Circular No. 40/2016/TT-BLDTBXH guiding the implementation of certain provisions of Decree No. 11/2016/NĐ-CP dated February 3, 2016 of the Government detailing the implementation of certain articles of the Labor Code regarding foreign workers working in Vietnam.

REGULATION LEGAL

Guidelines for implementing certain provisions of Decree No. 11/2016/NĐ-CP dated February 3, 2016

of the Government detailing the implementation of certain provisions of the Labor Code regarding foreign workers working in Vietnam Pursuant to Decree No. 11/2016/NĐ-CP dated February 3, 2016 of the Government detailing the implementation of certain provisions of the Labor Code regarding foreign workers working in Vietnam;

The Minister of Labor, Invalids and Social Affairs issues this Circular guiding the implementation of certain provisions of Decree No. 11/2016/NĐ-CP of the Government detailing the implementation of certain provisions of the Labor Code regarding foreign workers working in Vietnam (hereinafter referred to as Decree No. 11/2016/NĐ-CP). 

Pursuant to Decree No. 106/2012/NĐ-CP dated December 20, 2012, of the Government, stipulating the functions, tasks, powers, and organizational structure of the Ministry of Labor, Invalids, and Social Affairs;

Article 1. This Circular guides the implementation of certain provisions of Decree No. 11/2016/NĐ-CP on issuing work permits for foreign workers working in Vietnam.

At the proposal of the Director of the Employment Department;

Article 2. The objects subject to this Circular are those specified in Article 2 of Decree No. 11/2016/NĐ-CP and other relevant agencies, organizations, and individuals.

PART I

GENERAL PROVISIONS

Article 1. Scope of Regulation and Applicability

Article 2. Service providers under contract, foreign workers working through service bidding, and employers in certain special cases

Clause 1. A service provider under contract as defined in point d, Clause 1 of Article 2 of Decree No. 11/2016/NĐ-CP is a foreign worker who has worked for at least two years (24 months) in a foreign enterprise without a commercial presence in Vietnam and must meet the conditions for experts as stipulated in Clause 3 of Article 3 of Decree No. 11/2016/NĐ-CP.

Clause 2. A foreign worker working through service bidding as defined in point đ, Clause 1 of Article 2 of Decree No. 11/2016/NĐ-CP is a foreign worker who does not reside in Vietnam and does not receive remuneration from any source in Vietnam, participating in activities related to representing a service provider in negotiating the sale of that provider's services, provided that they do not sell such services directly to the public and do not directly provide such services.

Clause 3. Employers in certain special cases:

Point a) For foreign workers as defined in points c and d, Clause 1 of Article 2 of Decree No. 11/2016/NĐ-CP, the employer is the partner in Vietnam where the foreign worker comes to work to fulfill various contracts.

Point b) For foreign workers as defined in points đ and h, Clause 1 of Article 2 of Decree No. 11/2016/NĐ-CP, the employer is the foreign worker entering Vietnam to bid for services, the person responsible for establishing a commercial presence.

Article 3. Competent authority for issuing work permits

Clause 1. The Ministry of Labor, Invalids and Social Affairs approves the demand for using foreign workers; confirms cases where foreign workers do not require work permits; issues, reissues work permits; revokes work permits and confirms the revocation of work permits; requests the police to deport foreign workers working in Vietnam without work permits, working for employers, including:

Point b) Foreign non-governmental organizations, international organizations in Vietnam;

Point c) Public service organizations as stipulated in point a, b, c, Clause 1 of Article 2 of Decree No. 55/2012/NĐ-CP dated June 28, 2012 of the Government on the establishment, restructuring, and dissolution of public service units, including public service units under: Ministries, ministerial-level agencies, government agencies; organizations established by the Government that are not public service units; Hanoi National University, Ho Chi Minh City National University;

Point d) Office of foreign projects or international organizations in Vietnam;

Point đ) Business associations, business associations established in accordance with the law.

Clause 2. Provincial Departments of Labor, Invalids and Social Affairs confirm cases where foreign workers do not require work permits; issue, reissue work permits; revoke work permits and confirm the revocation of work permits; request the police to deport foreign workers working in Vietnam without work permits, working for employers, including:

Point c) Political organizations, political-social organizations, political-social-professional organizations, social organizations, social-professional organizations at the local level;

Point d) Public service organizations as stipulated in points d, đ, e, Clause 1 of Article 2 of Decree No. 55/2012/NĐ-CP dated June 28, 2012 of the Government on the establishment, restructuring, and dissolution of public service units, including public service units under: People's Committees of provinces; specialized agencies under provincial People's Committees; People's Committees of districts, towns, cities under provinces.

c) Political organizations, political-social organizations, political-social-professional organizations, social organizations, social-professional organizations at the local level;

Article 4. Employment of Foreign Workers

In case there is a change in the need for employing foreign workers, the employer shall submit a report explaining the change according to Form No. 2 issued together with this Circular to the approving authority at least 30 days before the planned date of employment of foreign workers.

2. The approving authority shall notify the approval of the employment of foreign workers to the employer according to Form No. 3 issued together with this Circular within 15 days from the date of receipt of the report explaining or the report explaining the change.

Article 5. Employment of Foreign Workers by Contractors

1. The contractor shall propose the recruitment of Vietnamese workers for positions intended to recruit foreign workers as stipulated in Clause 1, Article 5 of Decree No. 11/2016/ND-CP according to Form No. 4 issued together with this Circular to the Chairman of the People's Committee of the province where the contractor implements the tender package.

In case there is a need to adjust or supplement the number of foreign workers already declared, the contractor shall implement according to Form No. 5 issued together with this Circular to the Chairman of the People's Committee of the province where the contractor implements the tender package.

2. The Chairman of the People's Committee of the province shall direct local agencies and organizations to introduce and supply Vietnamese workers to the contractor. In case it is not possible to introduce and supply Vietnamese workers, the Chairman of the People's Committee of the province shall decide on the recruitment of foreign workers by the contractor for positions that cannot be filled by Vietnamese workers according to Form No. 6 issued together with this Circular.

ISSUE, RENEWAL, REVOCATION OF WORK PERMITS

Article 6. Documents for Application for Work Permit

The documents prescribed in Clauses 1, 4 and Clause 7, Article 10 of Decree No. 11/2016/ND-CP shall be implemented as follows:

1. The application document for work permit of the employer as prescribed in Clause 1, Article 10 of Decree No. 11/2016/ND-CP according to Form No. 7 issued together with this Circular.

2. The document proving expertise as prescribed in Clause 4, Article 10 of Decree No. 11/2016/ND-CP shall be one of the following documents:

a) A confirmation document from an agency, organization, enterprise abroad certifying the person as an expert, including: name of the confirming agency, organization, enterprise; information about the expert: full name, date of birth, nationality and field of expertise corresponding to the position the foreign worker is expected to work in Vietnam;

b) Proof documents as prescribed in Point b, Clause 3, Article 3 of Decree No. 11/2016/ND-CP.

3. The document proving technical labor as prescribed in Clause 4, Article 10 of Decree No. 11/2016/ND-CP shall include:

a) Proof documents or confirmation letters from agencies, organizations, enterprises abroad regarding having been trained in a technical field or another field for at least one year corresponding to the position the foreign worker is expected to work in Vietnam;

b) Proof documents showing at least three years of experience working in the trained field corresponding to the position the foreign worker is expected to work in Vietnam.

4. The document proving that the foreign worker has been employed by a foreign enterprise for at least 12 months prior to working in Vietnam as prescribed in Point a, Clause 7, Article 10 of Decree No. 11/2016/ND-CP shall be one of the following documents:

a) Confirmation letter from the employer regarding the employment of the foreign worker;

b) Labor contract;

c) Decision on hiring the foreign worker;

d) Certificate of tax payment or insurance of the foreign worker.

5. The document proving that the foreign worker has worked for a foreign enterprise without a commercial presence in Vietnam for at least two years as prescribed in Point c, Clause 7, Article 10 of Decree No. 11/2016/ND-CP shall be one of the documents prescribed in Clause 4 of this Article.

Article 7. Labour Permit

1. The model of the labour permit as prescribed in Clause 2, Article 12 of Decree No. 11/2016/NĐ-CP:

a) The labour permit has the size of A4 (21 cm x 29.7 cm), consisting of two pages: page 1 is blue, laminated; page 2 has a white background with blue patterns, and in the center is a star.

b) The contents of the labour permit according to Model No. 8 issued together with this Circular.

Article 8. Request for Reissuance of Labour Permit

The request for reissuance of the labour permit by the employer as prescribed in Clause 1, Article 14 of Decree No. 11/2016/NĐ-CP according to Model No. 7 issued together with this Circular.

Article 9. Accumulated Time within One Year

The accumulated time within one year as prescribed in Point e, Clause 2, Article 7 of Decree No. 11/2016/NĐ-CP means a continuous period of twelve months and is calculated from the date when the foreign worker starts working in Vietnam.

Article 10. Submission and Receipt of Application Files for Issuance and Reissuance of Labour Permits; Confirmation that Foreign Workers Do Not Qualify for Labour Permits

1. The employer submits the application file for issuance and reissuance of the labour permit to the authority issuing the labour permit.

2. The employer submits the application file for confirmation that the foreign worker does not qualify for a labour permit to the authority issuing the labour permit, including the request for confirmation that the foreign worker does not qualify for a labour permit according to Model No. 9 issued together with this Circular.

3. When receiving the application files for issuance and reissuance of the labour permit, and confirmation that the foreign worker does not qualify for a labour permit, the authority issuing the labour permit must record in the tracking book according to Model No. 10 issued together with this Circular and issue a receipt to the employer. In the receipt, it must clearly state the date, month, and year of receipt of the file; the documents included in the file and the deadline for response.

4. The authority issuing the labour permit retains the application files for issuance and reissuance of the labour permit, and confirmation that the foreign worker does not qualify for a labour permit in accordance with the provisions of the law.

Article 11. Response to Non-Issuance and Non-Reissuance of Labour Permits; Confirmation that Foreign Workers Do Not Qualify for Labour Permits

1. In cases where the labour permit is not issued as prescribed in Clause 2, Article 12 of Decree No. 11/2016/NĐ-CP, and the labour permit is not reissued as prescribed in Clause 2, Article 15 of Decree No. 11/2016/NĐ-CP, the authority issuing the labour permit responds in writing according to Model No. 11 issued together with this Circular.

2. The authority issuing the labour permit confirms that the foreign worker does not qualify for a labour permit as prescribed in Clause 4, Article 8 of Decree No. 11/2016/NĐ-CP according to Model No. 12 issued together with this Circular. In cases where the foreign worker does not qualify for a labour permit is not confirmed, there shall be a written response stating the reasons.

1. Revocation of the labour permit as prescribed in Clause 1, Article 17 of Decree No. 11/2016/NĐ-CP:

a) Within fifteen days from the date the labour permit expires, the employer recovers the labour permit of the foreign worker and returns it to the authority that issued the labour permit along with a written statement detailing the reasons for each case of revocation, and the cases subject to revocation but not recovered;

b) Within five days from the date of receiving the revoked labour permit accompanied by the written statement of the employer as stipulated in point a of this clause, the authority issuing the labour permit issues a written confirmation of receipt of the revoked labour permit from the employer.

2. Decision on revocation of the labour permit as prescribed in Point b, Clause 3, Article 17 of Decree No. 11/2016/NĐ-CP according to Model No. 13 issued together with this Circular.

Article 13. Reporting regime

1. Quarterly, before the fifth day of the first month of the next quarter, the project investor reports on the situation of using foreign workers according to Model No. 14 issued together with this Circular to the Department of Labour, Invalids and Social Affairs.

2. Before the tenth day of the first month, before the fifteenth day of July and January of the year, the Department of Labour, Invalids and Social Affairs reports on the situation of foreign workers in their jurisdiction according to Model No. 15 issued together with this Circular to the Ministry of Labour, Invalids and Social Affairs.

Chapter III

IMPLEMENTATION

Article 14. Responsibilities of the Employment Agency

1. Promote, disseminate, and train on legal provisions regarding foreign workers working in Vietnam.

2. Receive information about foreign workers working in Vietnam in accordance with point c, Clause 2, Article 20 of Decree No. 11/2016/NĐ-CP.

3. Manage, guide, and inspect the implementation of legal provisions regarding foreign workers working in Vietnam.

4. Compile and report on the situation of foreign workers working in Vietnam.

5. Fulfill the responsibilities of the Ministry of Labor - Invalids and Social Affairs stipulated in Clause 1, Article 3 and Clause 2, Article 7 of this Circular.

Article 15. Responsibilities of the Chairman of the People's Committee at the provincial level

1. Direct functional agencies at the local level to organize the promotion and dissemination of laws; inspect, audit, and handle violations according to legal regulations on the recruitment and management of foreign workers working in the locality.

2. Direct local agencies and organizations to introduce and supply Vietnamese labor to contractors.

3. Decide on allowing contractors to recruit foreign workers for positions that cannot be filled by Vietnamese workers in the locality.

4. Approve positions that can employ foreign workers in the locality or delegate to authorized agencies.

Article 16. Responsibilities of the Department of Labor, Invalids and Social Affairs

1. Organize the promotion and dissemination of Vietnamese labor laws to enterprises and organizations in the locality.

2. Receive, compile, review, approve, and notify about the demand for using foreign workers according to the delegation from the Chairman of the People's Committee at the provincial level.

3. Organize the introduction and supply of Vietnamese labor to contractors in the locality in accordance with legal regulations.

4. Inspect, audit, and report on the implementation of legal regulations on the recruitment and management of foreign workers working in the locality.

5. Apply information technology in managing and issuing, reissuing work permits, and confirming non-requirement for work permit issuance for foreign workers working in the locality.

Article 17. Responsibilities of employers

1. Comply with all legal regulations of Vietnam regarding foreign workers working in Vietnam.

2. Guide and provide foreign workers with legal regulations of Vietnam regarding foreign workers working in Vietnam.

3. Process applications for issuance, reissuance of work permits, and confirmation of non-requirement for work permit issuance for foreign workers working in Vietnam.

4. Fully implement labor contracts signed with foreign workers working in enterprises and organizations in accordance with legal regulations; send notification letters about signing labor contracts along with copies of signed labor contracts to the work permit issuing authority.

5. Manage files and regularly update and supplement related documents for foreign workers working in enterprises and organizations.

6. Report on the use of foreign workers as required by state authorities.

Chapter IV

IMPLEMENTING PROVISIONS

Article 18. Effective Date

1. This Circular takes effect from December 12, 2016, and replaces Circular No. 03/2014/TT-BLĐTBXH dated January 20, 2014, issued by the Ministry of Labor - Invalids and Social Affairs guiding the implementation of certain articles of Decree No. 102/2013/NĐ-CP dated September 5, 2013, of the Government detailing the implementation of certain articles of the Labor Code regarding foreign workers working in Vietnam.

2. Foreign workers who have been granted work permits and whose permits are still valid and are transferred, redeployed, or seconded to work in another province or city for the same position for a continuous period of ten days or more do not need to obtain new work permits but the employer must notify in writing the Department of Labor - Invalids and Social Affairs in the province or city where the foreign worker will work including the name of the enterprise or organization; place of work; job position; job title; working time of the foreign worker and attach a certified copy of the work permit already issued.

3. For foreign workers who are experts or technical workers and have been granted work permits, the valid work permit is considered a document proving compliance with the requirements stipulated in point d, Clause 8, Article 10 and point d, Clause 3, Article 14 of Decree No. 11/2016/NĐ-CP in the application for issuance or reissuance of work permits.

During implementation, if there are difficulties, please reflect them to the Ministry of Labor - Invalids and Social Affairs for timely guidance and supplementation.