Circular No. 24/2005/TT-BLDTBXH Amending and Supplementing Certain Points of Circular No. 04/2004/TT-BLDTBXH dated March 10, 2004 of 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 workers working in Vietnam.

CIRCULAR

Amending and supplementing some points of Circular No. 04/2004/TT-BLDTBXH dated March 10, 2004

of 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 workers working in Vietnam

Pursuant to Decree No. 93/2005/NĐ-CP dated July 13, 2005 of the Government amending and supplementing some 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 workers working in Vietnam, the Ministry of Labor, Invalids, and Social Affairs amends and supplements some points of Circular No. 04/2004/TT-BLDTBXH dated March 10, 2004 of 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 on the recruitment and management of foreign workers working in Vietnam as follows:

1. Clause 1 Section I is amended and supplemented as follows:

"1. Enterprises, agencies, organizations as provided for in Article 1 of Decree No. 105/2003/NĐ-CP which has been amended and supplemented (hereinafter referred to collectively as employers) include:

a) Enterprises operating under the Law on State-Owned Enterprises, the Enterprise Law, and the Law on Foreign Investment in Vietnam;

b) Foreign contractors (main contractors, sub-contractors) undertaking contracts in Vietnam;

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

d) Social occupational organizations;

đ) State-run units;

e) Health, cultural, educational, training, and sports facilities (including those established under the Enterprise Law, the Law on State-Owned Enterprises, and the Law on Foreign Investment in Vietnam), including:

- Sports facilities established and operated according to the laws on physical culture and sports;

- Educational, training, and vocational training institutions established and operated according to the laws on education and training and labor laws;

- Hospitals, institutes with hospital beds, medical centers, health stations, centers for preventing social diseases, preventive health centers, rehabilitation centers, and other healthcare facilities established and operated according to Vietnamese laws;

- Cultural facilities established and operated according to Vietnamese laws.

g) Offices of foreign or international projects in Vietnam;

h) Management offices of foreign joint venture parties under joint venture contracts in Vietnam;

i) Legal service organizations in Vietnam according to Vietnamese laws;

k) Cooperatives established and operated according to the Law on Cooperatives."

2. Clause 1 and Clause 2 Section II are amended and supplemented as follows:

"1. Employers are allowed to recruit foreign workers according to the provisions of Article 3 of Decree No. 105/2003/NĐ-CP which has been amended and supplemented, specifically:

a) The employers mentioned in paragraph a of Clause 1 Section I of this Circular shall recruit foreign workers as follows:

- The number of foreign workers recruited is calculated according to the formula:

L_NN = L_DN x 0,03

Where:

+ L_NN where L_NN is the number of foreign workers that the enterprise can recruit according to the regulations, including foreign nationals hired by the employer under employment contracts and foreign nationals sent to Vietnam by their home countries to work at the enterprise. The result L

must be at least one person.

+ L_DN Foreign nationals who are members of the Board of Directors, Members of the Board of Members (for limited liability companies established under the Enterprise Law), and foreign nationals coming to Vietnam to work at the enterprise to perform various types of contracts (except employment contracts) as stipulated in Clause 5, Article 6 of Decree No. 105/2003/NĐ-CP which has been amended and supplemented are not included in the aforementioned number of foreign workers of the enterprise.

is the total number of employees currently employed by the enterprise (both Vietnamese and foreign workers) at the time of recruiting foreign workers, including: current employees working at the enterprise; employees of the enterprise sent abroad for work or training; employees on leave under social insurance benefits (illness, maternity, work-related accidents, and occupational diseases); employees being trained by the enterprise; employees on leave due to temporary suspension of employment contracts._NN If the result L

Example 1: is a decimal, it should be rounded up to the nearest higher whole number.

L_NN Enterprise A has 76 employees at the time of recruiting foreign workers, then the number of foreign workers that Enterprise A can recruit according to the regulations is:

= 76 x 0,03 = 2,28

Example 2: Therefore, Enterprise A can recruit 03 foreign workers according to the regulations.

L_NN Enterprise B has 1767 employees at the time of recruiting foreign workers, then the number of foreign workers that Enterprise B can recruit according to the regulations is:

= 1767 x 0,03 = 53,01

Therefore, Enterprise B can recruit 54 foreign workers.

- For enterprises operating in special sectors using few workers or at the initial stage of investment and production that are not yet stable and have a need to recruit foreign workers for positions where Vietnamese workers cannot meet the requirements exceeding the 3% ratio, they shall submit a request for approval in writing to the Chairman of the People's Committee of the province or centrally administered city where the enterprise's headquarters is located based on the actual needs of each enterprise. The application for additional foreign workers from the employer shall be made according to Form No. 1 attached to this Circular.

- For enterprises that had recruited foreign workers before the effective date of Decree No. 105/2003/ND-CP, the employer may continue to use the recruited foreign workers until the expiration of the labor contract term or the duration specified in the work permit already issued. In cases where the enterprise needs to recruit additional foreign workers exceeding the prescribed ratio after the expiration of the aforementioned recruitment period, such recruitment shall be carried out in accordance with the provisions of this Circular.

b) Employers as stipulated in items b, c, d, đ, e, g, h, i, k of Point 1, Section I of this Circular must submit a request for recruitment of foreign workers in the form number 2 attached to this Circular to the People's Committee of the province or centrally administered city where the main office is located prior to recruiting foreign workers. Only after receiving approval from the Chairman of the People's Committee of the province or centrally administered city will they be allowed to recruit foreign workers.

2. Foreign individuals with high technical expertise, extensive experience, and seniority in their professions, production management, business operations, or managerial tasks that Vietnamese workers cannot meet as provided for in Clause 3, Article 4 of Decree No. 105/2003/ND-CP (amended and supplemented) shall be regulated as follows:

a) Foreign individuals with high technical expertise include engineers and those with equivalent qualifications at the bachelor's, master's, or doctoral level, which are relevant to the profession and job requirements of the employer.

b) Foreign individuals recognized as artisans in traditional trades must have a written confirmation from the competent authority of the country of their nationality.

c) Foreign individuals with extensive experience and seniority in their professions, production management, business operations, or managerial tasks that Vietnamese workers cannot meet are those who have at least five years of experience in such work, capable of fulfilling the job requirements of the employer, and must have a written confirmation from the competent authority of the foreign country.

3. Point 5, Section III is amended and supplemented as follows:

"5. For subjects not required to obtain a work permit as stipulated in Clause 1, Article 6 of Decree No. 105/2003/ND-CP (amended and supplemented), the employer shall be responsible for reporting a list of such individuals to the Department of Labor - Invalids and Social Affairs of the province where the enterprise's main office is located in the form number 10 attached to this Circular.

For foreign individuals entering Vietnam to implement contracts (excluding labor contracts) between enterprises, agencies, and organizations in Vietnam and those abroad, they are not required to apply for a work permit but must satisfy the conditions set forth in Clauses 1, 2, 3, and 4 of Article 4 of Decree No. 105/2003/ND-CP (amended and supplemented). Enterprises, agencies, and organizations in Vietnam shall report according to form number 10 attached to this Circular and attach the relevant documents of the foreign individual as stipulated in item b, c, d, đ of Clause 1, Article 5 of Decree No. 105/2003/ND-CP (amended and supplemented).

4. Item d of Point 2, Section IV is added as follows:

"d) When receiving applications for work permits, extensions of work permits, and applications for replacement of work permits, the Department of Labor - Invalids and Social Affairs must record them in a tracking logbook and issue a receipt to the employer. The receipt must clearly state the date and month of receipt, the documents included in the application, and the response deadline."

5. Form number 6 is amended and supplemented as follows:

The phrase "General Director, Director" in the second line from the bottom shall be changed to "Employer".

This Circular takes effect fifteen days after its publication in the Official Gazette.

During implementation, if there are any difficulties, please promptly reflect them to the Ministry of Labor - Invalids and Social Affairs for research and resolution./.