Decree No. 46/2011/ND-CP amending and supplementing certain articles of Decree No. 34/2008/NĐ-CP dated March 25, 2008 of the Government on recruitment and management of foreigners working in Vietnam.

DECREE

Amending and supplementing some articles of Decree No. 34/2008/NĐ-CP dated March 25, 2008 of the Government on the recruitment and management of foreign workers in Vietnam.

 regarding the recruitment and management of foreign workers in Vietnam.

______________________________

THE GOVERNMENT

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

On the basis of the Labor Code dated June 23, 1994; Law amending and supplementing some articles of the Labor Code dated April 2, 2002; Law amending and supplementing some articles of the Labor Code dated June 29, 2006;

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

DECREE:

Article 1. Amending and supplementing some articles of Decree No. 34/2008/NĐ-CP dated March 25, 2008 of the Government regarding the recruitment and management of foreign workers in Vietnam as follows:

1. Supplementing Point l and m of Clause 2 of Article 1 as follows:

“l) Associations and business associations established in accordance with Vietnamese laws;

m) Individual households and individual businesses permitted to operate under Vietnamese laws by competent authorities.”

2. Amending and supplementing Clause 2 and 3 of Article 4 as follows:

“2. Application for registration of foreign labor recruitment: Foreign individuals submit two (2) sets of application forms to the employer, one set to be managed by the employer and another set to be used by the employer to apply for work permits. Each set includes the following:

a) The application form for foreign labor recruitment according to the prescribed model of the Ministry of Labor, Invalids and Social Affairs;

b) A criminal record certificate issued by the competent authority of the country where the foreign individual resides abroad when entering Vietnam. In case the foreign individual has resided in Vietnam for at least six (6) months, only a criminal record certificate issued by the Department of Justice of the province where the foreign individual resides is required;

c) A health certificate issued either abroad or in Vietnam according to the regulations of the Ministry of Health;

d) A certification of the foreign individual's high-level professional and technical qualifications.

For certain occupations and jobs, the certification of the foreign individual's high-level professional and technical qualifications may be replaced by the following documents:

- A certificate recognizing the foreign individual as a master craftsman in traditional trades issued by the competent authority of the foreign country for foreign individuals who are masters of traditional trades.

- A confirmation or work permit or employment contract confirming at least five (5) years of experience in the profession, production management, and administration, and being suitable for the job position the foreign individual intends to take. Such confirmation must be provided by enterprises, agencies, or organizations where the foreign individual has worked.

- A list of football clubs the player has participated in and must have a certificate from the club the player last played for, for football players.

- An air transport pilot license issued by the competent authority of Vietnam for foreign pilots.

- A maintenance aircraft permit issued by the competent authority of Vietnam for foreign individuals engaged in aircraft maintenance work.

- Other cases as specified by the Prime Minister.

đ) Three (3) color photographs (dimensions 3cm x 4cm, bareheaded, frontal view, clear face, clear ears, without glasses, white background), taken not more than six (6) months prior to the submission of the application by the foreign individual.

3. In cases where the documents stipulated in Points b, c, and d of Clause 2 of this Article are in a foreign language, they must be translated into Vietnamese and certified in accordance with Vietnamese laws.”

3. Amending and supplementing Point a of Clause 4 of Article 4 as follows:

“a) At least thirty (30) days before recruiting foreign workers, the employer must announce the need to recruit Vietnamese workers for the positions intended for foreign workers on at least one central newspaper and one local newspaper through one of the following methods: printed press, radio, television, or online media, including the number of workers needed, job positions, professional qualifications, salary, other income, working conditions, and other relevant information if requested by the employer.

In cases where the employer recruits foreign workers through employment intermediaries or where foreign individuals enter Vietnam to work in international schools under the jurisdiction of diplomatic missions of foreign countries or intergovernmental international organizations in Vietnam, there is no need to announce the recruitment needs on central and local newspapers as specified above.”

4. Amending and supplementing Clause 4 of Article 5 as follows:

“4. Foreign individuals must prepare the documents stipulated in Points b, c, d, and đ of Clause 2 of Article 4 of this Decree.”

5. Amend and supplement Clause 3 of Article 6 as follows:

“3. Foreign individuals must prepare the documents stipulated in Points b, c, d, and đ of Clause 2 of Article 4 of this Decree.”

6. Supplementing Article 6a after Article 6 as follows:

“Article 6a. Foreign individuals entering Vietnam to implement packages or projects of foreign contractors that have won bids in Vietnam

1. During the preparation of tender documents and request for proposal documents, the project owner must specify the content regarding the use of Vietnamese and foreign workers in accordance with the law, prioritizing the use of Vietnamese workers for tasks that Vietnamese workers can perform. If the package requires the use of foreign workers with appropriate expertise, the tender documents and request for proposal documents must include the foreign contractor’s plan for using foreign workers, including job positions, quantity, professional qualifications, experience, and duration of work.

2. The bid documents and proposal documents of foreign contractors must include plans for using Vietnamese and foreign workers as required by the project owner.

3. When implementing contracts, foreign contractors must comply with the content stated in their bid documents and proposal documents regarding the use of Vietnamese and foreign workers. Foreign contractors are responsible for reporting in writing to the Chairman of the People's Committee of the province or centrally administered city where the foreign contractor implements the package or project about the recruitment of Vietnamese workers, including job positions, quantity, professional qualifications, experience, and duration of work.”

The proposal to recruit Vietnamese workers from foreign contractors must be accompanied by the investor's confirmation regarding the labor usage plan declared in the bidding documents or proposal documents. In cases where foreign contractors need to adjust or supplement the number of workers already determined in the bidding documents or proposal documents, the investor must confirm the adjustment and supplementation plan for the labor needs of the foreign contractor.

4. The Chairman of the People's Committee of provinces and centrally governed cities shall be responsible for directing relevant agencies and organizations to introduce and supply Vietnamese workers to foreign contractors. Within a maximum period of sixty (60) days for proposals to recruit five hundred (500) or more Vietnamese workers, and thirty (30) days for proposals to recruit fewer than five hundred (500) Vietnamese workers, if the Chairman of the People's Committee of provinces and centrally governed cities fails to introduce or supply Vietnamese workers to the foreign contractor according to the aforementioned proposal, they shall consider and decide on allowing the foreign contractor to recruit foreign workers for positions that cannot be filled by Vietnamese workers.

5. Foreign contractors must complete procedures to apply for work permits for foreign workers working in Vietnam in accordance with the provisions of the law before the foreign workers start working in Vietnam.

6. The investor is responsible for guiding, urging, and inspecting foreign contractors to comply with regulations on hiring and using foreign workers in accordance with Vietnamese laws; monitoring and managing foreign workers in their compliance with Vietnamese laws at foreign contractors; quarterly reporting to the Department of Labor, Invalids and Social Affairs about the recruitment and management of foreign workers at foreign contractors under their responsibility as stipulated by the Ministry of Labor, Invalids and Social Affairs.

7. Quarterly, the Department of Labor, Invalids and Social Affairs shall be responsible for coordinating with public security agencies and other relevant agencies to inspect the implementation of Vietnamese laws by foreign workers at projects and contracts won by foreign contractors within their jurisdiction.

7. Amend and supplement Clause 3 of Article 8 as follows:

“3. Foreign individuals must prepare the documents stipulated in Points b, c, d, and đ of Clause 2 of Article 4 of this Decree.”

8. Supplement Points h, i, k, l, and m of Clause 1, Article 9 as follows:

“h) Foreign individuals serving as the Head of Representative Office, Project Office Manager, or those appointed by international non-governmental organizations to represent activities in Vietnam;

i) Foreign individuals transferring internally within enterprises within the scope of eleven service sectors committed to the World Trade Organization, including business services; information services; construction services; distribution services; education services; environmental services; financial services; health services; tourism services; cultural entertainment services; and transport services;

k) Foreign individuals entering Vietnam to provide professional and technical consulting services or perform other tasks serving research, construction, evaluation, monitoring, management, and implementation of programs and projects funded by official development assistance (ODA) in accordance with regulations or agreements in ODA-related international treaties signed between competent authorities of Vietnam and foreign countries;

l) Foreign individuals who have been granted press and journalism activity permits in Vietnam by the Ministry of Foreign Affairs in accordance with the law;

m) Other cases as prescribed by the Prime Minister.”

9. Amend and supplement Clause 3, Article 9 as follows:

“3. Documents for applying for work permits:

a) For foreign individuals applying for a work permit for the first time, the documents include:

- A request for a work permit issued by the employer, the Vietnamese partner, or the representative of the foreign non-governmental organization, in the format prescribed by the Ministry of Labor, Invalids and Social Affairs;

- Relevant documents of the foreign individual and related documents:

+ For foreign individuals hired through employment contracts, they must have the documents specified in Clause 2, Article 4 of this Decree and evidence proving that the employer has announced the need to hire Vietnamese workers for positions intended for foreign workers as stipulated in Point a, Clause 4, Article 4 of this Decree.

+ For foreign individuals transferring internally within enterprises, they must have the documents specified in Points b, c, d, and đ, Clause 2, Article 4 of this Decree, along with a document from the foreign enterprise assigning the foreign individual to work at its commercial presence in Vietnam.

+ For foreign individuals specified in Points c and d, Clause 1, Article 1 of this Decree, they must have the documents specified in Points b, c, d, and đ, Clause 2, Article 4 of this Decree, along with a contract signed between the Vietnamese partner and the foreign party.

+ For foreign individuals specified in Point e, Clause 1, Article 1 of this Decree, they must have the documents specified in Points b, c, d, and đ, Clause 2, Article 4 of this Decree, and a certificate of permission for the foreign non-governmental organization to operate in accordance with Vietnamese law.

+ For foreign individuals entering Vietnam to implement contracts or projects of foreign contractors that have won bids in Vietnam as stipulated in Article 6a of this Decree, they must have the documents specified in Points b, c, d, and đ, Clause 2, Article 4 of this Decree; for foreign individuals recruited by the contractor after winning the bid, they must also have a labor recruitment registration form as specified in Point a, Clause 2, Article 4 of this Decree and a confirmation document from the Chairman of the People's Committee of provinces and centrally governed cities as stipulated in Clause 4, Article 6a of this Decree.

b) For foreign individuals who have already been granted work permits, the documents include:

- A request for a work permit issued by the employer, the Vietnamese partner, or the representative of the foreign non-governmental organization, in the format prescribed by the Ministry of Labor, Invalids and Social Affairs;

- Relevant documents of the foreign individual and related documents:

+ For foreign individuals who have been granted work permits still in effect and wish to work for another enterprise in the same position as stated in the work permit, they must have three (3) color photographs as specified in Point đ, Clause 2, Article 4 of this Decree, and the work permit already issued or a copy of the work permit already issued.

+ For foreign individuals who have been granted a work permit that is still valid and wish to perform a different job position than that specified in their work permit, they must provide the documents stipulated in points c, d, and đ of Clause 2, Article 4 of this Decree and either the issued work permit or a copy thereof.

+ For foreign individuals who have been granted a work permit but whose permit has expired or become invalid and wish to work for another enterprise in the same job position as specified in their work permit, they must provide the documents stipulated in points c and đ of Clause 2, Article 4 of this Decree and either the issued work permit or a copy thereof.

10. Amend point b of Clause 5, Article 9 as follows:

“b) Within 10 (ten) working days from the date of receiving a complete and valid application for a work permit, the Department of Labor, Invalids and Social Affairs shall issue a work permit to the foreign individual. In case of refusal to issue a work permit, a written response with detailed reasons must be provided.”

11. Repeal point c of Clause 5, Article 9.

12. Amend and supplement Clause 6, Article 9 as follows:

“6. For foreign individuals working in Vietnam according to the provisions of Clause 1 of this Article, the employer, the Vietnamese partner, and the representative of a foreign non-governmental organization must report to the Department of Labor, Invalids and Social Affairs at the local place where the foreign individual regularly works a list of the foreign individual's details including: name, age, nationality, passport number, start and end date of work, and the job position of the foreign individual seven (seven) days before the foreign individual begins work.

For the subjects specified in points a, b, c, and d of Clause 1 of this Article, they must submit the foreign individual’s documents stipulated in points b, c, d, and đ of Clause 2, Article 4 of this Decree and ensure compliance with the conditions stipulated in Clauses 1, 2, 3, and 4 of Article 3 of this Decree.

For the subjects specified in points đ, e, g, h, i, k, l, and m of Clause 1 of this Article, the deadline for reporting the list of the foreign individual's details must be at least seven (seven) days before the foreign individual starts work.”

13. Amend and supplement point a of Clause 2, Article 10 as follows:

“a) For foreign individuals working under a labor contract, including:

- A request for extension of the work permit submitted by the employer according to the prescribed form of the Ministry of Labor, Invalids and Social Affairs;

- A copy of the vocational training contract signed between the enterprise and the Vietnamese worker to replace the job position currently held by the foreign individual as prescribed by the Ministry of Labor, Invalids and Social Affairs;

- A copy of the labor contract;

- The issued work permit.”

14. Amend and supplement Clause 4, Article 10 as follows:

“4. Procedure for extending the work permit:

a) At least ten (ten) days but not more than thirty (thirty) days before the expiration date of the work permit, the employer and the Vietnamese partner must submit an application for extension of the work permit to the Department of Labor, Invalids and Social Affairs that issued the work permit.

b) Within ten (ten) working days from the date of receiving a complete and valid application for extension of the work permit, the Department of Labor, Invalids and Social Affairs must extend the work permit. In case of refusal to extend the work permit, a written response with detailed reasons must be provided.”

15. Amend and supplement Article 11 as follows:

“Article 11. Issuance of a new work permit

1. Cases for issuance of a new work permit:

a) Loss of the work permit;

b) Damage to the work permit;

c) Change in the passport number or workplace recorded on the issued work permit.

2. Documents for application for issuance of a new work permit:

a) A request for issuance of a new work permit submitted by the foreign individual according to the prescribed form of the Ministry of Labor, Invalids and Social Affairs, which must clearly explain the reason for loss, damage, or change in the passport number or workplace and must be confirmed by the employer and the Vietnamese partner;

b) The issued work permit in cases specified in points b and c of Clause 1 of this Article.

3. The validity period of the newly issued work permit will be the remaining time of the original work permit minus the duration of work performed by the foreign individual up to the date of application for issuance of a new work permit.

4. Procedure for issuance of a new work permit:

a) Within three (three) working days from the date the foreign individual discovers the loss, damage, or change in the passport number or workplace recorded on the issued work permit, the foreign individual is responsible for reporting to the employer, the Vietnamese partner, and the representative of a foreign non-governmental organization. The employer, the Vietnamese partner, and the representative of a foreign non-governmental organization must notify the Department of Labor, Invalids and Social Affairs that issued the work permit about the loss, damage, or change in the passport number or workplace recorded on the work permit. Within thirty (thirty) days from the date of loss, damage, or change in the passport number or workplace recorded on the work permit, the employer, the Vietnamese partner, and the representative of a foreign non-governmental organization must submit an application for issuance of a new work permit to the Department of Labor, Invalids and Social Affairs that issued the work permit;

b) Within three (three) working days from the date of receiving a complete and valid application for issuance of a new work permit, the Department of Labor, Invalids and Social Affairs must issue a new work permit. In case of refusal to issue a new work permit, a written response with detailed reasons must be provided.”

16. Amend and supplement Clause 3, Article 14 as follows:

"3. Foreigners working in Vietnam, except for those specified in Clause 1, Article 9 of this Decree who have not yet been granted a work permit, must go through the procedures to apply for a work permit in accordance with the provisions of this Decree. After six months from the date this Decree takes effect, if foreigners working in Vietnam do not have a work permit or have not submitted the application dossier for a work permit as prescribed, the Department of Labor, Invalids and Social Affairs shall request the police authority to compel them to leave the country or to deport them in accordance with the law."

17. Supplement Article 15a following Article 15 as follows:

"Article 15a. Responsibilities of the Ministry of Public Security

1. Direct and guide competent public security agencies:

a) To issue visas for foreigners after they have been granted a work permit, extended a work permit, or reissued a work permit.

b) Not to issue visas for foreigners working in Vietnam who have not been granted a work permit or whose work permit has expired or become invalid, except for those specified in Clause 1, Article 9 of this Decree.

Do not extend temporary residence permits, compel departure, or deport foreigners working in Vietnam who have not been granted a work permit or whose work permit has expired or become invalid, except for those specified in Clause 1, Article 9 of this Decree.

2. Take the lead and coordinate with the Ministry of Labor, Invalids and Social Affairs to guide the procedures and formalities for submitting lists of foreigners granted work permits, extended work permits, and reissued work permits by the Department of Labor, Invalids and Social Affairs to the immigration management agency in accordance with Clause 2, Article 18 of this Decree.

3. Guide on the authority, procedures, grounds for applying, and the dossier for requesting penalties of compelling departure or deportation against foreigners without a work permit after receiving the proposal from the Department of Labor, Invalids and Social Affairs."

18. Supplement Article 16a following Article 16 as follows:

"Article 16a. Responsibilities of the Ministry of Industry and Trade

Guide the basis, procedures, and formalities for determining foreign individuals moving internally within enterprises within the scope of 11 service sectors listed in Point i, Clause 1, Article 9 of this Decree under Vietnam's commitments to the World Trade Organization."

19. Amend and supplement Clause 2 of Article 18 as follows:

"2. Implement the issuance of work permits, extension of work permits, and reissuance of work permits in accordance with this Decree and send lists of foreigners granted work permits, extended work permits, and reissued work permits to the immigration management agency for inspection and entry procedures, issuance of residence cards for foreigners working in Vietnam."

20. Supplement Clause 7 of Article 19 as follows:

"7. Annually, employers must register their demand for hiring and using foreigners in writing, including: number, professional qualifications, experience, salary level, working period (start and end) for each job position with the Department of Labor, Invalids and Social Affairs in accordance with regulations of the Ministry of Labor, Invalids and Social Affairs. In case of changes in the demand for using foreigners, employers must register additional demands for hiring and using foreigners in writing at least thirty days before the employer announces the need to hire foreigners.

The Department of Labor, Invalids and Social Affairs is responsible for compiling and reporting the demand for hiring and using foreigners in accordance with regulations of the Ministry of Labor, Invalids and Social Affairs."

21. Amend and supplement Clause 1 of Article 20 as follows:

"1. For foreigners who are spouses of individuals enjoying diplomatic or consular privileges and immunities working for enterprises or organizations in Vietnam, there must be an agreement between Vietnam and the relevant country and a work permit, except in cases where Vietnam has signed an agreement or agreement providing otherwise.

The dossier, procedures, and formalities for issuing work permits for such spouses shall be carried out in accordance with the regulations of the Ministry of Labor, Invalids and Social Affairs and the Ministry of Foreign Affairs.

For foreigners who are students studying at schools or training institutions abroad coming to Vietnam for internships in enterprises, agencies, or organizations, the enterprises, agencies, or organizations hosting these interns must report in accordance with the regulations of the Ministry of Labor, Invalids and Social Affairs."

Article 2. Effective Date

1. This Decree takes effect from August 1, 2011.

2. Ministers, Heads of ministerial-level agencies, Heads of government-affiliated agencies, Chairpersons of provincial People's Committees directly under the central government shall be responsible for enforcing this Decree./.