Decree No. 105/2003/NĐ-CP detailing and guiding the implementation of certain provisions of the Labor Code regarding the recruitment and management of foreign workers working in Vietnam

DECREE

Regulations detailing and guiding the implementation of certain provisions of the Labor Code

on the recruitment and management of foreign workers working in Vietnam

THE GOVERNMENT

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

Pursuant to the Labor Code on June 23, 1994; Law Amending and Supplementing Certain Articles of the Labor Code on April 2, 2002;

At the proposal of the Minister of Labor, Invalids and Social Affairs,

DECREE:

PART I

GENERAL PROVISIONS

Article 1. Enterprises, agencies, organizations in Vietnam as stipulated in Article 132 of the Labor Code that are established and operate under Vietnamese law may recruit foreign workers:

1. Enterprises belonging to various economic sectors; including types of enterprises operating under the Law on State-Owned Enterprises, the Enterprise Law, and the Law on Foreign Investment in Vietnam.

2. Contractors (main contractors, sub-contractors) which are economic organizations with legal personality of Vietnam or foreign countries undertaking contracts.

3. Business and service organizations under administrative state agencies, armed forces, people's mass organizations, political organizations, socio-political organizations, social organizations.

4. Representative offices and branches of foreign companies; Representative offices of organizations: economic, commercial, financial, banking, insurance, scientific and technological, cultural, sports, educational, health.

7. Offices of foreign or international projects in Vietnam.

6. Health facilities, cultural, educational, training, sports institutions.

9. Legal practice organizations in Vietnam as prescribed by Vietnamese laws.

8. Branches of foreign law firms permitted to operate in Vietnam.

9. Cooperatives.

The enterprises, agencies, and organizations mentioned above shall collectively be referred to as employers.

Article 2. Foreign workers working for employers as defined in Article 1 of this Decree are those who do not hold Vietnamese nationality according to the Law on Vietnamese Nationality.

Chapter II

RECRUITMENT AND MANAGEMENT OF FOREIGN WORKERS

WORKING IN VIETNAM

Article 3.

1. Employers as specified in Clause 1, Article 1 of this Decree may recruit foreign workers up to a ratio of no more than 3% of the current number of workers in the enterprise, but not exceeding 50 persons, and at least recruiting one person.

2. For employers as specified in Clauses 2, 3, 4, 5, 6, 7, 8, and 9 of Article 1 of this Decree, there is no prescribed ratio for recruiting foreign workers, but they must obtain approval from the Chairman of the People's Committee of the province or centrally-administered city if they wish to recruit foreign workers.

Article 4. Employers may recruit foreign workers when such foreign workers meet the following conditions:

1. At least 18 years old.

2. Possess good health suitable for job requirements.

3. Have high technical expertise (including engineers or individuals with equivalent qualifications to engineers; artisans in traditional trades), extensive experience in their profession, production management, or managerial positions that Vietnamese workers cannot meet.

4. Have no criminal record involving offenses against national security as provided by Vietnamese law; have no other criminal records; are not currently being pursued for criminal responsibility, serving a sentence, or have not had their criminal record expunged according to Vietnamese and foreign laws.

5. Hold a work permit for foreign workers working in Vietnam for three months or longer, issued by competent Vietnamese authorities, except in cases where a work permit is not required as stipulated in Clause 1, Article 6 of this Decree.

Article 5. Application documents and procedures for recruiting foreign workers.

1. Application for employment: foreign workers submit two sets of application documents to the employer, one set managed by the employer and another set used by the employer to apply for a work permit. Each set includes:

a) Employment application form;

b) Criminal record certificate issued by the competent authority of the country where the worker resides. If the foreigner has resided in Vietnam for six months or more, in addition to the criminal record certificate issued by the foreign authority, a criminal record certificate issued by the Department of Justice of Vietnam where the foreigner resides must also be provided;

c) A self-written resume of the foreigner according to the model prescribed by the Ministry of Labor, Invalids and Social Affairs and affixed with a photograph;

d) Health certificate issued abroad. In case the foreigner is residing in Vietnam, the health certificate must comply with regulations of the Vietnamese Ministry of Health;

đ) Copies of certificates regarding the foreigner’s professional qualifications and skills, including: university degree or equivalent, or skill certification of the foreign worker issued by the competent authority of the country concerned;

For foreign workers who are artisans in traditional trades or have extensive experience in their profession, production management, or managerial positions without certificates, a review of their professional qualifications, skills, and management level must be provided by the competent authority of the country where they hold nationality;

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

Documents in the application as stated above issued by foreign authorities or certified must be legalized according to Vietnamese law and translated into Vietnamese; translations and copies must be notarized according to Vietnamese law.

2. Procedures for recruiting foreign workers:

a) For employers:

Employers must publish in central or local newspapers three consecutive issues about their need to recruit workers and fully inform all job requirements and rights of both workers and employers during recruitment, while working, and upon termination of employment.

After receiving complete application documents from foreign workers as prescribed by this Decree, employers must process applications for work permits for foreign workers to work in Vietnam according to the provisions of this Decree.

b) For foreign workers:

Foreigners wishing to work in Vietnam must thoroughly study all Vietnamese legal regulations provided by employers; simultaneously, prepare necessary documents and strictly follow the provisions of this Decree.

Foreigners wishing to work in Vietnam must submit the application for employment as stipulated in Clause 1 of this Article to the employer.

c) When holding a work permit, the worker and the employer must enter into a written labor contract (except for foreign workers sent to Vietnam by their home country to work), the employer is responsible for sending a copy of the signed labor contract to the authority that issued the work permit for that foreign worker. The content of the job in the labor contract shall not be contrary to the job content stated in the issued work permit.

Article 6. Issuing work permits.

1. Foreign workers working for enterprises, agencies, organizations in Vietnam must have a work permit, except for the following categories:

Foreign workers entering Vietnam to work for less than three (3) months or to handle emergency situations (emergency situations are defined as technical or technological issues arising unexpectedly and affecting or potentially affecting production and business operations which cannot be resolved by Vietnamese experts and foreign experts currently in Vietnam).

Foreign individuals who are members of the Board of Directors, General Director, Deputy General Director, Director, Deputy Director of enterprises established under Vietnamese law and having legal personality.

Foreign individuals who are Heads of Representative Offices, Branch Managers in Vietnam.

Foreign lawyers who have been granted a license to practice law in Vietnam by the Ministry of Justice according to Vietnamese law.

2. Provincial Departments of Labor, Invalids and Social Affairs directly under the central government issue work permits for foreign workers according to the model prescribed by the Ministry of Labor, Invalids and Social Affairs.

3. Documents required for applying for a work permit include:

A request for issuance of a work permit from the employer according to the model prescribed by the Ministry of Labor, Invalids and Social Affairs.

Application documents of foreign workers seeking employment (as stipulated in Clause 1, Article 5 of this Decree).

4. Validity period of the work permit: the validity period of the work permit issued shall be based on the duration of the labor contract (for those who enter into a labor contract) or the decision of the foreign side sending the worker to Vietnam, but not exceeding thirty-six (36) months.

5. For the categories of foreign workers exempted from obtaining a work permit as stipulated in Clause 1 of this Article, the employer shall report to the provincial Department of Labor, Invalids and Social Affairs (where the enterprise, agency, organization has its main office) a list of foreign individuals, including: name, age, nationality, passport number, start date and end date of work, job position of the foreign individual. Report seven (7) days before the foreign worker starts working.

For foreign individuals entering Vietnam to perform various types of contracts (excluding labor contracts) between enterprises, agencies, organizations in Vietnam and those abroad, the enterprises, agencies, organizations in Vietnam shall also report as they would for foreign individuals working for enterprises, agencies, organizations in Vietnam with a work period of less than three (3) months.

Article 7. Extension of work permits.

1. Extension of work permits in cases where the employer has plans and is training Vietnamese workers to replace the jobs currently held by foreign workers, but the Vietnamese workers have not yet replaced them. Work permits will not be extended for foreign workers who have been disciplined according to points b and c, Clause 1, Article 84 of the amended Labor Code.

2. Documents required for extending a work permit:

a) The employer submits an application for extension of the work permit according to the regulations of the Ministry of Labor, Invalids and Social Affairs. It must clearly state the reasons why Vietnamese workers have not been trained to replace them, the names of Vietnamese workers being trained, training costs, training time, and location to replace the foreign worker.

b) A copy of the labor contract or a document from the foreign side allowing the foreign worker to continue working in Vietnam (with confirmation from the employer).

c) The previously issued work permit.

3. Duration of the extension of the work permit:

The duration of the extension of the work permit depends on the additional working time of the foreign worker for the employer as determined in the labor contract or the document from the foreign side allowing the foreign worker to continue working in Vietnam, with a maximum extension period of thirty-six (36) months. In cases where the first extension period has expired and Vietnamese workers have still not been trained to replace them, the work permit may be further extended if approved by the Chairman of the People's Committee of the province or centrally administered city where the enterprise, agency, or organization has its main office.

Article 8. Reissuing a work permit in case it is lost or damaged:

1. The foreign worker must submit an application for reissuing a work permit and explain the reason for loss or damage, with confirmation from the employer sent to the Department of Labor, Invalids and Social Affairs that issued the work permit, along with the damaged work permit.

2. The reissued work permit for the foreign worker shall be identical to the original work permit issued.

Article 9. A work permit becomes invalid in the following cases:

1. The work permit expires.

2. The labor contract terminates prematurely.

3. The job content in the labor contract does not match the job content requested for the work permit.

4. The work permit is revoked by a competent state agency due to violation of Vietnamese law.

5. The enterprise, agency, or organization ceases operations.

6. The foreign worker is sentenced to imprisonment, dies, or goes missing as declared by the Court.

Article 10. Using work permits.

1. Foreign workers holding a valid work permit must submit the work permit to the employer within three (3) days before the work permit expires. The employer is responsible for receiving the work permit and must return it to the issuing authority within seven (7) days from the date of receipt.

2. Foreign workers must present their work permit upon request by authorized state agencies.

Chapter III

INSPECTION, REWARD AND VIOLATION HANDLING

Article 11. Ministries, ministerial-level agencies, government agencies, and People's Committees at all levels shall be responsible for inspecting and supervising the implementation of the Labor Code and this Decree.

Article 12. Enterprises, agencies, organizations, and individuals who have outstanding achievements in implementing the Labor Code and this Decree shall be rewarded according to Vietnamese laws.

Article 13. Enterprises, agencies, organizations, and individuals who violate the provisions of the Labor Code, this Decree, and other related laws shall be subject to administrative penalties or criminal prosecution depending on the nature and severity of the violation, as stipulated by Vietnamese laws.

Article 14. NForeign workers currently working in enterprises, agencies, and organizations in Vietnam without a work permit must apply for a work permit in accordance with Article 6 of this Decree. Six (6) months after the effective date of this Decree, if foreign workers still do not have a work permit, the Department of Labor, Invalids and Social Affairs shall request the Minister of Public Security to issue a decision to deport them from Vietnam in accordance with the law.

Chapter IV

IMPLEMENTING PROVISIONS

Article 15. The Ministry of Labor - Invalids and Social Affairs and other relevant ministries and sectors within their respective functions, tasks, and authorities shall be responsible for guiding the implementation of this Decree.

Article 16. The Ministry of Finance shall be responsible for guiding the fee collection, payment, management, and use of fees for issuing work permits for foreigners working in Vietnam.

Article 17. Responsibilities of the Department of Labor, Invalids and Social Affairs:

1. Accepting and storing applications for work permits, applications for extension of work permits, and applications for replacement of work permits.

2. Within fifteen (15) days from the date of receiving complete and valid applications for work permits, extensions of work permits, and replacements of work permits submitted by employers, the provincial Departments of Labor, Invalids and Social Affairs under the central cities must issue work permits, extend work permits, and replace work permits. In cases where work permits are not issued, extended, or replaced, a written response must be provided with clear reasons stated.

3. Monitoring, summarizing, and reporting on the situation of foreign workers employed in enterprises, agencies, and organizations within their jurisdiction.

4. Inspecting and supervising the implementation of the Labor Code and this Decree.

5. Recovering expired work permits.

Article 18. Responsibilities of the employer:

1. Complying with Vietnamese labor laws and other relevant Vietnamese laws.

2. Processing applications for work permits, extensions of work permits, and replacements of work permits for foreign workers and paying the work permit issuance fees as prescribed by the Ministry of Finance.

3. Fully performing labor contracts concluded with foreign workers.

4. Receiving expired work permits from foreign workers and returning them to the issuing authority.

5. Managing application files for employment of foreign workers and supplementing related documents concerning foreign workers.

6. Managing foreign workers employed in enterprises, agencies, and organizations.

7. Reporting on the use of foreign workers in accordance with regulations set by the Ministry of Labor, Invalids and Social Affairs.

Article 19. This Decree shall take effect fifteen (15) days from the date of publication in the Official Gazette and shall replace Government Decrees No. 58/CP dated October 3, 1996, and No. 169/1999/NĐ-CP dated December 3, 1999, regarding the issuance of work permits for foreigners working in enterprises and organizations in Vietnam.

For foreign workers who have been issued work permits that remain valid until the effective date of this Decree, such work permits will continue to be valid and there is no need to obtain new work permits.

Article 20. The Ministers, Heads of ministerial-level agencies, Heads of governmental agencies, Chairpersons of provincial People's Committees under the central government shall be responsible for implementing this Decree./.