Decree No. 11/2016/ND-CP detailing the implementation of certain provisions of the Labor Code regarding foreign workers working in Vietnam.

DECREE

Detailed regulations on certain provisions of the Labor Code regarding foreign workers working in Vietnam

concerning foreign labor working in Vietnam

                     

||| Pursuant to the Law on Organization of the Government dated June 19, 2015;

Based on the Labor Code dated June 18, 2012;

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

The Government promulgates this Decree providing detailed regulations on certain provisions of the Labor Code regarding foreign labor working in Vietnam.

PART I
GENERAL PROVISIONS

Article 1. Scope of Regulation

This Decree provides detailed regulations on the Labor Code concerning the issuance of work permits for foreign citizens entering Vietnam to work; the expulsion of foreign citizens working in Vietnam without work permits.

Article 2. Applicability

a) Performing labor contracts;

b) Internal transfer within enterprises;

c) Implementing economic, trade, financial, banking, insurance, scientific and technological, cultural, sports, educational, vocational education, and health-related contracts or agreements;

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) Domestic or foreign contractors participating in bids and performing contracts;

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

d) State agencies, political organizations, political-social organizations, social-professional organizations, social organizations;

đ) Non-governmental organizations, international organizations operating in Vietnam;

e) Public institutions established in accordance with the law;

g) Project offices of foreign organizations or international organizations in Vietnam;

h) Management offices of foreign investors in joint venture contracts or foreign contractors registered to operate in accordance with the law;

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. Foreign workers who are internal transfers within enterprises, volunteers, specialists, managers, executives, and technical workers

1. Foreign workers transferring internally within enterprises are managers, executives, specialists, and technical workers of a foreign enterprise that has established a commercial presence in Vietnam, temporarily transferring within the enterprise to a commercial presence in Vietnam and having been employed by the foreign enterprise for at least 12 months prior.

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

3. Specialists are foreign workers in one of the following cases:

a) Having a document confirming their status as a specialist issued by an agency, organization, or enterprise abroad;

b) Holding a bachelor's degree or higher and having at least three years of experience working in a relevant field corresponding to the position they are expected to work in Vietnam; special cases are decided by the Prime Minister.

4. Managers, executives are foreign workers in one of the following cases:

a) A manager is someone managing an enterprise as stipulated in Clause 18, Article 4 of the Enterprise Law or the head or deputy of the head of an agency or organization;

b) An executive is someone heading and directly managing a unit subordinate to an agency, organization, or enterprise.

5. Technical workers are those trained in a technical field or another field for at least one year and have worked for at least three years in the field they were trained in.

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

Section 1
DETERMINATION OF JOBS FOR FOREIGN WORKERS

1. Determination of job requirements for foreign workers

a) Employers (excluding contractors) are responsible for determining the need for 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/city directly under the Central Government (hereinafter referred to as the Provincial People's Committee) where the foreign workers are expected to work. If there is a change in the need for foreign workers during implementation, the employer must report to the Chairman of the Provincial People's Committee.

b) In cases of foreign workers specified in Clauses 4, 5, and 8 of Article 172 of the Labor Code and Points e and h of Clause 2 of Article 7 of this Decree, employers are not required to determine the need for foreign workers.

2. The Chairman of the Provincial People's Committee issues a document approving the employer's use of foreign workers for specific positions.

Article 5. Employment of Foreign Workers by Contractors

1. Before recruiting foreign workers, contractors are responsible for declaring the number, qualifications, professional expertise, and experience of foreign workers needed to implement the tender in Vietnam and proposing the recruitment of Vietnamese workers for positions intended for foreign workers (accompanied by confirmation from the project owner) to the Chairman of the Provincial People's Committee where the contractor implements the tender.

In case the contractor wishes to adjust or supplement the number of workers declared, the project owner must confirm the adjustment plan for the contractor's supplementary labor needs.

2. The Chairman of the Provincial People's Committee shall direct 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 request to recruit 500 or more Vietnamese workers, and within one month from the date of receiving a request to recruit fewer than 500 Vietnamese workers, if no introduction or supply of Vietnamese workers is made to the contractor, the Chairman of the Provincial People's Committee shall consider and decide on the recruitment of foreign workers for positions that cannot be filled by Vietnamese workers.

3. The project owner is responsible for supervising and requiring the contractor to comply with the declared content regarding the use of Vietnamese workers and foreign workers; guiding, urging, and inspecting the contractor to implement regulations on the recruitment and use of foreign workers according to the provisions of the law; monitoring and managing foreign workers to ensure compliance with Vietnamese laws; quarterly reporting to the Department of Labor - Invalids and Social Affairs on the situation of recruitment, use, and management of foreign workers by contractors as stipulated by the Ministry of Labor - Invalids and Social Affairs.

4. Quarterly, the Department of Labor - Invalids and Social Affairs shall cooperate with the police and other relevant agencies to inspect the implementation of Vietnamese laws by foreign workers working on contracts awarded to contractors in their jurisdiction.

Article 6. Report on the use of foreign workers

1. Annually or at any time upon request, the provincial People's Committee shall report to the Ministry of Labor - Invalids and Social Affairs on the demand for using foreign workers, approval of the demand for using foreign workers, and the management situation of foreign workers working in its jurisdiction.

2. Quarterly, every six months, and annually, the Department of Labor - Invalids and Social Affairs shall report on foreign workers working in its jurisdiction according to the guidelines of the Ministry of Labor - Invalids and Social Affairs.

Section 2
FOREIGN WORKERS NOT ELIGIBLE FOR WORK PERMITS

Article 7. Cases where foreign workers are not eligible for work permits

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

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

b) Entering Vietnam to provide professional and technical consulting services or perform other tasks serving research, construction, evaluation, monitoring, and implementing programs and projects funded by official development assistance (ODA) as provided for or agreed upon 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) Being sent by foreign agencies or organizations to teach or conduct research at international schools under the jurisdiction of foreign diplomatic missions or international organizations in Vietnam, or being confirmed by the Ministry of Education and Training to teach or conduct research at educational and training institutions in Vietnam;

đ) Volunteer workers recognized by foreign diplomatic missions or international organizations in Vietnam;

e) Entering Vietnam to work in specialist, managerial, executive, or technical positions for less than 30 days, with a cumulative total not exceeding 90 days in one year;

g) Entering Vietnam to implement international agreements concluded by central-level agencies, provincial-level agencies, or organizations in accordance with the law;

h) Students or trainees studying at educational institutions abroad who have internship agreements with agencies, organizations, or enterprises in Vietnam;

i) Family members of staff of foreign representative offices in Vietnam who are allowed to work after obtaining permission from the Ministry of Foreign Affairs, except where international treaties to which the Socialist Republic of Vietnam is a party provide otherwise;

k) Holding a diplomatic passport to work for state agencies, political organizations, or political-social organizations;

Article 8. Confirmation that foreign workers are not subject to labor permit issuance

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

The confirmation period for foreign workers who are not subject to labor permit issuance shall not exceed 02 years and shall be in accordance with the duration of one of the cases prescribed in Article 11 of this Decree.

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;

c) Documents to prove that the foreign worker is not subject to labor permit issuance;

d) Documents proving that the foreign worker is not subject to labor permit issuance, including one copy attached with the original for verification or one certified copy, if from abroad, then exempted from consular legalization but must be translated into Vietnamese and certified according to Vietnamese law.

4. Within 03 working days from the date of receiving the complete application dossier for confirmation that the foreign worker is not subject to labor permit issuance, the Department of Labor, Invalids and Social Affairs shall issue a confirmation letter to the employer. In case of non-confirmation, a reply letter stating the reasons shall 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.

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 or medical examination certificate issued by a competent health organization of a foreign country or Vietnam within 12 months from the date of issuing the health conclusion to the date of submitting the dossier.

3. Criminal record sheet or a document confirming that the foreign worker is not a person convicted of a crime or pursued for criminal responsibility issued by a foreign country. If the foreign worker has resided in Vietnam, only a criminal record sheet issued by Vietnam is required.

The criminal record sheet or document confirming that the foreign worker is not a person convicted of a crime or pursued for criminal responsibility shall not exceed 06 months from the date of issuance to the date of submission of the dossier.

4. Document proving that the individual is a manager, executive director, specialist, or technical worker.

For certain occupations and jobs, the document proving the professional and technical qualifications of the foreign worker may be replaced by one of the following documents:

a) Certificate recognizing the individual as a master craftsman in traditional trades issued by a competent authority of a foreign country;

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. Two color photographs (size 4cm x 6cm, white background, frontal view without hat or colored glasses), taken no more than 06 months prior to the date of submission of the dossier.

7. Related documents concerning the foreign worker

a) For foreign workers as stipulated in Point b, Clause 1, Article 2 of this Decree, there must be a document from a foreign enterprise dispatching the worker 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 stipulated in Point c, Clause 1, Article 2 of this Decree, there must be a contract or agreement signed between the Vietnamese and foreign parties, which must include an agreement on the foreign worker's employment in Vietnam;

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

d) For foreign workers as stipulated in Point đ, Clause 1, Article 2 of this Decree, there must be a document from the service provider dispatching the foreign worker to Vietnam for service negotiation;

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

e) For foreign workers as stipulated in Point h, Clause 1, Article 2 of this Decree, there must be a document from the service provider dispatching the foreign worker 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 participating in the activities of a foreign business that has established a commercial presence in Vietnam, they must have a document proving that the foreign worker is involved in the activities of that foreign business.

8. Application dossier for work permit for certain special cases

a) For foreign workers who have been granted a work permit which is still valid and working for another employer at the same position specified in the work permit in accordance with the law, the application dossier for a work permit shall include the documents stipulated in Clauses 1, 5, 6, and 7 of this Article and the work permit or a certified copy thereof;

b) For foreign workers who have been granted a work permit which is still valid but working in a different position from that specified in the work permit in accordance with the law without changing employers, the application dossier for a work permit shall include the documents stipulated in Clauses 1, 4, 5, 6, and 7 of this Article and the work permit or a certified copy thereof;

c) For foreign workers who have been granted a work permit but it has expired according to Article 174 of the Labor Code and wish to continue working in the same position specified in the work permit in accordance with the law, the application dossier for a work permit shall include the documents stipulated in Clauses 1, 2, 3, 5, 6, and 7 of this Article and a document confirming the recovery of the work permit;

d) In the case where foreign workers referred to in Points a, b, and c of this Clause have been granted a work permit in accordance with Decree No. 102/2013/NĐ-CP dated September 5, 2013 of the Government detailing the implementation of some provisions of the Labor Code on foreign labor working in Vietnam, they must have a document proving compliance with the requirements stipulated in Clause 3 or Clause 4 or Clause 5 of Article 3 of this Decree.

9. Legalization of consular documents, certification of documents

a) The documents stipulated in Clauses 2, 3, and 4 of this Article shall be one copy accompanied by the original for comparison or one certified copy.

If these documents are from abroad, they must be legalized by consular legalization, except in cases where consular legalization is exempted under international treaties to which both the Socialist Republic of Vietnam and the relevant foreign country are parties, or based on the principle of reciprocity, or as prescribed by law; they must be translated into Vietnamese and certified in accordance with Vietnamese law.

b) The documents stipulated in Clause 7 of this Article shall be one copy accompanied by the original for comparison or one certified copy; if from abroad, consular legalization is exempted, but they 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 be the duration of one of the following cases but not exceeding two years:

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

2. Duration for which the foreign party sends foreign workers to work in Vietnam;

3. Duration of the contract or agreement signed between the Vietnamese and foreign partners;

4. Duration of the service provision contract or agreement signed between the Vietnamese and foreign partners;

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

6. Duration determined in the certificate of a foreign non-governmental organization or international organization permitted to operate in accordance with 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 15 working days before the date when foreign workers are expected to start working for their employers, such employers must submit applications for work permits to the Department of Labor - Invalids and Social Affairs at the location where the foreign workers are expected to work.

3. For foreign workers as stipulated in Point a Clause 1 Article 2 of this Decree, after foreign workers have been granted work permits, the employer and the foreign worker must enter into a written labor contract in accordance with Vietnamese labor laws prior to the commencement of work for the employer.

Within five working days from the date of signing the labor contract, the employer must send a copy of the signed labor contract 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. Work permits still within validity period that are lost, damaged, or whose contents need to be changed, except for the cases specified in Clause 8 Article 10 of this Decree.

2. Work permits still valid for at least five but not more than forty-five days.

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 photographs (dimensions 4cm x 6cm, white background, frontal view, bare head, no tinted glasses), taken no more than six months prior to the submission of the application.

3. The previously issued work permit.

a) In cases where the work permit is lost as provided in Clause 1 Article 13 of this Decree, confirmation from a Vietnamese police station or an authorized foreign agency as prescribed by law is required.

b) In cases where the contents of the work permit need to be changed as provided in Clause 1 Article 13 of this Decree, supporting documents are required.

c) In cases where the work permit still has a validity period of at least five but not more than forty-five days as provided in Clause 2 Article 13 of this Decree, a health certificate or medical examination report as prescribed in Clause 2 Article 10 of this Decree and one of the documents specified in Clause 7 Article 10 of this Decree are required.

d) In cases where foreign workers have been granted work permits in accordance with Government Decree No. 102/2013/NĐ-CP dated September 5, 2013 detailing certain provisions of the Labor Code regarding foreign workers working in Vietnam, proof of compliance with the requirements set out in Clause 3 or Clause 4 or Clause 5 Article 3 of this Decree is required.

4. The documents specified in Clause 3 of this Article must be accompanied by either an original copy for verification or a certified copy, if from a foreign source, then legalization by a consul is exempted, but they must be translated into Vietnamese and certified in accordance with Vietnamese law.

Article 15. Procedure for Reissuing Work Permits

1. In cases where a work permit is reissued in accordance with Clause 2, Article 13 of this Decree, at least five but not more than forty-five 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 original work permit.

2. 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, a written response stating the reasons shall be provided.

3. For foreign workers as stipulated in Point a, Clause 1, Article 2 of this Decree, after the foreign worker has been reissued a work permit, the employer and the foreign worker must enter into a written labor contract in accordance with Vietnamese labor laws prior to the date on which they plan to continue working for the employer.

Within five working days from the date of signing the labor contract, the employer must send a copy of the signed labor contract 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 a reissued work permit in accordance with 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 a reissued work permit in accordance with Clause 2, Article 13 of this Decree shall be equivalent to the validity period of one of the cases specified in Article 11 of this Decree, but not exceeding two years.

Section 5
REVOCATION OF WORK PERMITS AND DEPORTATION OF FOREIGN WORKERS

1. A work permit becomes invalid according to Clauses 1, 2, 3, 4, 5, 7, and 8, Article 174 of the Labor Code.

2. A work permit may be revoked if the employer or the foreign worker does not comply with the provisions of this Decree.

3. Procedure for Revoking Work Permits

a) In the case stipulated in Clause 1 of this Article, the employer shall revoke the work permit of the foreign worker and return it to the Department of Labor, Invalids and Social Affairs that issued the work permit;

b) In the case stipulated in Clause 2 of this Article, the Director of the Department of Labor, Invalids and Social Affairs that issued the work permit shall issue a decision to revoke the work permit and notify the employer to revoke the work permit of the foreign worker and return it to the Department of Labor, Invalids and Social Affairs;

c) The Department of Labor, Invalids and Social Affairs shall issue a confirmation letter regarding the revocation of the work permit and send it to the employer.

4. The Ministry of Labor, Invalids and Social Affairs shall provide detailed procedures for revoking work permits.

Article 18. Deportation of Foreign Workers

1. Foreign workers working in Vietnam without a work permit or without a confirmation document exempting them from obtaining a work permit under this Decree (hereinafter referred to as foreign workers working in Vietnam without a work permit) 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.

In cases where 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 where the worker is employed.

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

Chapter III
IMPLEMENTING PROVISIONS

Article 19. Effective Date

1. This Decree takes effect from April 1, 2016.

2. Decree No. 102/2013/NĐ-CP dated September 5, 2013 of the Government detailing certain provisions of the Labor Code concerning foreign workers working in Vietnam; Point a, Item 4, Resolution No. 47/NQ-CP dated July 8, 2014 of the Government ceases to be effective from the date this Decree takes effect.

3. Transitional Provisions

a) Regarding documents including approval documents for using foreign workers, confirmation documents exempting foreign workers from obtaining work permits, and work permits issued in accordance with the provisions of Decree No. 102/2013/NĐ-CP dated September 5, 2013 of the Government detailing certain provisions of the Labor Code concerning foreign workers working in Vietnam, these documents shall continue to be used until their expiration date.

b) In cases where employers have submitted reports explaining the need to use foreign workers; applications for issuing, reissuing work permits or confirming foreign workers as not requiring work permits before the effective date of this Decree, they shall be processed in accordance with the provisions of Decree No. 102/2013/NĐ-CP dated September 5, 2013 of the Government detailing certain provisions of the Labor Code concerning foreign workers working in Vietnam.

Article 20. Responsibility for Implementation

1. The Ministry of Labor, Invalids and Social Affairs shall be responsible for:

a) Guidance on implementing this Decree;

c) Directing, urging, inspecting, and supervising the implementation of legal provisions concerning foreign workers working in Vietnam.

2. The Ministry of Public Security is responsible for:

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

b) Guidance on issuing visas for foreign workers related to the issuance, reissuance of work permits; confirming foreign workers as not requiring work permits;

c) Quarterly provide information on foreign workers who have been granted visas to work to the Ministry of Labor - Invalids and Social Affairs.

3. The Ministry of Finance shall be responsible for guiding fees for issuing, reissuing labor permits, and confirming that certain cases are not subject to labor permit issuance as specified in Point b Clause 1 of this Article.

4. The Ministry of Industry and Trade shall be responsible for guiding the basis and procedures for determining foreign workers transferring within enterprises within the scope of 11 service sectors listed in Vietnam's service commitments to the World Trade Organization.

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