international organizations in Vietnam.

e) Individuals with master’s degree or higher qualifications providing consultancy, teaching, and scientific research services at universities or vocational training institutions at college level for no more than 30 days;

Universities and vocational training institutions at college level must issue a confirmation letter regarding the foreign worker's consultancy, teaching, and scientific research activities.

g) Foreign workers entering Vietnam to implement international agreements concluded by central state agencies, provincial-level agencies, and central-level political-social organizations in accordance with the law;

Central state agencies, provincial-level agencies, and central-level political-social organizations must notify the competent authority issuing work permits about foreign workers entering Vietnam to implement international agreements they have signed.

h) Other cases decided by the Prime Minister upon the proposal of the Ministry of Labor, Invalids, and Social Affairs.

Article 8. Procedures for confirming foreign workers not required to obtain a work permit

1. The Department of Labor, Invalids and Social Affairs has the authority to confirm that foreign workers are not subject to labor permit issuance.

2. Employers must request the Department of Labor, Invalids, and Social Affairs where the foreign worker regularly works to confirm that the foreign worker does not require a work permit at least seven working days before the foreign worker starts working.

3. The application dossier for confirmation that the foreign worker is not subject to labor permit issuance includes:

a) A document requesting confirmation that the foreign worker is not subject to labor permit issuance;

b) A list of foreign workers containing the following information: surname, name; age; gender; nationality; passport number; start and end date of employment; position of the foreign worker;

c) Documents proving that the foreign worker does not require a work permit.

Documents proving that the foreign worker does not require a work permit must be one original copy or one certified copy if in a foreign language, then exempted from consular legalization but must be translated into Vietnamese and certified in accordance with Vietnamese law.

4. Within three working days from the date of receiving complete application files, the Department of Labor, Invalids, and Social Affairs shall issue a confirmation letter to the employer. If not confirmed, a reply letter stating the reasons must be issued.

Section 3

ISSUANCE OF LABOR PERMIT

Article 9. Conditions for Issuance of Labor Permit

1. Having full capacity for civil acts as provided by law.

2. Having health suitable for job requirements.

3. Being a manager, executive director, specialist, or technical worker.

For foreign workers practicing medicine, directly treating patients in Vietnam, or working in education, training, and vocational training, they must meet all conditions stipulated by Vietnamese law on medical practice, education, training, and vocational training.

4. Not being a person convicted of a crime or pursued for criminal responsibility under Vietnamese law and foreign law.

5. Receiving written approval from the competent state agency regarding the use of foreign workers.

Article 10. Application Dossier for Issuance of Labor Permit

1. An application document for labor permit issuance by the employer in accordance with regulations of the Ministry of Labor, Invalids and Social Affairs.

2. Health certificate issued abroad or in Vietnam in accordance with the regulations of the Ministry of Health.

3. Confirmation letter stating that the person is not a criminal or subject to criminal responsibility under Vietnamese law and foreign law valid for six months from the date of submitting the application.

4. Confirmation letter stating that the person is a manager, director, specialist, or technical worker.

For certain occupations and jobs, the confirmation letter of the foreign worker's professional and technical qualifications can be replaced by one of the following documents:

a) Certificate recognizing them as artisans in traditional trades issued by competent authorities of foreign countries;

b) Document proving the experience of foreign football players;

c) Commercial aviation pilot license issued by a competent authority of Vietnam for foreign pilots;

d) Aircraft maintenance license issued by a competent authority of Vietnam for foreign workers engaged in aircraft maintenance work.

5. Letter from the Chairman of the Provincial People's Committee approving the use of foreign workers.

6. Two color photographs (size 4cm x 6cm, bareheaded, frontal view, clear face, both ears visible, without glasses, white background), taken no more than six months prior to the submission of the application.

7. Copy of the passport or other travel document valid according to the law.

Documents prescribed in Clauses 2, 3, and 4 of this Article must be one original copy or one certified copy; if in a foreign language, they must be legalized by consular certification except when exempted from consular certification under international treaties to which the Socialist Republic of Vietnam and relevant foreign countries are parties or based on the principle of reciprocity or as provided by law, and translated into Vietnamese and certified in accordance with Vietnamese law.

8. Related documents concerning foreign workers:

a) For foreign workers as prescribed in Point b Clause 1 Article 2 of this Decree, there must be a letter from the foreign enterprise sending them to work at its commercial presence in Vietnam and a document proving that the foreign worker was employed by the foreign enterprise for at least 12 months before working in Vietnam.

b) For foreign workers as provided for in Point c Clause 1 Article 2 of this Decree, there must be a contract or agreement signed between the Vietnamese party and the foreign party, which must include an agreement on the foreign worker working in Vietnam;

c) For foreign workers as provided for in Point d Clause 1 Article 2 of this Decree, there must be a service provision contract signed between the Vietnamese party and the foreign party, and a document proving that the foreign worker has worked for a foreign enterprise without a commercial presence in Vietnam for at least two years;

d) For foreign workers as provided for in Point đ Clause 1 Article 2 of this Decree, there must be a document from the service provider sending foreign workers to Vietnam to negotiate service provision;

đ) For foreign workers as provided for in Point e Clause 1 Article 2 of this Decree, there must be a certificate of a foreign non-governmental organization or international organization permitted to operate according to Vietnamese law;

e) For foreign workers as provided for in Point h Clause 1 Article 2 of this Decree, there must be a document from the service provider sending foreign workers to Vietnam to establish a commercial presence of the service provider;

g) For foreign workers as provided for in Point i Clause 1 Article 2 of this Decree who participate in the activities of a foreign enterprise that has established a commercial presence in Vietnam, there must be a document proving that the foreign worker participates in the activities of that foreign enterprise;

The documents stipulated in this Clause shall be one original or one copy, if in a foreign language, they are exempted from consular legalization but must be translated into Vietnamese and certified in accordance with Vietnamese law;

Article 11. Validity period of work permit

The validity period of the work permit issued shall not exceed two years and shall be based on the duration of one of the following cases:

1. Duration of the employment contract expected to be signed;

2. The duration of the foreign party dispatching foreign workers to work in Vietnam;

3. The duration of the contract or agreement signed between the Vietnamese party and the foreign party;

4. The duration of the service provision contract or agreement signed between the Vietnamese party and the foreign party;

5. Duration stated in the document of the service provider sending foreign workers to Vietnam to negotiate service provision;

6. The duration determined in the certificate of a foreign non-governmental organization or international organization permitted to operate according to Vietnamese law;

7. Duration stated in the document of the service provider sending foreign workers to Vietnam to establish a commercial presence of the service provider;

8. Duration stated in the document proving that the foreign worker is involved in the activities of a foreign business that has established a commercial presence in Vietnam.

Article 12. Procedure for Issuing Work Permits

1. At least fifteen working days before the date when the foreign worker is expected to start working for the employer, the employer must submit the application dossier for the issuance of a work permit to the Department of Labor, Invalids and Social Affairs where the foreign worker will have the entire working time for the employer;

In case the foreign worker does not have the entire working time for the employer in one province or centrally-run city, the application dossier for the issuance of a work permit must be submitted to the Department of Labor, Invalids and Social Affairs where the employer's main office is located;

2. Within ten working days from the date of receiving the complete dossier, the Department of Labor, Invalids and Social Affairs shall issue a work permit for the foreign worker according to the form prescribed by the Ministry of Labor, Invalids and Social Affairs. If the work permit is not issued, it must be notified in writing and the reasons must be clearly stated;

3. For foreign workers as provided for in Point a Clause 1 Article 2 of this Decree, after the foreign worker is issued a work permit, the employer and the foreign worker must sign a labor contract in writing according to Vietnamese labor law regulations before the date the foreign worker is expected to start working for the employer. The content of the labor contract must not contradict the content recorded in the issued work permit;

Within five working days from the date of signing the labor contract, the employer must send a copy of the signed labor contract and a copy of the issued work permit to the Department of Labor, Invalids and Social Affairs that issued the work permit;

Section 4

REISSUANCE OF WORK PERMITS

Article 13. Cases for Reissuing Work Permits

1. The work permit is lost, damaged, or the information recorded on the work permit such as name, date of birth, nationality, passport number, place of work has changed;

2. The work permit has expired;

Article 14. Application Documents for Reissuing Work Permits

1. An application for reissuing a work permit by the employer in accordance with regulations of the Ministry of Labor - Invalids and Social Affairs.

2. Two color photos (size 4cm x 6cm, bareheaded, frontal view, clear face, both ears visible, no glasses, white background), taken no more than six months prior to the submission of the dossier;

3. Documents for foreign workers:

a) For the reissue of a work permit as provided for in Clause 1 Article 13 of this Decree, there must be a copy of the passport or other travel document valid as a substitute for a passport according to the law and the previously issued work permit (except in cases of loss);

b) For the reissue of a work permit as provided for in Clause 2 Article 13 of this Decree, there must be the previously issued work permit (except in cases of loss) still valid for at least five days but not exceeding fifteen days before its expiration; a health certificate as provided for in Clause 2 Article 10 of this Decree; a document from the Chairman of the Provincial People's Committee approving the use of foreign workers and one of the following documents:

- A document from the foreign side dispatching foreign workers to work in Vietnam;

- A contract or agreement signed between the Vietnamese party and the foreign party, which must include an agreement on the foreign worker working in Vietnam;

- A service provision contract signed between the Vietnamese party and the foreign party or a document proving that the foreign worker continues negotiating service provision in Vietnam;

- A certificate of a foreign non-governmental organization or international organization permitted to operate according to Vietnamese law;

- A document proving that the foreign worker continues working at a foreign non-governmental organization or international organization in Vietnam;

- A document from a service provider sending foreign workers to Vietnam to establish a commercial presence of the service provider.

- A document proving that the foreign worker participates in the activities of a foreign business that has established a commercial presence in Vietnam.

The documents specified in this Point shall be one original or one copy, if in a foreign language, they shall not require consular legalization but must be translated into Vietnamese and certified in accordance with Vietnamese law.

Article 15. Procedure for Reissuing Work Permits

1. In the case of reissuing a work permit as provided for in Clause 1, Article 13 of this Decree:

a) Within three days from the date when the foreign worker discovers the loss, damage, or change in the content recorded on the work permit, the foreign worker shall have the responsibility to report to the employer.

b) Within five working days from the date the employer receives the report from the foreign worker, the employer must submit the application dossier for reissuing the work permit to the Department of Labor - Invalids and Social Affairs that issued the work permit.

2. In the case of reissuing a work permit as provided for in Clause 2, Article 13 of this Decree:

At least five days but not more than fifteen days before the expiry date of the work permit, the employer must submit the application dossier for reissuing the work permit to the Department of Labor - Invalids and Social Affairs that issued the work permit.

3. Within three working days from the date of receiving the complete application dossier for reissuing the work permit, the Department of Labor - Invalids and Social Affairs shall reissue the work permit. If the work permit is not reissued, it shall notify in writing and specify the reasons.

4. For foreign workers as provided for in Point a, Clause 1, Article 2 of this Decree, after the foreign worker is reissued a work permit, the employer and the foreign worker must conclude a labor contract in writing in accordance with Vietnamese labor laws before the expected date of continuing to work for the employer. The content of the labor contract shall not contradict the content recorded in the reissued work permit.

Within five working days from the date of signing the labor contract, the employer must send a copy of the signed labor contract and a copy of the reissued work permit to the Department of Labor - Invalids and Social Affairs that reissued the work permit.

Article 16. Validity Period of Reissued Work Permit

1. The validity period of the reissued work permit in the case provided for in Clause 1, Article 13 of this Decree shall be equal to the validity period of the previously issued work permit minus the time the foreign worker has worked up to the date of applying for the reissued work permit.

2. The validity period of the reissued work permit in the case provided for in Clause 2, Article 13 of this Decree shall not exceed two years and shall be according to one of the following periods:

a) The term of the labor contract expected to be concluded;

b) The term of the dispatch of the foreign worker by the foreign side to work in Vietnam;

c) The term of the contract or agreement signed between the Vietnamese party and the foreign party;

d) The term of the service provision contract signed between the Vietnamese party and the foreign party;

đ) The term in the document of the service provider dispatching the foreign worker to Vietnam for negotiating service provision;

e) The term determined in the certificate of a foreign non-governmental organization or international organization permitted to operate under Vietnamese law;

g) The term in the document of the service provider dispatching the foreign worker to Vietnam to establish a commercial presence of the service provider;

h) The term in the document proving that the foreign worker participates in the activities of a foreign business that has established a commercial presence in Vietnam.

Section 5

REVOCATION OF WORK PERMITS AND DEPORTATION OF FOREIGN WORKERS

Article 17. Revocation of Work Permits

1. Cases where the work permit is revoked:

a) The content in the application dossier for issuing a work permit or reissuing a work permit is forged;

b) The work permit has expired;

c) The foreign worker or the employer does not comply with the content of the issued work permit;

d) Termination of the labor contract;

đ) The content of the labor contract does not match the content of the issued work permit;

e) The economic, trade, financial, banking, insurance, scientific and technological, cultural, sports, education, vocational training, or health contract or agreement has expired or been terminated;

g) The document from the foreign side notifying the termination of the dispatch of the foreign worker to work in Vietnam;

h) The employer ceases operations;

i) The foreign worker is imprisoned, dies, or is missing as declared by the Court;

k) An authorized agency or organization requests in writing the revocation of the work permit due to violations of Vietnamese law by the foreign worker.

2. The Department of Labor - Invalids and Social Affairs has the authority to revoke the issued work permit.

Article 18. Deportation of Foreign Workers

1. Foreign workers working in Vietnam without a work permit and not falling under the cases stipulated in Article 7 of this Decree shall be deported in accordance with Vietnamese law.

2. The Department of Labor, Invalids and Social Affairs shall request the police authority to deport foreign workers working in Vietnam without a work permit.

When organizations and individuals discover foreign workers working in Vietnam without a work permit, they shall report to the Department of Labor - Invalids and Social Affairs.

3. Within fifteen working days from the date of identifying a foreign worker working in Vietnam without a work permit, the Department of Labor - Invalids and Social Affairs shall request the police authority to deport the foreign worker.

4. The Ministry of Public Security shall be responsible for:

a) Guidance on the authority and procedures for deportation of foreign workers working in Vietnam without work permits;

b) Guiding the issuance of entry visas for foreign workers after being issued a work permit, reissuing a work permit, or submitting a complete application dossier for issuing a work permit or reissuing a work permit;

c) Taking the lead and coordinating with the Ministry of Labor - Invalids and Social Affairs to guide the procedures and formalities for sending a list of foreign workers who have been issued a work permit or reissued a work permit to the immigration management authority.

Chapter III

IMPLEMENTING PROVISIONS

Article 19. Effective Date

1. This Decree takes effect from November 1, 2013.

2. Decree No. 34/2008/NĐ-CP dated March 25, 2008, of the Government on the recruitment and management of foreigners working in Vietnam; and Decree No. 46/2011/NĐ-CP dated June 17, 2011, of the Government amending and supplementing certain articles of Decree No. 34/2008/NĐ-CP dated March 25, 2008, of the Government on the recruitment and management of foreigners working in Vietnam shall cease to be effective from the date this Decree takes effect.

3. For labor permits that remain valid up to the date this Decree takes effect, there is no need to obtain new labor permits.

Article 20. Responsibility for Implementation

1. The Minister of Labor, Invalids and Social Affairs, the Minister of Public Security, the Minister of Industry and Trade, and the Minister of Health shall provide guidance for the implementation of this Decree.

2. The Ministers, Heads of ministerial-level agencies, Heads of government-attached agencies, Chairpersons of provincial People's Committees under central cities shall be responsible for implementing this Decree./.